MANUFACTURED JURISDICTION: "the circumstances relied upon to establish federal jurisdiction over the offenses charged were artificially created by the Government in an attempt to exceed the proper scope of federal law enforcement." 501 F.Supp. at 1205. 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. COPPER, CADMIUM, AND ZINC; QAPP Information: QA Info Missing; Keswick dam to Cottonwood creek; Final Listing Decision: Delist from 303(d) list. JUNE 15, 2010;
(Rules of the road? Stay out of ditch.)
SEPARATION OF CHURCH AND STATE
The Colbert Report Mon - Thurs 11:30pm / 10:30c The Word - Priceless
Colbert Report Full Episodes Political Humor & Satire Blog</a> Video Archive " Eritis insuperabiles, si fueritis inseparabiles. Explosum est illud diverbium: Divide, & impera, cum radix & vertex imperii in obedientium consensus rata sunt. " [You would be insuperable if you were inseparable. This proverb, Divide and rule, has been rejected, since the root and the summit of authority are confirmed by the consent of the subjects.] Lord Coke
The Constitution in One Sentence
In a certain sense, the Tenth Amendment—the last of the 10 amendments that make up the Bill of Rights—is but a truism that adds nothing to the original Constitution. Since the federal government only possesses those powers which are delegated to it (Article I, Section 1), this amendment merely restates that all powers not delegated are in fact reserved to the States or to the sovereign people. In this sense, the Tenth Amendment concisely articulates the very idea and structure of a government of limited powers. The Tenth Amendment reinforces the federal system created by the Constitution and acts as a bulwark against federal intrusion on state authority and individual liberty. While the Supreme Court has countenanced a far-reaching expansion of federal power since the New Deal, Congress, as a co-equal branch of government, is not bound by these precedents and should uphold the concept of federalism embodied in this amendment. This essay is adapted from The Heritage Guide to the Constitution for a new series providing constitutional guidance for lawmakers.
“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.”
— Amendment 10
Call for Justice at Superfund Sites
EPA staff forced to ignore science
EPA Signs Agreement for State Voluntary Cleanup Program
EPA Said to Have Suppressed, Misclassified Records
Internal Audit Suggests EPA Complicit in Environmental Racism
Why the Environmental Protection Agency must be abolished
A Constitutional Convention Can Rein in Washington
BY JAMES M. LEMUNYON - THE WALL STREET JOURNAL - OPINION
The U.S. Congress is in a state of serious disrepair and cannot fix itself. It has reached this point over the course of many years—in fact over many decades. Regardless of the party in power, Congress has demonstrated a growing inability to effectively address the major issues of our time, including soaring federal debt and the extension of federal authority to states and localities.
The only effective remedy is constitutional reform to rein in congressional excesses and abuses. But Congress can't be expected to propose amendments to fix itself, as it has an inherent conflict of interest.
Under the U.S. Constitution, Congress has the power to make criminal only four types of conduct: treason, counterfeiting, piracies and felonies on the high seas, and offenses against the laws of nations.
The U.S. Declaration of Independence states that "when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty , to throw off such Government"
“I believe that banking institutions are more dangerous to our liberties than standing armies. Already they have raised up a moneyed aristocracy that has set the government at defiance. The issuing power should be taken from the banks and restored to the people, to whom it properly belongs.” – Thomas Jefferson
“WHEN ALL GOVERNMENT, DOMESTIC AND FOREIGN, IN LITTLE AS IN GREAT THINGS, SHALL BE DRAWN TO WASHINGTON AS THE CENTER OF POWER, IT WILL RENDER POWERLESS THE CHECKS PROVIDED OF ONE GOVERNMENT ON ANOTHER AND WILL BECOME AS VENAL AND OPPRESSIVE AS THE GOVERNMENT FROM WHICH WE SEPARATED.” – Thomas Jefferson
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).
CERCLA is a coercive intolerable act, "impolitic, unjust, and cruel,"
We are entitled to life, liberty, and property, and we have never ceded to any sovereign power whatever, a right to dispose of either without our consent.
When in the Course of human events, it becomes necessary for one people to dissolve the political bands which have connected them with another, and to assume among the powers of the earth, the separate and equal station to which the Laws of Nature and of Nature's God entitle them, a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation.
You have obstructed the Administration of Justice, by refusing your Assent to the constitutional limitations of Federal Judiciary Powers.
You have erected a multitude of New Offices, and sent hither swarms of Officers to harrass our People, and eat out our substance.
You have kept among us, in times of peace, a Standing Army without our Consent.
You have combined with others to subject us to a jurisdiction foreign to our constitution, and unacknowledged by our laws; giving your Assent to their Acts of pretended Legislation:
You have abdicated Government here, by declaring us out of your Protection and waging War against us.
For depriving us of the benefits of Trial by Jury:
You have plundered our Trusts, ravaged our Lands, burnt our Township, and destroyed the lives of our people.
In every stage of these Oppressions we have Petitioned for Redress in the most humble terms: Our repeated Petitions have been answered only by repeated injury. A Judge, whose character is thus marked by every act which may define a Tyrant, is unfit to be the Judge of a free people.
The sole excuse for 30 years of piracy, extortion, despotism, tyranny, and oppression against Mr. T.W. Arman is the cost of dilution water from Shasta dam during droughts for the protection of the juvenile fish hatched and propogated in the artificial (i.e. manmade) Keswick lake.
Rather than allow the naturally occuring minerals to dissolve in stormwater runoff as it has for hundreds of thousands of years, the EPA chose to make an acutely toxic sludge and dispose it in a shoddily constructed disposal pit on top of the old brick flat open pit mine at Iron Mountain. The disposal pit has failed and the drainage is no longer recovered for treatment. It is unknown exactly where it drains to now.
Iron Mountain has accumulated over a billion pounds of this sludge. Despite constant efforts to initiate a recycling and reclamation plan, the EPA has defied every effort to implement an appropriate common sense approach to a remedy for this problem.
Thomas A. Bloomfield - EPA Region 9
As the assistant regional counsel for Region 9 of the U.S. Environmental Protection Agency (EPA), Thomas A. Bloomfield brokered a $1 billion settlement with the former owner of Iron Mountain Mine near Redding. The settlement is one of the largest in the history of both federal and California environmental protection programs and was made possible by an innovative insurance-based financing program.
In 1983 the EPA placed Iron Mountain on its Superfund list of the nation's most dangerous toxic sites. Litigation was brought by state and federal officials against the owner of the mine, formerly Rhone-Poulenc, now Aventis CropSciences USA, a chemical, pharmaceutical, and biotechnology company, for past and future cleanup costs.
The final settlement negotiated by Bloomfield sets up a finance program to fund a treatment plant that will process the contaminated runoff. The key piece of the deal is an insurance policy that will be purchased by the former owner of the mine and will pay out an estimated $200 million over 30 years for cleanup costs and will cover an additional $100 million if necessary, along with additional payouts to the EPA and state and federal trustee agencies. In 2030 the policy will pay a lump sum of $514 million to the state and federal government to continue the cleanup.
Michael Hingerty, deputy branch chief for Region 9, worked on the case from 1987 until turning it over to Bloomfield in 1996. Tim Gallagher of Gallagher & Gallagher in Los Angeles also contributed significantly to the settlement.Superfund at 30 - toxic waste cleanups drag on
Monopoly
Section 2 of the Act forbade monopoly . In Section 2 cases, the court has, again on its own initiative, drawn a distinction between coercive and innocent monopoly. The act is not meant to punish businesses that come to dominate their market passively or on their own merit, only those that intentionally dominate the market through misconduct, which generally consists of conspiratorial conduct of the kind forbidden by Section 1 of the Sherman Act, or Section 3 of the Clayton Act.
Internal Audit Suggests EPA Complicit in Environmental Racism
by Catherine Komp
Environmentalists, civil rights advocates and even federal auditors say the US government is ignoring its duty to protect low-income people and people of color from harmful pollution in their communities.
Last month, the Environmental Protection Agency's Office of the Inspector General found the Agency does not know if its policies and programs are negatively affecting poor people because it has not conducted proper "environmental justice" reviews.
"The term of ‘environmental justice' is kind of a cleaned-up term," said Felicia Eaves, campaign organizer with the grassroots group Women's Voices for the Earth. "[The term] actually started out as ‘environmental racism.'"
Tempers Flare at Environmental Justice Conference
Fair Use Statement Source: ENSTempers Flare at Environmental Justice Conference, By Brian Hansen
ARLINGTON, Virginia, December 12, 2000 (ENS) - Members of a federal government advisory panel today lambasted President Bill Clinton, Vice President Al Gore and the U.S. Environmental Protection Agency for failing to aggressively combat the scourge of "environmental racism" that they maintain is afflicting many poor communities and communities of color.
District Court Finds Non-Settling PRP Can Intervene in CERCLA Consent Decree
On January 15, 2010, the U.S. District Court for the Northern District of West Virginia held that a PRP's right to contribution under CERCLA is a significantly protectable interest permitting a non-settling PRP to intervene as of right to challenge a
consent decree between the federal government and a settling PRP.
United States v. Exxon Mobil Corp., No. 08-124District Court Allows PRP to Amend Claim 2 Years after Atlantic Research
On January 20, 2010, the United States District Court for the Southern District of Illinois granted a CERCLA PRP's motion for leave to file an amended pleading seeking cost recovery under CERCLA § 107(a),
Second Circuit Affirms CERCLA Veil-Piercing to Impose Liability on Former Parent
In an unpublished opinion issued on December 10, 2009, the U.S. Court of Appeals for the Second Circuit affirmed a plaintiff corporation's recovery of CERCLA response costs from a company whose predecessor had once been the plaintiff's parent. Rochester Gas and Elec. Corp. v. GPU, Inc., No. 09-0482-cv, 2009 WL 4673916 (2d Cir. Dec. 10, 2009).Tenth Circuit Upholds Remand of Class Action Involving “CERCLA Quality Cleanup”
On September 4, 2009, the U.S. Court of Appeals for the Tenth Circuit affirmed a lower court's remand to state court of a state law class action involving injuries allegedly arising out of contamination at a state-remediated site, holding that neither the Class Action Fairness Act (“CAFA”) nor CERCLA provided a basis for federal jurisdiction. Coffey v. Freeport McMoran Copper & Gold, 2009 U.S. App. LEXIS 19996 (10th Cir. Sep. 4, 2009).Natural Resource Damage Claims Insufficient for Federal
Jurisdiction
On August 21, 2009, the U.S. District Court for the District of the Virgin Islands held that a territory's common law claims for natural recourse damages against manufacturers of dry cleaning chemicals for a site on the National Priorities List are not subject to federal jurisdiction. Mathes v. Vulcan Materials Co., 2009 U.S. Dist. LEXIS 74736 (D.V.I. Aug. 21, 2009).Destruction of Samples Leads to Preclusion of Contamination Evidence
On May 21, 2009, the U.S. District Court for the District of Connecticut held that when a consulting firm hired by a CERCLA plaintiff to take soil samples did not preserve the samples or the analytical data, and the property was remediated before other parties could sample, plaintiff is precluded from offering any evidence based on the destroyed samples. Innis Arden Golf Club v. Pitney Bowes, Inc., 2009 U.S. Dist. LEXIS 43588 (D. Conn. May 21, 2009).“Where a court failed to observe safeguards, it amounts to denial of due process of law, court is deprived of juris.” Merritt v. Hunter, C.A. Kansas 170 F2d 739.
“Once jurisdiction is challenged, the court cannot proceed when it clearly appears that the court lacks jurisdiction, the court has no authority to reach merits, but, rather, should dismiss the action.” Melo v. US, 505 F2d 1026.
Excercising your constitutional right cannot be converted into a crime or have sanctions levered against it: The state cannot diminish rights of the people. [Hertado v. California, 100 US 516.]
Where rights secured by the Constitution are involved, there can be no rule making or legislation which would abrogate them. [Miranda v. Arizona, 384 US 436, 491.]
There can be no sanction or penalty imposed upon one because of this exercise of constitutional rights. [Sherer v. Cullen, 481 F 946.]
"judges of courts of limited jurisdiction are entitled to absolute immunity for their judicial acts unless they act in the clear absence of all jurisdiction." King v. Love, 766 F.2d 962, 966 (6th Cir.), cert. denied, 474 U.S. 971, 106 S.Ct. 351, 88 L.Ed.2d 320 (1985).
Thus, for example, a criminal court judge would be immune from liability for convicting a defendant of a nonexistent crime, an act taken in excess of his jurisdiction, whereas a probate court judge would not be immune from liability if he tried a criminal case because he clearly lacked all subject matter jurisdiction. Id. (citing Bradley, 80 U.S. (13 Wall.) at 352).
Excerpt from page 974 F.2d 1329, 1992 WL 214444 (1st Cir.(Mass.)) Federal courts "have proceeded on the assumption that common-law principles of legislative and judicial immunity were incorporated into our judicial system and that they should not be abrogated absent clear legislative intent to do so." Pulliam v. Allen, 466 U.S. 522, 529 (1984). Under the common law, judges are generally immune from civil liability for judicial acts, subject to the conditions described above, but they do not enjoy immunity from criminal liability. See O'Shea v. Littleton, 414 U.S. 488, 503 (1974).
In the following cases, courts have found that the judges acted outside of their judicial capacity and were not entitled to immunity: Forrester v. White, 484 U.S. 219, 108 S.Ct. 538, 98 L.Ed.2d 555 (1988)(state court judge did not have absolute immunity from damages suit under S 1983 for his decision to demote and dismiss a probation officer); Morrison v. Lipscomb, 877 F.2d 463 (6th Cir.1989)(state court judge was not entitled to judicial immunity in connection with order declaring moratorium on issuance of writs of restitution from December 15 through January 2, as judge was acting in administrative and not judicial capacity); King v. Love, 766 F.2d 962, 968 (6th Cir.), cert. denied, 474 U.S. 971, 106 S.Ct. 351, 88 L.Ed.2d 320 (1985)(although setting bond on an arrest warrant is a judicial act, the act of deliberately misleading the police officer who was to execute the warrant about the identity of the person sought was nonjudicial); Sevier v. Turner, 742 F.2d 262 (6th Cir.1984)(juvenile court judge's initiation of criminal prosecution and civil contempt proceeding against father for child support in arrears constituted nonjudicial acts); New Alaska Development Corporation v. Guetschow, 869 F.2d 1298 (9th Cir.1988)(receiver appointed by state court to manage business assets of an estate was entitled to absolute derivative judicial immunity, but receiver was not absolutely immune from allegations that he stole assets or slandered parties, as such alleged acts were not judicial); Harper v. Merckle, 638 F.2d 848 (5th Cir.), cert. denied, 454 U.S. 816, 102 S.Ct. 93, 70 L.Ed.2d 85 (1981)(holding a contempt proceeding and ordering plaintiff incarcerated were not judicial acts where controversy that led to incarceration did not center around any matter pending before the judge, but around domestic problems of plaintiff former wife who worked at the courthouse); Harris v. Harvey, 605 F.2d 330 (7th Cir.1979), cert. denied, 445 U.S. 938, 100 S.Ct. 1331, 63 L.Ed.2d 772 (1980)(allegedly repeated communications to the press and city officials which were critical of police lieutenant, and the improper instigation of criminal proceedings against the lieutenant by judge as part of a racial campaign to discredit lieutenant were not judicial acts).
Moral hazard occurs when a party insulated from risk behaves differently than it would behave if it were fully exposed to the risk.
Moral hazard arises because an individual or institution does not take the full consequences and responsibilities of its actions, and therefore has a tendency to act less carefully than it otherwise would, leaving another party to hold some responsibility for the consequences of those actions. For example, a person with insurance against automobile theft may be less cautious about locking his or her car, because the negative consequences of vehicle theft are (partially) the responsibility of the insurance company.
Economists explain moral hazard as a special case of information asymmetry , a situation in which one party in a transaction has more information than another. In particular, moral hazard may occur if a party that is insulated from risk has more information about its actions and intentions than the party paying for the negative consequences of the risk. More broadly, moral hazard occurs when the party with more information about its actions or intentions has a tendency or incentive to behave inappropriately from the perspective of the party with less information.
Moral hazard also arises in a principal-agent problem , where one party, called an agent, acts on behalf of another party, called the principal. The agent usually has more information about his or her actions or intentions than the principal does, because the principal usually cannot completely monitor the agent. The agent may have an incentive to act inappropriately (from the viewpoint of the principal) if the interests of the agent and the principal are not aligned.
such statutes are to be construed broadly "to effectuate the regulatory purpose."
United States v. Baytank (Houston), Inc., 934 F.2d 599 (5th Cir. 1991)Superfund site in San Francisco proves toxic for Navy, neighbors
By Monica Jensen SF Public Press/Newsdesk.org — Jan 10 2011 - 2:52pmIn December, activists met with officials from the federal Environmental Protection Agency to tour the shipyard and adjacent public facilities built on or near land contaminated with PCBs and other toxins, such as a school basketball court downwind from an excavation of soil laden with naturally occurring asbestos.
Activists also said that the Navy's unilateral dissolution of the Restoration Advisory Board in December 2009 enabled it to “fast track” major decisions while disregarding community concerns. The biggest decision was the approval of the environmental impact report for the second phase of a redevelopment plan for the neighborhood that will ultimately bring 10,500 homes to the area.
A year after the dissolution of the Restoration Advisory Board for Hunters Point Shipyard, the Navy says it will introduce a new community involvement plan that it says emphasizes diversity.
The announcement follows the White House's reconvened interagency effort on environmental justice, which held its first meeting under the Obama administration in September . The group is creating a four-year road map to develop “stronger community relationships” and targets “overburdened communities.” The next meeting is set for April.
Community involvement
Navy records described the advisory board as “unproductive,” and an EPA spokesman said the Navy's new “community involvement plan,” due to be released sometime in the next two months, will reboot community engagement.
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.In Dalliba v. Riggs, 7 Ida. 779, 82 Pac. 107, it was laid down that while a court of equity can appoint a receiver to perfect and preserve mining property, it “ has no authority to place its receiver in charge of such property and operate the same, carrying on a general mining business, and while it turns out to be at a loss, as is likely to be the result in such cases, charge the same up as a preferred claim and lien against the property, to the prejudice and loss of the holders of prior recorded liens on the same property” (82 Pac. At pp. 108-109). In that case the receiver appeared to have carried on the mining operations without any order of court directing him to do so and with reckless extravagance, and in addition was shown not only not to have kept accurate accounts but also to have made in the account filed “many charges against the estate where no charge whatever should have been made and none in fact existed.” The court accordingly denied the receiver any allowance for his own time or services and any allowance for attorney's fees. - JUSTICE BRANNON
On The Media (NPR): Blow the Whistle
January 8, 2011
Summary : This OTM segment features a follow-up interview with GAP Legal Director Tom Devine on the death of the Whistleblower Protection Enhancement Act (S. 372) in the lame duck session of Congress. The legislation was killed at the last minute (despite passing in the Senate just weeks before) due to one anonymous senator's decision to place a secret hold on the bill.
GAP and On The Media are working together to identify the senator who placed the secret hold. On The Media is asking its listeners, and GAP is asking our supporters to contact their respective senator's offices and ask them if they were the party who wrongfully killed this paramount legislation. Then, however senators may answer, you can report your correspondence to On The Media at blowthewhistle@wnyc.org and their site will post the information.
Please help us identify the culpable senator !Los Angeles Times: Who Killed the Whistleblower Bill?
Today
Summary : This op-ed by GAP Legal Director Tom Devine explains how the whistleblower reform bill was killed last minute in Congress through one senator's “secret hold,” despite overwhelming support for the bill. Devine argues for congressional reform of the “secret hold” process, which he deems “an open invitation to corruption.”St. Louis Beacon: Analysis - Law Treats Whistleblowers and Journalists Differently
January 8, 2011
Summary : This article by a professor of journalism at Southern Illinois University at Carbondale discusses how the recent indictment of Jeffrey Sterling -- the ex-CIA official charged with revealing classified information to the press -- raises questions over the methods used to criminally prosecute whistleblowers and the growing frequency of such prosecutions.
Key Quote : But Jesselyn Radack of the Government Accountability Project sees Sterling as an authentic whistleblower and goes on to criticize the Obama administration for the record number of criminal cases it has brought against government officials leaking to the press.
…
Radack, whose Government Accountability Project protects government whistleblowers and favors government openness, remarked sarcastically in her blog that the prosecution of Sterling under the "famously ambiguous Espionage Act... gives Obama, the 'transparency' president, the dubious distinction of bringing the most 'leak prosecutions' of any administration, ever."Federal Times: Agencies Need a Plan for GOP's Hard Charge
January 9, 2011
This op-ed by Steven L. Katz -- the former counsel for the Senate Governmental Affairs Committee -- advises government agencies to prepare for the increased oversight promised by Rep. Darrell Issa, the new leader of the House Oversight and Government Reform Committee.
Katz suggests that agencies create a plan that includes “addressing relationships and responsiveness to GAO, inspectors general and even whistleblowers.”New Orleans Times-Picayune: Fired Library Accountant Says Inquiries into Finances Were Halted
January 7, 2011
A former internal accountant for the New Orleans Public Library has filed a civil service complaint alleging that she was fired for exposing financial abnormalities, including $5,000 in copy machine revenue that was not properly accounted for.GAP's mission is to promote corporate and government accountability by protecting whistleblowers, advancing occupational free speech, and empowering citizen activists. GAP has been the nation's leading whistleblower protection and advocacy organization since 1977.
The Government Accountability Project
1612 K Street NW, Washington DC 20006
Copyright (C) 2010 Government Accountability Project. All rights reserved.Court Defines “Current Owner” for Purposes of CERCLA Liability
The 9th Circuit Court of Appeals agreed with the District Court and determined that measuring ownership from the time of cleanup best aligns with the purposes for which CERCLA was enacted ¿ for three reasons. First, that the statute of limitations on a CERCLA action starts to run once remedial action has begun suggests that Congress intended the “owner” to be the owner at the time of cleanup. Second, CERCLA encourages responsible parties to remediate without delay and, if a landowner could avoid liability by transferring its property before a lawsuit is filed, then that landowner would have every incentive to delay cleanup until it found a buyer. Third, CERCLA was also enacted to encourage settlement and early voluntary cleanup of contaminated properties, and Hearthside's proposed rule would require that a lawsuit be filed as a prerequisite to recovery in every case.
Red Tape Rising:
Published on October 26, 2010 by James Gattuso , Diane Katz and Stephen KeenAbstract: The burden of regulation on Americans increased at an alarming rate in fiscal year 2010. Based on data from the Government Accountability Office, an unprecedented 43 major new regulations were imposed by Washington. And based on reports from government regulators themselves, the total cost of these rules topped $26.5 billion, far more than any other year for which records are available. These costs will affect Americans in many ways, raising the price of the cars they buy and the food they eat, while destroying an untold number of jobs. With the enactment of new health care laws, financial regulations, and plans for rulemaking in other areas, the regulatory burden on Americans is set to increase even further in the coming year.
The Hidden Tax
The cost of regulation has often been called a hidden tax. Although the total does not appear anywhere in the federal budget, the multitude of rules, restrictions, and mandates imposes a heavy burden on Americans and the U.S. economy. According to a report recently released by the Small Business Administration, total regulatory costs amount to about $1.75 trillion annually, [1] nearly twice as much as all individual income taxes collected last year. [2]
Not all regulations are unwarranted, of course. Most Americans would agree on the need for protections against terrorism, although the extent of such rules is certainly subject to debate. Moreover, regulations are not necessarily inconsistent with free-market principles. Some, such as anti-fraud measures, protect the rights of consumers. But there is always a cost. And, for the same reasons that federal spending is reported, so, too, should regulatory costs.
Record Increases
This regulatory burden has been increasing for some time. During the presidency of George W. Bush, which many mistakenly consider as a period of deregulation, the regulatory burden increased by more than $70 billion, according to agency regulatory impact reports. In FY 2009, which spanned the Bush and Obama Administrations, rulemaking proceeded at a nearly unprecedented rate, with the addition of 23 major rules imposing $13 billion in new costs. [3]
But the available evidence indicates that regulatory costs increased last year at a far greater pace. According to data from the Government Accountability Office, federal agencies promulgated 43 rules during the fiscal year ending September 30, 2010, [4] that impose significant burdens on the private sector. The total costs for these rules were estimated by the regulators themselves at some $28 billion, the highest level since at least 1981, the earliest date for which figures are available. [5] Fifteen of the 43 major rules issued last during the fiscal year involved financial regulation. Another five stem from the Patient Protection and Affordable Care Act adopted by Congress in early 2010. Ten others come from the Environmental Protection Agency (EPA), including the first mandatory reporting of “greenhouse gas” emissions and $10.8 billion in new automotive fuel economy standards (adopted jointly with the National Highway Traffic Safety Administration (NHTSA)). Overall, counting the fuel standards, the EPA is responsible for the lion's share of the reported regulatory costs—some $23.2 billion.
Among the most costly of the FY 2010 crop are:
- Fuel economy and emission standards [6] for passenger cars, light-duty trucks, and medium-duty passenger vehicles imposed jointly by the EPA and NHTSA. Annual cost: $10.8 billion (for model years 2012 to 2016). For automakers to recover these increased outlays, NHTSA estimates the standards will lead to increases in average new vehicle prices ranging from $457 per vehicle in FY 2012 to $985 per vehicle in FY 2016. [7]
- Mandated quotas for renewable fuels. Annual cost: $7.8 billion (for 15 years). Utilizing farmland to grow corn and other crops used in renewable fuels will displace food crops, leading food costs to increase by $10 per person per year—or $40 for a family of four, according to the EPA. [8]
- Efficiency standards for residential water heaters, heating equipment, and pool heaters. Annual cost: $1.3 billion. The appliance upgrades necessary to comply with the new standards will raise the price of a typical gas storage water heater by $120. [9]
- Limits on “effluent” discharges from construction sites imposed by the EPA. Annual cost: $810.8 million. The cost of the requirements will force the closure of 147 construction firms and the loss of 7,257 jobs, according to the EPA. Homebuyers also will bear some of the costs, with an increase in mortgage costs of about $1,953.
Regulatory Reductions Missing in Action
Measures to reduce regulatory burdens, by contrast, were few and far between in FY 2010. Only five significant rulemakings adopted last year reduced burdens. Of these, cost reductions were quantified for only two, for reported savings of $1.5 billion. This leaves a net increase in the regulatory burden of $26.5 billion.
Moreover, one of the five measures—though technically deregulatory in nature—relates to an unparalleled expansion of EPA powers. Due to its determination last year that greenhouse gases are pollutants, the agency is moving to set emissions limits for such gases. To follow the standards in the Clean Air Act would corral millions of currently unregulated “facilities,” including offices and apartment buildings, shopping malls, restaurants, hotels, hospitals, schools, houses of worship, theaters, and sports arenas into the EPA regulatory regime. In hopes of quieting political outrage over so sweeping a dictate, the EPA's “Tailoring Rule” [10] set a minimum threshold level for regulation. Therefore, fewer facilities would be subject to permit requirements, making imposition of the emissions limits more feasible. Rather than reduce overall burdens, this action actually facilitated increased burdens. [11]
Actual Costs Likely Higher
The actual cost of regulations adopted in FY 2010 is almost certainly much higher than $26.5 billion. As a first matter, the cost of non-economically significant rules—rules deemed not likely to have an annual impact of $100 million or more—is not calculated (although such rules are believed to constitute only a small portion of total regulatory costs). Moreover, costs were not quantified for 12 of the economically significant rules adopted in FY 2010.
Many of the rules lacking quantified costs involve financial regulation. The Federal Reserve Board, for instance, did not quantify any costs for its new “Truth in Lending” [12] regulations—which impose fee and disclosure requirements for credit card accounts—although the new rules are generally expected to be costly. Similarly, costs were not calculated for new Federal Reserve Board regulations on prepaid electronic gift cards. [13]
It should also be noted that reported costs are likely minimized by allowing agencies to make the initial calculations, thereby casting their proposals in the best light. This could have a substantial impact: Overall, there is evidence that agencies systematically understate regulatory costs. In its 2005 report to Congress, the OMB's Office of Information and Regulatory Affairs conducted ex ante analyses of regulations to test the accuracy of cost-benefit estimates. The study determined that regulators overestimated benefits 40 percent of the time and underestimated costs 34 percent of the time. [14]
Even a finding that costs exceed benefits does not necessarily stop a new rule from going into effect. For instance, in evaluating new regulations for train-control systems, the Department of Transportation identified costs of $477.4 million, and benefits of a mere $22 million. Nevertheless, due to a statutory mandate, the regulations were adopted.
The EPA is prohibited by law from considering costs in devising regulations under the Clean Air Act and other major environmental statutes. Thus, the agency recently set new, more stringent standards on emissions of nitrogen dioxide without formally considering the economic or technical feasibility of compliance. [15] While the EPA did prepare a cost-benefit analysis—concluding that the costs exceed the benefits—agency officials conceded they had no way of determining the number of localities that would be out of compliance under the new rule.
Lastly, it should be noted that annual compliance costs constitute only part of the economic burden of regulation. New rules also entail start-up costs for new equipment, conversions of industrial processes, and devising data collection and reporting procedures. These “first-year” costs exceed $3.1 billion for the 43 new FY 2010 regulations. For example, new restrictions on “short sales” [16] imposed by the Securities and Exchange Commission will require initial costs of more than $1 billion [17] for modifications to computer systems and surveillance mechanisms, and for information-gathering, management, and recordkeeping systems. Likewise, the EPA estimates one-time implementation costs of nearly $745 million for new limits on emissions from diesel engines used in energy production. [18]
More Rules on the Way
Many, many more regulations are in the pipeline. According to one estimate, financial regulation legislation recently adopted by Congress, known as the Dodd–Frank bill, will require 243 new formal rule-makings by 11 different federal agencies. [19] So wide-ranging are regulators' new powers, in fact, that the Department of Health and Human Services has failed to meet one-third of the deadlines mandated by the new federal health care law, according to a report by the Congressional Research Service. [20]
Meanwhile, the new Consumer Financial Protection Bureau created under the Dodd–Frank measure will wield vaguely defined powers to regulate financial products and services, including mortgages, credit cards, even student loans. And, the Federal Communications Commission is mulling new regulations to limit how Internet service providers manage their networks. Such “net neutrality” rules, if enacted, would undermine investment incentives, thereby robbing the nation of much-needed broadband upgrades. [21]
Taken together, these initiatives embody a stunningly full regulatory agenda—indicating that this year's record for regulatory increases will not stand for long.
Conclusion
The regulatory burden increased at an unprecedented rate during FY 2010, as measured by both the number of new major rules as well as their reported costs. Even more are on the way in 2011.
A number of steps have been proposed to stem this growth, ranging from automatic sunsetting of rules [22] to requiring congressional approval of all new major rules. [23]
Mere procedural reforms will not be enough to stem this regulatory tide. Regulatory costs will rise until policymakers appreciate the burdens that regulations are imposing on Americans and the economy, and exercise the political will necessary to limit—and reduce—those burdens.
— James L. Gattuso is Senior Research Fellow in Regulatory Policy, Diane Katz is Research Fellow in Regulatory Policy, and Stephen A. Keen is a Research Assistant, in the Thomas A. Roe Institute for Economic Policy Studies at The Heritage Foundation.
Appendix
Major Rulemaking Proceedings that Increased Regulatory Burdens, October 2009–September 2010
October 2009
October 30, 2009, Environmental Protection Agency, “Mandatory Reporting of Greenhouse Gases”: $94.9 million annually; $140.7 million start-up.
November 2009
November 17, 2009, Federal Reserve System, “Electronic Fund Transfers”: $10.9 million annually.
December 2009
December 1, 2009, Environmental Protection Agency, “Effluent Limitations Guidelines and Standards for the Construction and Development Point Source Category”: $810.8 million annually.
December 4, 2009, Securities and Exchange Commission, “Amendments to Rules for Nationally Recognized Statistical Rating Organizations”: $34.9 million annually; $16.2 million start-up.
December 4, 2009, Department of Transportation, Pipeline and Hazardous Materials Safety Administration, “Pipeline Safety: Integrity Management Program for Gas Distribution Pipelines”: $101.1 million annually; $130.1 million start-up.
December 23, 2009, Securities and Exchange Commission, “Proxy Disclosure Enhancements”: $66.5 million annually.
January 2010
January 8, 2010, Department of Energy, “Energy Conservation Program: Energy Conservation Standards for Certain Consumer Products (Dishwashers, Dehumidifiers, Microwave Ovens, and Electric and Gas Kitchen Ranges and Ovens) and for Certain Commercial and Industrial Equipment (Commercial Clothes Washers)”: $23.4 million annually.
January 11, 2010, Securities and Exchange Commission, “Custody of Funds or Securities of Clients by Investment Advisers”: $125.1 million annually; $1.2 million start-up.
January 15, 2010, Federal Reserve System and Federal Trade Commission, “Fair Credit Reporting Risk-Based Pricing Regulations”: $252.1 million annually.
January 15, 2010, Department of Transportation, Federal Railroad Administration, “Positive Train Control Systems”: $477.4 million annually.
January 28, 2010, Department of the Treasury, Office of the Comptroller of the Currency; Federal Reserve System; Federal Deposit Insurance Corporation; Department of the Treasury, Office of Thrift Supervision, “Risk-Based Capital Guidelines; Capital Adequacy Guidelines; Capital Maintenance: Regulatory Capital; Impact of Modifications to Generally Accepted Accounting Principles; Consolidation of Asset-Backed Commercial Paper Programs; and Other Related Issues”: cost not quantified.
February 2010
February 9, 2010, Environmental Protection Agency, “Primary National Ambient Air Quality Standards for Nitrogen Dioxide”: cost not quantified.
February 17, 2010, Department of Agriculture, Agricultural Marketing Service, “National Organic Program; Access to Pasture (Livestock)”: cost not quantified.
February 22, 2010, Federal Reserve System, “Truth in Lending”: cost not quantified.
March 2010
March 3, 2010, Environmental Protection Agency, “National Emission Standards for Hazardous Air Pollutants for Reciprocating Internal Combustion Engines”: $373.4 million annually; $744.7 million start-up.
March 4, 2010, Securities and Exchange Commission, “Money Market Fund Reform”: $60.2 million annually; $86.9 million start-up.
March 9, 2010, Department of Energy, “Energy Conservation Program: Energy Conservation Standards for Small Electric Motors”: $263.9 million annually.
March 10, 2010, Securities and Exchange Commission, “Amendments to Regulation SHO”: $1.2 billion annually; $1.1 billion start-up.
March 19, 2010, Department of Health and Human Services, Food and Drug Administration, “Regulations Restricting the Sale and Distribution of Cigarettes and Smokeless Tobacco to Protect Children and Adolescents”: cost not quantified.
March 26, 2010, Environmental Protection Agency, “Regulation of Fuels and Fuel Additives: Changes to Renewable Fuel Standard Program”: $7.8 billion annually.
April 2010
April 1, 2010, Federal Reserve System, “Electronic Fund Transfers”: cost not quantified.
April 5, 2010, Department of Transportation, Federal Motor Carrier Safety Administration, “Electronic On-Board Recorders for Hours-of-Service Compliance”: $139 million annually.
April 14, 2010, Department of Health and Human Services, Food and Drug Administration, “Use of Ozone-Depleting Substances; Removal of Essential-Use Designation (Flunisolide, etc.)”: $181.9 million annually.
April 16, 2010, Department of Energy: Energy Conservation Program, “Energy Conservation Standards for Residential Water Heaters, Direct Heating Equipment, and Pool Heaters”: $1.3 billion annually.
May 2010
May 6, 2010, Environmental Protection Agency, “Lead; Amendment to the Opt-Out and Recordkeeping Provisions in the Renovation, Repair, and Painting Program”: $419.5 million annually; $552 million start-up.
May 7, 2010, Environmental Protection Agency and Department of Transportation, National Highway Traffic Safety Administration, “Light-Duty Vehicle Greenhouse Gas Emission Standards and Corporate Average Fuel Economy Standards; Final Rule”: $10.8 billion annually (2012–2016).
May 13, 2010, Department of the Treasury, Internal Revenue Service; Department of Labor, Employee Benefits Security Administration; Department of Health and Human Services, Office of the Secretary, “Interim Final Rules for Group Health Plans and Health Insurance Issuers Relating to Dependent Coverage of Children to Age 26 Under the Patient Protection and Affordable Care Act”: $11 million annually.
May 28, 2010, Department of Transportation, Federal Aviation Administration, “Automatic Dependent Surveillance—Broadcast (ADS-B) Out Performance Requirements to Support Air Traffic Control (ATC) Service”: $100 million annually.
June 2010
June 4, 2010, Federal Reserve System, “Electronic Fund Transfers”: cost not quantified.
June 17, 2010, Department of the Treasury, Internal Revenue Service; Department of Labor, Employee Benefits Security Administration; Department of Health and Human Services, “Interim Final Rules for Group Health Plans and Health Insurance Coverage Relating to Status as a Grandfathered Health Plan Under the Patient Protection and Affordable Care Act”: $25.2 million annually; $30.2 million start-up.
June 22, 2010, Environmental Protection Agency, “Primary National Ambient Air Quality Standard for Sulfur Dioxide”: $1.6 billion annually.
June 28, 2010, Department of the Treasury, Internal Revenue Service; Department of Labor, Employee Benefits Security Administration; and Department of Health and Human Services, “Patient Protection and Affordable Care Act: Preexisting Condition Exclusions, Lifetime and Annual Limits, Rescissions, and Patient Protections”: $4.8 million annually.
June 29, 2010, Federal Reserve System, “Truth in Lending”: cost not quantified.
July 2010
July 14, 2010, Securities and Exchange Commission, “Political Contributions by Certain Investment Advisers”: $85.1 million annually; $22.6 million start-up.
July 16, 2010, Department of Labor, Employee Benefits Security Administration, “Reasonable Contract or Arrangement Under Section 408(b)(2)—Fee Disclosure ”: $57.7 million annually.
July 19, 2010, Department of the Treasury, Internal Revenue Service; Department of Labor, Employee Benefits Security Administration; and Department of Health and Human Services, “Interim Final Rules for Group Health Plans and Health Insurance Issuers Relating to Coverage of Preventive Services Under the Patient Protection and Affordable Care Act”: cost not quantified.
July 23, 2010, Department of the Treasury, Internal Revenue Service; Department of Labor, Employee Benefits Security Administration; and Department of Health and Human Services, “Interim Final Rules for Group Health Plans and Health Insurance Issuers Relating to Internal Claims and Appeals and External Review Processes Under the Patient Protection and Affordable Care Act”: $75.1 million annually.
July 28, 2010, Department of the Treasury, Office of the Comptroller of the Currency, “Registration of Mortgage Loan Originators”: $123.9 million annually; $283.3 million start-up.
August 2010
August 9, 2010, Department of Labor, Occupational Safety and Health Administration, “Cranes and Derricks in Construction”: $151.6 million annually.
August 12, 2010, Securities and Exchange Commission: “Amendments to Form ADV”: $20.5 million annually; $56.4 million start-up.
August 20, 2010, Environmental Protection Agency, “National Emission Standards for Hazardous Air Pollutants for Reciprocating Internal Combustion Engines”: $253 million annually.
September 2010
September 9, 2010, Environmental Protection Agency, “National Emission Standards for Hazardous Air Pollutants from the Portland Cement Manufacturing Industry and Standards of Performance for Portland Cement Plants”: $1 billion in 2013.
September 16, 2010, Securities and Exchange Commission, “Facilitating Shareholder Director Nominations”: $8 million annually.
Major Rulemaking Proceedings that Decreased Regulatory Burdens, October 2009–September 2010
October 19, 2009, Securities and Exchange Commission, “Internal Control Over Financial Reporting in Exchange Act Periodic Reports of Non-Accelerated Filers”: savings not quantified.
November 2, 2009, Department of Health and Human Services, Centers for Disease Control and Prevention, “Medical Examination of Aliens—Removal of Human Immunodeficiency Virus (HIV) Infection from Definition of Communicable Disease of Public Health Significance”: savings not quantified.
November 13, 2009, Environmental Protection Agency, “Oil Pollution Prevention; Spill Prevention, Control, and Countermeasure (SPCC) Rule—Amendments”: $98.6 million.
March 31, 2010, Department of Justice, Drug Enforcement Administration, “Electronic Prescriptions for Controlled Substances”: $1.4 billion.
June 3, 2010, Environmental Protection Agency, “Prevention of Significant Deterioration and Title V Greenhouse Gas Tailoring Rule”: savings not quantified.
where landowners fence or post "no trespassing" signs on their property or otherwise indicate
unmistakably that entry is not allowed, their "expectation that their privacy rights will be
respected and that they will be free from unwanted intrusions is reasonable".Report Faults EPA Oversight
The report recommends that agency officials ensure that accurate standards are used to assess conditions at the site and that laboratories use the correct analytic methods.
In related news, the start of the 112th Congress also featured the official closure of the Select Committee for Energy Independence and Global Warming, the only Congressional committee dedicated to tackling climate change.
Administrative - EPA Order 3120.1b Scientific misconduct, fabrication or knowing falsification of
data, research procedures, or data analysis is an offense which can result in immediate removal/ Suspension
and Debarment / Civil Sanctions / Fines / Local AUSA Must Decide If Fraud Meets Criminal
Prosecution Threshold / Culpability / Harm
Laboratory Fraud, Title 18 United States Criminal Code; Is It Criminal or Civil?
Fraud - 18 USC 1341 - 1343 , PROCEDURAL FRAUD, MEASUREMENT FRAUD
False Statements - 18 USC 1001
Conspiracy - 18 USC 371
Concealment of a felony - 18 USC 4 (misprision)
False Claims - 18 USC 287
Obstruction of Justice - 18 USC 1505
Penalties up to 20 years imprisonment for destroying, concealing or falsifying records with intent to
obstruct or impede a legal investigation
"Government is not reason; it is not eloquence; it is force. Like fire; it is a dangerous servant and a
fearful master." - George Washington
Freedom at Risk: Reflections on Politics, Liberty, and the State
A book event
James L. Buckley may be the only American alive who has held high office in each branch of the federal government – as U.S. Senator from New York, an Under Secretary of State under President Ronald Reagan, and a Judge on the U.S. Court of Appeals for the D.C. Circuit. His comprehensive understanding of how Washington works equips him to address authoritatively the intrusive growth of the federal government and illuminate such diverse issues as judicial activism, environmental regulation, the place of religion in public life, energy policies, campaign financing, and women's rights. On the international front, he explains the dangers of abandoning foreign commitments and the difficulties posed by political corruption in the United Nations. Many of these essays and speeches are from the Seventies, but problems identified then have grown exponentially in the decades since, and the author's insights are even more relevant today than they were when he first entered the Senate.
In Freedom at Risk , Buckley's collected essays, musings, and speeches tell why government is incapable of managing an economy, and why the transformation of the federal government into a centrally administered welfare state is undermining the most critical safeguard the Founders had written into the Constitution, namely the principle of federalism. Here, in a perceptive analysis spanning a lifetime in Washington, lies an outline of the steps that must be taken to save constitutional government, if that is still possible.
An Entrepreneurship and Development Symposium
Cosponsored by George Mason University and The Heritage Foundation
~ AGENDA ~
8:30 a.m.
Registration and Continental Breakfast9:00 a.m.
Welcome and Opening RemarksAmbassador Terry Miller
Director, Center for International Trade and Economics, The Heritage Foundation9:20 a.m.
Panel 1 – Entrepreneurship: The KILLER APP for Sustainable DevelopmentErkko Autio, Ph.D.
Director, Doctoral Program, Imperial College London Business SchoolSteven Pearlstein
Business Columnist, The Washington PostJohn Haltiwanger, Ph.D.
William Beach
Professor of Economics, University of Maryland
Director, Center for Data Analysis, The Heritage Foundation
10:45 a.m.
Panel 2 – Measuring the KILLER APPLeora Klapper
Senior Financial Economist, The World BankSteve Crabtree
Contributing Writer, Gallup CorporationLaszlo Szerb
Associate Professor of Business and Economics, University of Pécs, HungaryAnthony Kim
Policy Analyst, Center for International Trade and Economics, The Heritage Foundation
12:00 p.m.
Lunch – The Global Entrepreneurial and Development IndexZoltan J. Acs, Ph.D.
Director, Center for Entrepreneurship and Economics, George Mason University
on “GEDI: A Tool for the 21 st Century”
1:15 p.m.
Keynote AddressRoger Stough
Vice President for Research and Economic Development, George Mason University
1:45 p.m.
Panel 3 – Public Policy: Channeling the KILLER APP for Global DevelopmentZoltan J. Acs, Ph.D.
Director, Center for Entrepreneurship and Economics, George Mason UniversitySamee Desai
Assistant Professor, Entrepreneurship and Innovation, Indiana UniversityDavid Audretsch
Director, Institute for Development Strategies, Indiana UniversityJim Blasingame
Host, The Small Business Advocate (Moderator)
3:00 p.m.
Conference Wrap-UpJack Goldstone
Director, Center for Global Policy, George Mason University
on “Getting to 2050: Population, Cities and Entrepreneurship”
No Retreat for Veteran EPA Whistleblower
United States v. Tarkowski, [2000] 50 Envt Rep. Cas. (BNA) 1121, 2000 WL 12442 (N.D. Ill. 2000).
In a subsequent order, the court nevertheless denied the government=s motion for
access, finding that there was no reasonable basis to believe that releases or threatened
releases of hazardous substances had occurred or might occur, except for the possible
presence of pesticides and metals in some soil areas. But, even as for the latter, U.S. EPA
had failed to follow its own established methods for determining whether a response action
was necessary. The court also denied a second motion for access filed by the government,
to conduct investigation and sampling (encompassing surface and well water as well as soil,
sediment and containers), including subsurface areas, finding that the second motion went
Avastly beyond@ the basis of the court=s holding regarding the first motion, and far beyond
as well the investigation of releases for which the government had any reasonable basis to
believe had occurred or might be threatened. Furthermore, the government had failed to
establish that defendant had refused access to the property for the purposes sought in the
second motion. 2000 WL 696740 (N.D. Ill. May 30, 2000).
On appeal, the Seventh Circuit affirmed the district court=s order, sharply rebuking the
government for taking Athe extreme position that, provided it has probable cause to believe
that there is even a thimbleful of a hazardous substance spilled . . . or even a drop, it has an
absolute right to an access order regardless of the action it proposes to take, [even]
rendering the property wholly useless to the owner@. It found that the government=s
position did not serve a public purpose, strike a reasonable balance between property and
community rights, rationally advance the agency=s mission, nor comport with
constitutional limitations upon federal regulation of purely local activities and upon
searches and seizures, noting that A[a]ccess orders are orders to seize as well as search
because of the control the agency exerts over the property. It acknowledged that EPA
would have been entitled to an order to enter the property for the limited purpose of
conducting tests, and later to a second access order to execute a remediation order (which
would not be directly reviewable) should the testing demonstrate a need therefor.
However, the blanket authority in Section 113(h) of CERCLA precluding direct review of
EPA=s removal and remedial actions cannot not act to deprive the courts of the power to
review whether access orders sought to effectuate such actions are arbitrary or capricious,
regardless of the magnitude of the impact upon the property owner or the minimal threat
of contamination posed to the environment. 248 F.3d 596 (7th Cir. 2001). In subsequent
orders, the district court found that the government=s position in the matter had not been
justified, 53 Env=t Rep. Cas. (BNA) 1958 (N.D. Ill. Nov. 26, 2001), and awarded a total of
approximately $95,000 to defendant in attorneys fees and expenses under the Equal Access
to Justice Act, 2002 WL 460831 (N.D. Ill. Mar. 26, 2002).Laws and Regulations
�� Federal Land Policy and Management Act of 1976 (FLPMA) (43 U.S.C. 1701, et seq.).
Section 302(b) authorizes the Secretary of the Interior, through the BLM, to take actions that
prevent unnecessary or undue degradation of public lands.
�� National Oil and Hazardous Substances Pollution Contingency Plan (NCP) (40 CFR 300).
The NCP “provide[s] the organizational structure and procedures for preparing for and
responding to discharges of oil and releases of hazardous substances, pollutants, and
contaminants” (40 CFR 300.1).
�� Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) (42
U.S.C. 9601). CERCLA was enacted to address risks to public health and the environment
resulting from actual or potential releases of hazardous substances and to recover costs spent for
cleanups from responsible parties. Executive Orders (EO) 12580 (Superfund Implementation)
and 13016 (Amendment to E.O. 12580) delegate CERCLA authority and responsibility to the
DOI to respond to actual or potential releases of hazardous substances on or affecting public
lands administered, by the BLM and initiate cost recovery from responsible parties. These
actions should comply with the requirements of the NCP.
�� Watershed Restoration and Enhancement Agreements (“Wyden Amendment”) (Public
Law (PL)-104-208, Sec. 124, PL 10-5-277, Sec. 136 of the 1999 Interior Appropriations Act
of 1998). The Wyden Amendment authorizes the BLM to conduct watershed-based
environmental reclamation, through partnerships with States, at abandoned mines, impacted by
contamination originating from non-Federal lands, to improve the viability of and otherwise
benefit the fish, wildlife, and other biotic resources on public land in the watershed.
In addition to the preceding primary authorities, the BLM also relies on the following secondary
authorities applicable to the evaluation and cleanup of abandoned mine lands. These authorities
present standards and requirements that must be observed in the course of AML cleanup and
reclamation.
�� National Environmental Policy Act (NEPA) (42 U.S.C. 4321, et seq.). In the absence of the
application of CERCLA processes, AML projects require compliance with NEPA. NEPA
establishes a process to review the environmental impacts of a proposed major Federal action that
could significantly affect the quality of the environment, as well as the environmental impacts of
possible alternatives to the proposed action. Proposed Federal activities that potentially could
result in environmental impacts at abandoned mines include non-CERCLA environmental
reclamation and physical safety risk mitigation efforts.
�� Surface Mining Control and Reclamation Act (SMCRA) (30 U.S.C. 1201, et seq.). After
meeting coal clean-up responsibilities, SMCRA allows States and Tribes with approved SMCRA
AML programs to fund clean-up of non-coal sites. For abandoned mine purposes, the law also
allows reclamation resources to be used for clean-up of non-coal mines that, if not addressed,
would substantially degrade the quality of the environment, prevent or damage the beneficial use
of land or water resources, or endanger the health or safety of the public.This facilitates the BLM’s partnership opportunities with States, such as cooperative agreements and fund leveraging.
�� Surface Resources Act of 1955 (PL-167) (30 U.S.C. 611-614). This statute authorizes the
BLM to manage the vegetative and surface resources on mining claims located after 1955. The
Act also provides for restriction on the use of unpatented mining claims.
�� Resource Conservation and Recovery Act of 1976 (RCRA) (42 U.S.C. 6921-6924). RCRA is
the primary Federal authority for managing hazardous wastes from cradle to grave. Subtitle C of
RCRA regulates the generation, collection, transportation, treatment, storage, and disposal of
hazardous wastes. In 1980, Congress amended RCRA to include the Bevill Amendment
(Section 3001(b) (3) (A) (ii) and 40 CFR 261.4(b)(7)), which effectively exempted wastes from
the extraction and beneficiation of ores and minerals from RCRA subtitle C, regardless of their
chemical composition. A limited set of mining wastes may be eligible under RCRA—if the
abandoned mine (or associated operations) held a subtitle C treatment, storage, or disposal
facility permit or if the abandoned mine generated non-Bevill excluded waste. From a practical
point of view, the Bevill Amendment exempts most tailings and waste rock from RCRA
standards, thus many on-site repository solutions can be utilized for stabilization of mine wastes.
(See Section 9.4.7.2 for more information on repositories).
�� Clean Water Act of 1972 (CWA) (33 U.S.C. 1251 et seq.). The BLM can use the provisions of
the CWA to promote cooperative clean-up efforts at abandoned mine sites impacting water
quality.
�� Endangered Species Act of 1973 (ESA) (16 U.S.C. 1531). Where abandoned mines may
impact endangered or threatened species (e.g., bats or fish), the BLM uses ESA authority to
ensure environmental risks are addressed through ecologically protective reclamation efforts.
�� National Historic Preservation Act of 1966 (NHPA), as amended (16 U.S.C. 470). Where
abandoned mines may impact historic or cultural resources, the BLM uses NHPA authority to
ensure protection of historic and archaeological properties. (See Section 9.3.3.1 for application).
�� Mining Law of 1872, as amended (30 U.S.C. 21, et seq.). This statute allows the location, use,
and patenting of mining claims on public lands.ATSDR
Copper
CAS ID #: 7440-50-8
Affected Organ Systems: Gastrointestinal (Digestive), Hematological (Blood Forming), Hepatic (Liver)
Cancer Effects: None
Chemical Classification: Inorganic substances
Summary: Copper is a metal that occurs naturally throughout the environment, in rocks, soil, water, and air. Copper is an essential element in plants and animals (including humans), which means it is necessary for us to live. Therefore, plants and animals must absorb some copper from eating, drinking, and breathing. Copper is used to make many different kinds of products like wire, plumbing pipes, and sheet metal. U.S. pennies made before 1982 are made of copper, while those made after 1982 are only coated with copper. Copper is also combined with other metals to make brass and bronze pipes and faucets. Copper compounds are commonly used in agriculture to treat plant diseases like mildew, for water treatment and, as preservatives for wood, leather, and fabrics.
Community Members
· ToxFAQs™
Fact sheet that answers the most frequently asked questions about a contaminant and its health effects.
Addresses the most frequently asked questions about exposure to hazardous substances and the effects of exposure on human health.
Toxicological and Health Professionals
Succinctly characterizes the toxicologic and adverse health effects information for a hazardous substance.
· CERCLA Priority List of Hazardous Substances
Prioritization of substances based on a combination of their frequency, toxicity, and potential for human exposure at National Priorities List (NPL) sites.
The MRL is an estimate of the daily human exposure to a hazardous substance that is likely to be without appreciable risk of adverse, non-cancer health effects over a specified duration of exposure. The information in this MRL serves as a screening tool to help public health professionals decide where to look more closely to evaluate possible risk of adverse health effects from human exposure.
Succinctly characterizes the toxicologic and adverse health effects information for mixtures of hazardous substances.
Zinc
CAS ID #: 7440-66-6
Affected Organ Systems: Gastrointestinal (Digestive), Hematological (Blood Forming), Respiratory (From the Nose to the Lungs)
Cancer Effects: None
Chemical Classification: Inorganic substances
Summary: Zinc is one of the most common elements in the earth's crust. It is found in air, soil, and water, and is present in all foods. Pure zinc is a bluish-white shiny metal. Zinc has many commercial uses as coatings to prevent rust, in dry cell batteries, and mixed with other metals to make alloys like brass, and bronze. A zinc and copper alloy is used to make pennies in the United States . Zinc combines with other elements to form zinc compounds. Common zinc compounds found at hazardous waste sites include zinc chloride, zinc oxide, zinc sulfate, and zinc sulfide. Zinc compounds are widely used in industry to make paint, rubber, dyes, wood preservatives, and ointments.
Community Members
· ToxFAQs™
Fact sheet that answers the most frequently asked questions about a contaminant and its health effects.
Addresses the most frequently asked questions about exposure to hazardous substances and the effects of exposure on human health.
Toxicological and Health Professionals
Succinctly characterizes the toxicologic and adverse health effects information for a hazardous substance.
· CERCLA Priority List of Hazardous Substances
Prioritization of substances based on a combination of their frequency, toxicity, and potential for human exposure at National Priorities List (NPL) sites.
The MRL is an estimate of the daily human exposure to a hazardous substance that is likely to be without appreciable risk of adverse, non-cancer health effects over a specified duration of exposure. The information in this MRL serves as a screening tool to help public health professionals decide where to look more closely to evaluate possible risk of adverse health effects from human exposure.
Succinctly characterizes the toxicologic and adverse health effects information for mixtures of hazardous substances.
Community Members
This section provides information about how hazardous substances can affect your health.
Resources for Community Members
- ToxFAQs™
- Fact sheet that answers the most frequently asked questions about a contaminant and its health effects.
- Public Health Statement
- Addresses the most frequently asked questions about exposure to hazardous substances and the effects of exposure on human health.
- Community Environmental Health Presentations
- CEHPs include information about specific types of exposures to hazardous substances, exposure routes and pathways, health effects, and how to prevent and minimize exposures.
How do I contact ATSDR?
Further information can be obtained by contacting the ATSDR Information Center at:
Agency for Toxic Substances and Disease Registry
Division of Toxicology and Environmental Medicine
1600 Clifton Road NE, Mailstop F-32
Atlanta, GA 30333
Phone: 1-800-CDC-INFO 888-232-6348 (TTY)
Email: cdcinfo@cdc.gov
www.klamathbasincrisis.org - The Klamath Basin Water Crisis
Tulelake voters slam KBRA nearly 8-2 , here . Abraham Lincoln said, "You can fool some of the people all of the time, and all of the people some of the time, but you can not fool all of the people all of the time."
U.S Congressman Wally Herger: Department of Interior's “Christmas Present” to the American Public: Lockup More Federal Land, posted to KBC 1/7/11. "...as the Obama Administration continues to claim that it has no plans to designate national monuments in response to a leaked memo describing potential monument sites (including two within our Northern California Congressional District), this latest action further undermines their credibility. Instead, these statements simply reinforce the Administration's “lock it up” agenda with respect to multiple-use of federal lands."
Dodd-Frank Act Creates Important Rights for Whistleblowers
The Dodd-Frank Act gives whistleblowers with independent knowledge of a financial fraud by any company required to report to the SEC the potential of a big pay-out - up to 30% of any amount recovered over $1 million.January 07, 2011 /24-7PressRelease/ -- Each year, corporate fraud costs the US government millions of dollars. In many cases, the fraud would never be discovered if it were not for the courageous acts of employees and others who come forward and report the fraud to the Securities and Exchange Commission (SEC).
In recognition of the importance of whistleblowers, a recent law passed by Congress includes key provisions to encourage more whistleblowers to report fraud by offering financial incentives to do so. Under the Dodd-Frank Wall Street Reform and Consumer Protection Act, those with independent knowledge of a financial fraud committed by a business required to report to the SEC or the US Commodity Futures Trading Commission (CFTC) may be entitled to a percentage, or "bounty," of the money recovered. The Act sets the bounty at 10 to 30 percent of any amount over $1 million recovered in a judicial or administrative action against the wrongdoer.
To be eligible for the bounty, the whistleblower must:
- Report the information to the SEC or CFTC
- The information must be derived from the independent knowledge or analysis of the whistleblower
- The government cannot have known about the fraud from any other source
The final amount awarded to a whistleblower under the Dodd-Frank Act is discretionary; the SEC or CFTC is given the authority to give a bounty according to the "significance" of the information provided and the level of assistance given by the whistleblower.
The Act also includes a provision protecting the whistleblower's identity. Under the law, the whistleblower can maintain anonymity by filing a claim through his or her lawyer. The whistleblower is not required to reveal his or her identity until it is known whether the information he or she provided will lead to a recovery and, subsequently, a bounty.
Act Expands on False Claims Act Qui Tam Actions
The Dodd-Frank Act was modeled after another important law for whistleblowers - the False Claims Act. Under the False Claims Act, whistleblowers who have independent knowledge of a financial fraud perpetuated against the government can bring a special type of lawsuit known as a "qui tam" action. In a qui tam action, the whistleblower is known as a "relator" and brings the lawsuit on behalf of the federal government. Whistleblowers who bring successful qui tam actions are entitled to a percentage of the amount recovered, which is typically 15 to 25 percent.
An important difference between the Dodd-Frank Act and False Claims Act is the scope of the law. The False Claims Act only applies to financial fraud committed against the government. The Dodd-Frank Act, on the other hand, is much broader and applies to any type of financial fraud committed by a company that falls within the jurisdiction of the SEC or CFTC.
The Dodd-Frank Act also broadly defines who is eligible to bring a whistleblower claim. As the law is written, nearly anyone who has ever had dealings with the company may qualify, including current and former employees, customers, suppliers and even board members. The SEC, however, has proposed a rule to limit the right of certain actors to bring claims, including those who received the information as a result of their duties to respond to the wrongdoing.
Wall Street, Other Businesses Worried
Not surprisingly, companies are not very excited about the Dodd-Frank Act. The biggest complaint against the law is that it undermines all of the money, time and resources companies expended creating internal compliance and complaint procedures for reporting fraud and abuse, as required under Sarbanes-Oxley. Companies fear that the potentially large financial incentives provided under the Act will encourage employees to file their complaints directly with their own attorneys or the SEC and not internally.
And, at least initially, it appears they are right: according to a Wall Street Journal report, the number of whistleblower suits filed after the passage of Dodd-Frank increased ten-fold. There also have been huge bounties paid out recently to whistleblowers who filed qui tam actions under the False Claims Act. For example, Cheryl Eckard, the whistleblower in the GlaxoSmithKline fraud case, is set to receive a $96 million payout for her qui tam action against the company. In the 2009 settlement between the government and Pfizer, the whistleblower received $80 million of the proceeds. In therecently settled Allergan case for the drug maker's aggressive off-label marketing campaign for Botox, the whistleblowers received $37 million.
Big business was hoping that the SEC would issue a rule requiring whistleblowers to first file an internal complaint before filing a claim with the SEC. However, the most the SEC was willing to do was propose a rule "encouraging" whistleblowers to first use the company's internal complaint procedure.
The SEC also proposed a rule that if an employee reports information to an internal compliance department first, then the information still will be considered "original" so long as the employee files a claim with the SEC within 90 days. In the past, if a whistleblower gave the information to an internal compliance department first, then the information was no longer considered original and the whistleblower would be ineligible for any cash rewards under the False Claims Act.
Filing a Whistleblower Action
The SEC is still in the rule-making process for implementing the provisions of the Dodd-Frank Act. The last day for public comments on the proposed rule was December 17 and the agency has stated that it expects the final rules to be in effect by the beginning of 2011.
Until these rules are finalized, it is not yet clear what process whistleblowers will have to follow in order to file a claim under the Act. In the meantime, those with independent knowledge of a fraud committed against the government have the option for filing a qui tam action.
Qui tam actions are filed in federal district court. In addition to filing the claim, claimants also are required to include a statement disclosing all of the information the claimant has of the fraud. Once the claim is filed, it is placed under seal for 60 days while the Department of Justice investigates the claim to determine if the government will join the action. The DOJ also may attempt to settle the claim, or in the alternative, also may seek to have it dismissed. The federal government does not have to join the claim for the qui tam action to proceed; however, having the government join the claim can make it stronger.
In general, to be eligible to file a qui tam claim, the information of the fraud cannot have been obtained from a public source or otherwise known to the government. If the information is from a public source, then the claimant still may be able to bring the qui tam action so long as he or she is an "original source" of the information. This means that the claimant has "direct and independent" knowledge of the information and the claimant provided the information to the government before filing the qui tam action.
Some of the most common types of fraud that may form the basis of a whistleblower claim include:
- Mischarging for goods or services not produced or delivered
- Off-label marketing of pharmaceuticals
- False negotiation
- Defective pricing
- Product and service substitution
- False certification of entitlement to government benefits
Current and former employees are the most common people to bring whistleblower claims, but they also may be brought by subcontractors, state and local governments, public interest groups and even corporations.
Conclusion
Those who are considering filing a whistleblower action under the False Claims Act or Dodd-Frank Act should contact an experienced attorney first. A lawyer knowledgeable in bringing these types of claims can help guide the individual through the claims process and explain their rights and obligations as a whistleblower.
For more information on qui tam actions, contact an experienced whistleblower attorney today.
Article provided by Watkins, Lourie, Roll & Chance, PC
Visit us at www.wlrlawfirm.com
A year after the dissolution of the Restoration Advisory Board for Hunters Point Shipyard, the Navy says it will introduce a new community involvement plan that it says emphasizes diversity.
The announcement follows the White House's reconvened interagency effort on environmental justice, which held its first meeting under the Obama administration in September . The group is creating a four-year road map to develop “stronger community relationships” and targets “overburdened communities.” The next meeting is set for April.
DOE ends Fed preemption of water rules
Jan 5, 2011 10:39 AM, BY ROBERT P. MADER Of CONTRACTOR's staff
Historic Reading of Constitution on House Floor
In one of the first major actions in the new 112th Congress, the House passed a rule this week reaffirming the commitment to limit the Chamber's actions to only those explicitly authorized by the U.S. Constitution. This rule requires that every introduced bill cite a specific provision in the Constitution that authorizes Congress to take the proposed action. In addition, House Republicans reasserted the essential role of the Constitution by reading it in its entirety on the House floor for the first time in history. Too often, Congress spends its time legislating on matters that it has no authority over and in certain cases, as with ObamaCare's individual health care mandate, passing laws that are simply unconstitutional. I believe we could avoid a great deal of unnecessary bureaucracy and intrusive regulation simply by returning to the constitutional concept of limited federal powers and upholding the 10th amendment, which declares, “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.” Millions of Americans are clearly fed up with Congress exceeding its constitutional authority. I believe a renewed focus on the Constitution is long overdue and will help the House better represent the will of the people. - Congressman Wally Herger
Rep. Mike Simpson (R-Idaho) is chairman of the Interior, Environment and Related Agencies subcommittee of the full Appropriations Committee. He was the ranking GOP member of the panel in the last Congress.
Simpson's office, in a statement, said he will be “tasked with reducing spending levels that have grown out of control in recent years under Democrat control,” and that Simpson has his “eyes set on EPA” in particular.
“The EPA is the scariest agency in the federal government, an agency run amok,” Simpson said in a statement Friday.New Guidance on CWA Jurisdiction Will Be Out for Public Review
“In the absence of updated regulations, courts will have
to make ad hoc determinations that run the risk of
transforming scientific questions into matters of law.
That is not the system Congress intended.”—Justice Breyer dissenting in Carabell/Rapanos
see PACIFIC LEGAL FOUNDATION
PLF has made its mark as the nation's leading freedom fighter by winning important legal precedents in state and federal courts. Because it chooses cases where constitutional rights are at risk, PLF has made repeat appearances before the United States Supreme Court—and won several major cases—a record of success unmatched by any other public interest legal organization.
Current Supreme Court Cases
Property Rights
- The Fifth Amendment Applies to Beachfront Land, Too
Walton County v. Save Our Beaches, Inc.
Environmental Regulations
- Costs and benefits must be weighed in environmental regulation
Entergy Corp. v. EPA
- Promoting Regulation That Is Pro-jobs and Pro-environment
Southeast Alaska Conservation Council v. Corps of Engineers
Individual Rights
- Upholding the right of public employees not to pay for lawsuits that don't concern them
Locke v. Karass
Oregon justices defy United States Supreme Court to expand tort law
Philip Morris v. Williams
Discrimination and Preference
- Racial gerrymandering is unconstitutional
Bartlett v. Strickland
- PLF defends Michigan Civil Rights Initiative
Coalition to Defend Affirmative Action v. Granholm; Cantrell v. Granholm
- Race-based exclusions on the use of public land are impermissible
State of Hawaii v. Office of Hawaiian Affairs
Landmark Supreme Court Victories
Nollan v. California Coastal Commission (1987) One of the most important property rights decisions in the Supreme Court's history, Nollan outlawed an egregious form of “shakedown” by land-use regulators; specifically, it said government may not condition the granting of a building permit on the landowner making some payment or surrender of property that has no connection to the impact of the proposed building project.
Keller v. State Bar of California (1990) A First Amendment case holding that a trade or professional organization to which professionals are legally bound to belong may not use their mandatory dues to fund ideologically based lobbying.
Suitum v. Tahoe Regional Planning Agency (1997) This ruling stopped regulators from demanding that an elderly, wheelchair-bound widow sell her minuscule transferable development rights in a nonexistent market before being able to seek judicial relief for denial of her right to build a home.
Palazzolo v. Rhode Island (2001) This ruling held that government is not relieved from its Fifth Amendment obligation to provide compensation for excessive regulations on private property merely because the property has changed hands since the regulations first took effect. PLF defended landowner Anthony Palazzolo who challenged the Rhode Island Coastal Resources Management Council.
Rapanos v. United States (2006) This decision narrowed the scope of federal Clean Water Act jurisdiction, so that landowners who are not close to “navigable waters” may not be subjected to federal micro managing of their property.
Parents Involved in Community Schools v. Seattle School District and Meredith v. Jefferson County Board of Education (2007) Held that school districts that voluntarily adopt student assignment plans that rely on race to determine which schools certain children may attend, violate the Equal Protection Clause of the United States Constitution. As amicus, PLF attorneys participated as second chair at oral argument assisting Meredith's attorney.Over the holidays a notice was posted on the Office of Management and Budget's reginfo.com website that Clean Water Protection Guidance had been received. This means that EPA has forwarded guidance to OMB for interagency review. EPA is apparently proposing guidance to assist field staff in identifying waters that are jurisdictional under the Clean Water Act.
http://www.reginfo.gov/public/do/eAgendaMain?operation=OPERATION_GET_AGENCY_RULE_LIST¤tPub=true&agency
Cd=2000&Image58.x=36&Image58.y=23&Image58=SubmitTo recap briefly: In the spring of 2006 the Supreme Court Carabell/Rapanos decision created a great deal of uncertainty over which waters were subject to the Clean Water Act. It was a 4-1-4 decision. This split was unique in the history of Supreme Court decisions because the ‘1' (Justice Kennedy) sided with the plurality (Justice Scalia) in returning the case to the lower courts, but with the dissent (Justice Stevens) on many other points while describing his independent framework for a “significant nexus” test to use in determining jurisdiction. After analysis of this very divided opinion the U.S. Department of Justice's determined that a water body falls under the Clean Water Act if it meets either the plurality (Scalia) or Kennedy tests for jurisdiction. See ASWM Analysis of Supreme Court Decision in Carabell/Rapanos http://www.aswm.org/fwp/aswm_paper.pdf
In June of 2007 EPA and the U.S. Army Corps of Engineers issued guidance to help field staff determine which waters were jurisdictional. Following a public comment period they made some minor adjustments late in 2008. http://www.epa.gov/owow_keep/wetlands/guidance/CWAwaters.html This is the guidance currently in place. The guidance recently sent to OMB would also address jurisdiction: whether it would expand on the existing guidance or replace it is unknown and will remain so until the anticipated opportunity for public review and comment occurs and the guidance is finalized—sometime in the coming months.
The existing guidance is useful in identifying some broad considerations that should be included in making jurisdictional determinations that incorporate the constraints on jurisdiction created by Carabell/Rapanos. However, it provides little scientific or technical direction that would create certainty and specificity. The existing guidance requires the application of a great deal of best professional judgment on a case by case basis. This means there has and will continue to be variability and in what waters are identified as jurisdictional around the country.
What guidance can do is limited by law. Guidance cannot alter regulations. In this case it can only further define existing regulations that describe waters regulated under the Clean Water Act as constrained by the Carabell/Rapanos and (earlier) SWANCC decisions. Guidance is a good first step, but rulemaking will be required for any truly substantial effort to clarify and simplify criteria for identifying waters of the U.S. under the Clean Water Act. In a recent letter to the Council on Environmental Quality Chair Nancy Sutley a group of leading sportsmen and conservation organizations urged the Administration to pursue rulemaking to provide a revised definition of “waters of the U.S.” that is consistent with both law and science. They are not alone. In the Carabell/Rapanos decisions both Justice Roberts and Justice Breyer called for rulemaking. Their request was echoed by many industry groups including the National Association of Homebuilders and the National Stone, Sand and Gravel Association.
Endangered Species Act Reform
- Alliance for the Wild Rockies v. Norton
- Alsea Valley Alliance v. Lautenbacher
- Animal Welfare Institute v. Martin
- Building Industry Association of the Bay Area (BIABA) and Bay Planning Coalition (BPC) v. National Marine Fisheries Service (NMFS)
- Building Industry Association of the Bay Area v. United States Fish and Wildlife Service
- Building Industry Association of Washington v. NOAA
- Butte Environmental Council v. US Army Corps of Engineers
- California Cattlemen's Association et al. v. Kempthorne
- Center for Biological Diversity v. Kempthorne
- Colorado River Cutthroat Trout v. Salazar
- Conservancy of Southwest Florida v. United States Fish and Wildlife Service
- Florida Home Builders Association v. United States Fish and Wildlife Service
- Florida Home Builders Association v. United States Fish and Wildlife Service
- Friends of Blackwater v. Salazar
- In re Petition of the Coalition of Labor, Agriculture, and Business (COLAB)
- Kern County Water Agency v. Watershed Enforcers
- Natural Resources Defense Council v. Salazar
- Otay Mesa Prop. LP v. U.S. Department of Interior
- Perdido Property Rights, Inc. v. United States Fish and Wildlife Service
- PLF v. U.S. Fish and Wildlife Service
- Riverside County Farm Bureau v. United States Fish and Wildlife Service
- Save the Plastic Bag Coalition v. City of Manhattan Beach
- Stevens County v. Loon Lake Property Owners Association
- Stewart & Jasper v. Salazar
- Strahan v. Holmes
- Washington Farm Bureau v. Salazar
- Western Watersheds Project v. Hall
- Yolo County Farm Bureau v. United States Fish and Wildlife Service
Clean Water Act Cases – Including Wetlands
- Acquest Wehrle LLC v. United States
- Amelia Venture Properties v. Environmental Protection Agency
- American Farm Bureau Federation v. Army Corps of Engineers
- Barnum Timber Co. v. Environmental Protection Agency
- Barnum Timber Co. v. North Coast Regional Water Quality Control Board
- Carabell v. United States Army Corps of Engineers
- Entergy Corp. v. EPA
- Fairbanks North Star Borough v. Corps of Engineers
- Great Northwest, Inc. v. United States Army Corps of Engineers
- Home Builders Association of Northern California v. Association of Bay Area Governments
- National Association of Home Builders v. United States Army Corps of Engineers
- National Environmental Defense Center v. Environmental Quality Commission
- Sackett v. Environmental Protection Agency
- Smith Farm v. Environmental Protection Agency
- United States v. Johnson
Ensuring Responsible Management of Public Lands and Natural Resources
- California Farm Bureau Federation v. California Department of Fish and Game
- Center for Biological Diversity v. United States Department of the Interior
National Parks & Conservation Association v. Bureau of Land Management
Protecting Freedom from Environmental Extremism
- Brown v. Adams
- Chamber of Commerce of the United States of America v. United States Environmental Protection Agency
- Comer v. Murphy Oil Co.
- Communities for a Better Environment v. South Coast Air Quality Management District
- Connecticut v. American Electric Power Co.
- JHP LLC v. Japp
- Native Village of Kivalina v. Exxon Mobil Corp
- Northwest Environmental Defense Center v. Brown
- San Luis & Delta-Mendota Water Authority v. Locke
Wide Scope of Stauffer Chemical Co.'s Operations Shown in SEC Application
Chem. Eng. News , 1953 , 31 (36), pp 3632–3642 DOI: 10.1021/cen-v031n036.p3632 Publication Date: September 1953 Copyright © 1953 AMERICAN CHEMICAL SOCIETY
FOR the first time in its 68-year history, Stauffer Chemical Co., is publicly financing through the issuance of $15 million deb-entures and 325,000 shares of common stock with a par value of $10. The securities will be offered by a banking syndicate in New York headed by Morgan Stanley and Co. (details on page 3694).
In its prospectus accompanying the stock offer, Stauffer throws a good deal of light on its chemical operations which heretofore have not been known. Since 1946, for example, it has added $41.8 million to plants and equipment through a program of construction and acquisition. It is a basic producer of carbon disulfide, sulfuric acid, carbon tetrachloride, caustic soda, chlorine, and agricultural chemicals.
Substantial amounts of these basic items are used by Stauffer in processing a diversiiied list of other chemicals, and the remainder are sold to the chemical, rayon, cellophane, rubber, petroleum, glass, soap, paper, textile, drug, food, and mining ...
2000 November 13: On November 13, 2000 Novartis and AstraZeneca merged their agribusinesses to form Syngenta, the first global group focusing exclusively on agribusiness. 1999 Astra AB of Sweden and Zeneca Group PCL of UK merge, becoming AstraZeneca. 1998 Novartis announces the formation of NADI, the Novartis Agricultural Discovery Institute, one of the largest single research endeavours dedicated to agricultural genomics research and development. 1997 Zeneca attains the rights to chlorothalonil from ISK.
Zeneca acquires Mogen, a Netherlands-based plant Biotechnology Company.
Novartis attains the crop protection division of Merck & Co, adding the insecticide abamectin to its list of products.1996 Zeneca offers the first GM tomato puree to customers. Tomatoes were enhanced to stay ripe in the field longer, resulting in better processing.
Zeneca Seeds and Cosun/ Royal VanderHave Group form the joint venture company Advanta.
Zeneca's strobilurin fungicide Amistar® achieves registration.
Sandoz and Ciba merge to form Novartis in one of the largest corporate mergers in history.1994 Zeneca is established after ICI demerges three of its businesses (Pharmaceuticals, Agrochemicals and Specialties) beginning in '93. 1990 Ciba-Geigy AG acquires Maag Group. 1987 ICI acquires Stauffer Chemical Company. 1985 ICI launches its insecticide Karate®. 1983 ICI Seeds is formed to add seed-breeding capability to the business. 1980 Ciba establishes a special biotechnology unit.
Sandoz acquired the Zaadunie group of Holland. Sluis & Groot (S&G)was one of the prominent marketing companies of Zaadunie. S&G is one of the three brandnames within Syngenta Seeds.1978 Introduction of systemic fungicide Ridomil by Ciba-Geigy. 1976 Sandoz attains Northrup King. 1975 Sandoz acquires Rogers Seed Company, moving into the seed market. 1974 Ciba expands into the seeds business with the acquisition of the US-based Funk Seeds International. 1973 PPL becomes fully independent from ICI agricultural division. 1970 ICI establishes ICI Americas Inc.
Ciba and Geigy merge to form Ciba-Geigy.1964 PPL becomes apart of ICI's Agriculture Division. 1956 Geigy introduces triazine-based herbicides (Simazine, Atrazine) allowing farmers to control weeds for the first time. 1954 A group of chemicals originally discovered in 1947 were re-evaluated by ICI, leading to the discovery and development of diquat and paraquat. 1953 PPL becomes wholly owned by ICI. 1940 Dr. Bill Templeman of ICI, at Jealott's Hill, discovers the selective properties of alphanapthylacetic acid, leading to the synthesis of the herbicides MCPA AND 2,4-D. 1939 Paul Müller, a Geigy researcher, discovers the insecticidal efficacy of DDT. 1937 Plant Production Limited (PPL) is formed as a fifty-fifty joint company between ICI and Cooper McDougall & Robertson Ltd. 1935 Geigy production of insecticides. 1928 ICI begins work on the Agricultural Research Station at Jealott's Hill in the UK. 1926 Imperial Chemical Industries is formed with merger of Brunner Mond Ltd, Nobel Industries, British Dyestuffs Coronation Ltd, and United Alkali Co. Ltd. 1884 Ciba is established. 1876 Sandoz is founded. 1758 Geigy is founded.
The Colbert Report Mon - Thurs 11:30pm / 10:30c The Word - Ownership Society
Colbert Report Full Episodes Political Humor & Satire Blog</a> Video Archive When All Appropriate Inquiry Isn't Enough:
Court Highlights the Significance of Other Factors in the Bone Fide Prospective Purchaser Defense
Contributor: Bryan CaveSUMMARY: Anyone who has been involved in a real estate transaction relating to commercial or industrial property has likely dealt with conducting “All Appropriate Inquiry” into the site, which generally includes the preparation of a Phase I Environmental Site Assessment and may include Phase II sampling work. All Appropriate Inquiry (“AAI”) is one necessary component of the “bona fide prospective purchaser” (“BFPP”) defense established under the 2002 Brownfields amendments to Comprehensive Environmental Response, Compensation and Liability Act (“CERCLA”). The BFPP defense is intended to protect property owners from liability for contamination that clearly occurred prior to their period of ownership. However, conducting AAI is not the only prerequisite to establishing a BFPP defense. The BFPP requirements beyond AAI are highlighted in , Ashley II of Charleston, LLC v. PCS Nitrogen, et al., 2010 U.S. Dist. LEXIS 104772 (D.S.C. Sep. 30, 2010), one of the first cases to address in detail the BFPP defense.
In this case, Ashley purchased property that had a long history of industrial use. In conjunction with that purchase, Ashley's environmental consultant performed Phase I and Phase II work. After the purchase, Ashley demolished many of the above-ground improvements on the property. When liability for contamination at the property was addressed, a significant battle between several potentially responsible parties arose. Ashley sought to take advantage of the BFPP defense to avoid liability. The elements of the BFPP defense are, in summary: (a) disposal of hazardous substance occurred prior to acquisition; (b) the purchaser conducted AAI; (c) the purchaser provided all required notices with respect to the discovery or release of any hazardous substance; (d) the purchaser exercises appropriate care with respect to hazardous substances found; (e) the purchaser cooperates with agencies; (f) the purchaser complies with institutional controls; (g) the purchaser complies with information requests or administrative subpoena; (h) the purchaser is not affiliated with a potentially responsible party. In the end, the court closely scrutinized each element of the test and determined that Ashley was not a BFPP.
Chesebrough-Pond's USA, Inc. represents such cornerstone household items as Vaseline Petroleum Jelly, Pond's beauty creams, Q-Tips swabs, and Ragú spaghetti sauce. With roots dating back to the turn of the century, the company had experienced constant growth and profitability, until it was destabilized by its acquisition of the Stauffer Chemical Company, which in turn led to its takeover by Unilever N.V. in 1986.
Chesebrough made a surprising $1.25 billion bid for Stauffer Chemical Company in 1985. Makers of weed killers, pesticides, and flame retardants, Stauffer had been suffering from a lackluster performance at the time.
Lucas announces new House Ag Committee
Chairman-elect Frank Lucas (R-OK) named six members to serve as subcommittee chairmen of the House Agriculture Committee Dec. 21. He also released a complete list of the Republican roster for the 112th Congress and named Rep. Bob Goodlatte (R-VA) as vice chairman of the full committee.
"Our subcommittee chairmen have demonstrated a commitment to ensuring the success of American agriculture and rural economies. They are ready to join me in addressing the challenges that farmers, ranchers, and small businesses face across rural America. The next year will be an exercise in educating our freshmen members on both sides of the aisle, providing oversight of the administration and building a strong working relationship as we prepare to reauthorize the farm bill in 2012," said Lucas.
Lucas designated the following Subcommittee Chairmen and their jurisdictions (listed alphabetically by subcommittee name):
--Rep. Glenn "GT" Thompson (PA-5), Conservation, Energy, and Forestry.
Jurisdiction: Soil, water, and resource conservation, small watershed program, energy and bio-based energy production, rural electrification, forestry in general and forest reserves other than those created from the public domain.
--Rep. Jeff Fortenberry (NE-1), Department Operations, Oversight, and Credit.
Jurisdiction: Agency oversight, review and analysis, special investigations, and agricultural credit.
--Rep. K. Michael Conaway, (TX-11), General Farm Commodities and Risk Management.
Jurisdiction: Program and markets related to cotton, cottonseed, wheat, feed grains, soybeans, oilseeds, rice, dry beans, peas, lentils, the Commodity Credit Corporation, risk management, including crop insurance, commodity exchanges, and specialty crops.
--Rep. Tom Rooney (FL-16), Livestock, Dairy, and Poultry.
Jurisdiction: Livestock, dairy, poultry, meat, seafood and seafood products, inspection, marketing, and promotion of such commodities, aquaculture, animal welfare, and grazing.
--Rep. Jean Schmidt (OH-2), Nutrition and Horticulture.
Jurisdiction: Food stamps, nutrition and consumer programs, fruits and vegetables, honey and bees, marketing and promotion orders, plant pesticides, quarantine, adulteration of seeds and insect pests, and organic agriculture.
--Rep. Timothy V. Johnson (IL-15), Rural Development, Research, Biotechnology, and Foreign Agriculture.
Jurisdiction: Rural Development, farm security and family farming matters, biotechnology, foreign agriculture assistance, and trade promotion programs, generally.
Republican members of the agriculture committee are Chairman-elect Frank D. Lucas (OK), Vice Chairman-elect Bob Goodlatte (VA), Timothy V. Johnson (IL), Steve King (IA), Randy Neugebauer (TX), K. Michael Conaway (TX), Jeff Fortenberry (NE), Jean Schmidt (OH), Glenn Thompson (PA), and Tom Rooney (FL). New members include Rick Crawford (AR), Scott DesJarlais (TN), Renee Elmers (NC), Stephen Fincher (TN), Bob Gibbs (OH), Chris Gibson (NY), Vicky Hartzler (MO), Tim Huelskamp (KS), Randy Hultgren (IL), Reid Ribble (WI), Martha Roby (AL), Bobby Schilling (IL), Austin Scott (GA), Steve Southerland (FL), Marlin Stutzman (IN), and Scott Tipton (CO).
EPA lets tribes talk
Safeguarding environment and heritage
The Colbert Report Mon - Thurs 11:30pm / 10:30c Native American Overlords
Colbert Report Full Episodes Political Humor & Satire Blog</a> March to Keep Fear Alive Tools to Address Tenant Liability Concerns
The Colbert Report Mon - Thurs 11:30pm / 10:30c Gold Faithful
Colbert Report Full Episodes Political Humor & Satire Blog</a> March to Keep Fear Alive •NCP states that a site may be deleted from the NPL where no further response is appropriate
•EPA interprets this criteria to mean that a site may be deleted when all removals and remedial actions are completed
–all cleanup goals have been achieved, and
–all institutional controls are in place
•Note that Operation &Maintenance (O&M) is not defined as a response by the NCP; therefore. a site with continuing O&M can be deleted.•EPA must determine, in consultation with the State, that oneof the following criteria has been met:
��Responsible or other parties have implemented all response actions required;
��All appropriate Fund-financed response under CERCLA has been implemented, and no further response action by responsible parties is appropriate; or
��The remedial investigation has shown that the release(s) poses no significant threat to public health or environment, and therefore, taking of remedial measures is not appropriate.•The Deletion process may begin once a site has achieved the site construction completion milestone
•Regional staff prepare a deletion docket containing all of the pertinent information supporting the deletion recommendation including the letter of concurrence from the State. A site can not be deleted if the state does not concur
•Deletion dockets should be available to the public at the EPA Regional office and a local repository. Docket information should also be electronically available or referenced in the Federal Docket Management System (FDMS)
•Regions publish the Notice of Intent to Delete (NOID) in the Federal Register (FR). The NOID informs the public of EPA’s intention to delete a site from the NPL. The NOID provides for a 30 day public comment period•Sites can be deleted using a direct final notice procedure
•This procedure is to publish both a NOID and NOD in the same FR Notice, and declare that the NOD will become effective unless EPA receives adverse or critical comments during the public comment period
–Eliminates second round of reviews, thereby reducing the amount of internal time needed to finalize the deletion process
–If adverse or critical comments are not received, the deletion becomes effective without any further EPA action
•If adverse comments are received, the Region must issue a notice in the FR withdrawing the deletion. The withdrawal notice must be published in the FR within 60 days of the original notice•Sites can be deleted using a direct final notice procedure
•This procedure is to publish both a NOID and NOD in the same FR Notice, and declare that the NOD will become effective unless EPA receives adverse or critical comments during the public comment period
–Eliminates second round of reviews, thereby reducing the amount of internal time needed to finalize the deletion process
–If adverse or critical comments are not received, the deletion becomes effective without any further EPA action
•If adverse comments are received, the Region must issue a notice in the FR withdrawing the deletion. The withdrawal notice must be published in the FR within 60 days of the original noticeU.S. Environmental Protection Agency
Office of Solid Waste and Emergency Response
Federal Facilities Restoration & Reuse Office
Website:http://www.epa.gov/fedfac
Office of Superfund Remediation & Technology Innovation
Website:http://www.epa.gov/superfund
Office of Enforcement and Compliance Assurance
Federal Facilities Enforcement Office
Website: http://www.epa.gov/compliance/federalfacilities
Federal Facilities Environmental Stewardship and Compliance Assistance Center
Website: http://www.fedcenter.govWednesday, January 5, 2011
Water Infrastructure Financing: History of EPA Appropriations
Claudia Copeland
Specialist in Resources and Environmental Policy
The principal federal program to aid municipal wastewater treatment plant construction is authorized in the Clean Water Act (CWA). Established as a grant program in 1972, it now capitalizes state loan programs. Authorizations since 1972 have totaled $65 billion, while appropriations have totaled $85 billion. It has represented 25-30% of total funds appropriated to the Environmental Protection Agency (EPA) in recent years.
In appropriations legislation, funding for EPA wastewater assistance is contained in the measure providing funds for the Department of the Interior, Environment, and Related Agencies, which includes EPA. Within the portion of that bill which funds EPA, wastewater treatment assistance is specified in an account now called State and Tribal Assistance Grants (STAG). Three trends in the funding of this account are most prominent: inclusion of non-infrastructure environmental grants to states, beginning in FY1993; increasing number and amount of special purpose grants since FY1989; and the addition of grant assistance for drinking water treatment projects in FY1997. This report summarizes, in chronological order, congressional activity to fund items in this account since 1987.
Prior to the 1987 amendments, wastewater treatment assistance was provided in the form of grants made to municipalities. The federal share of project costs was generally 55%; state and local governments were responsible for the remaining 45%. The 1987 amendments altered this arrangement by replacing the traditional grant program with one that provides federal grants to capitalize state clean water loan programs, or state revolving funds (SRFs). Appropriations for the clean water SRF program through FY2010 have totaled $33 billion. As a general matter, states and cities support the program changes made by the 1987 amendments and the shift to a loan program that was intended to provide long-term funding for water quality and wastewater construction activities. However, the change means that local communities now are responsible for 100% of projects costs, rather than 45%, because they are required to repay loans to states. The greater financial burden of the act's loan program on some cities has caused some to seek continued grant funding.
This has been particularly evident in the appropriations process where, in recent years, Congress has reserved as much as 30% of funds in the STAG account for special purpose grants directed to specified communities. Since FY2000, appropriators have awarded earmarks to a larger total number of projects, resulting in more communities receiving such grants, but at the same time receiving smaller amounts of funds, on average. Most of the funded projects are not authorized in the Clean Water Act or the Safe Drinking Water Act. State water quality officials, state infrastructure financing officials, and EPA have objected to this practice, since it reduces the amount of funding for state SRF programs. Since FY1997, the STAG account also has been used to fund a drinking water SRF grant program established by Congress in 1996. Appropriations for the drinking water SRF program through FY2010 have totaled $14.5 billion.
The statutory protections found at CERCLA § 107(r)(1) and §101(40) are self-implementing, and EPA generally will not be involved with facility-specific transactions or determinations of BFPP status. There may be instances on a site-specific basis, however, where EPA determines that it would be necessary and appropriate to address a tenant’s liability concerns through an existing tool or policy (e.g., a comfort/status letter or a prospective lessee agreement).7 In addition, EPA may use such tools on a case-by-case basis where it is appropriate to address liability concerns of tenants not covered by this guidance.Title 40: Protection of Environment
PART 27—PROGRAM FRAUD CIVIL REMEDIES
§ 27.1 Basis and purpose.
(a) Basis. This part implements the Program Fraud Civil Remedies Act of 1986, Public Law No. 99–509, sections 6101–6104, 100 Stat. 1874 (October 21, 1986), to be codified at 31 U.S.C. 3801–3812. 31 U.S.C. 3809 of the statute requires each authority head to promulgate regulations necessary to implement the provisions of the statute.
(b) Purpose. This part (1) establishes administrative procedures for imposing civil penalties and assessments against persons who make, submit, or present, or cause to be made, submitted, or presented, false, fictitious, or fraudulent claims or written statements to the Environmental Protection Agency, and (2) specifies the hearing and appeal rights of persons subject to allegations of liability for such penalties and assessments.
1 Section 120(b) of the Superfund Amendments and Reauthorization Act of 1986 (P.L. 99–499) provides:
(b) LIMITED GRANDFATHER.—Section 120 of CERCLA shall not apply to any response action or remedial action for which a plan is under development by the Department of Energy on the date of enactment of this Act [October 17, 1986] with respect to facilities—
(1) owned or operated by the United States and subject to the jurisdiction of such Department;(3) published in the National Priorities List.
In preparing such plans, the Secretary of Energy shall consult with the Administrator of the Environmental Protection Agency.Effective Date Section 121(b) of Pub. L. 99-499 provided that: ``With respect to section 121 of CERCLA [this section], as added by this section-- ``(1) The requirements of section 121 of CERCLA shall not apply to any remedial action for which the Record of Decision (hereinafter in this section referred to as the `ROD') was signed, or the consent decree was lodged, before date of enactment [Oct. 17, 1986]. ``(2) If the ROD was signed, or the consent decree lodged, within the 30-day period immediately following enactment of the Act [Oct. 17, 1986], the Administrator shall certify in writing that the portion of the remedial action covered by the ROD or consent decree complies to the maximum extent practicable with section 121 of CERCLA. Any ROD signed before enactment of this Act [Oct. 17, 1986] and reopened after enactment of this Act to modify or supplement the selection of remedy shall be subject to the requirements of section 121 of CERCLA.''
In Levins Metal Corp. v. Parr-Richmond Terminal Co., 817 F.2d 1448 (9th Cir.1987), where the court applied California state law in determining successor liability under CERCLA. There, the court explained that when the issue deals with the "capacity to be sued" rather than the "imposition of liability," state law applies.
We have recognized two other exceptions to the general rule: (1) when review is necessary to prevent miscarriage of justice or to preserve the integrity of the judicial process, and (2) when a new issue arises during a pending appeal because of a change in the law. See Bolker, 760 F.2d at 1042.
Presidential Documents
Federal Register
Vol. 47, No. 137
Friday, July 16, 1982Title 3 -- Executive Order 12372 of July 14, 1982
The President Intergovernmental Review of Federal Programs
By the authority vested in me as President by the Constitution and laws of the United States of America, including Section 401(a) of the Intergovernmental Cooperation Act of 1968 (42 U.S.C. 4231(a)) and Section 301 of Title 3 of the United States Code, and in order to foster an intergovernmental partnership and a strengthened federalism by relying on State and local government coordination and review of proposed Federal financial assistance and direct Federal development, it is hereby ordered as follows:
Section 1. Federal agencies shall provide opportunities for consultation by elected officials of those State and local governments that would provide the non-Federal funds for, or that would be directly affected by, proposed Federal financial assistance or direct Federal development.
Sec. 2. To the extent the States, in consultation with local general purpose governments, and local special purpose governments they consider appropriate, develop their own processes or refine existing processes for State and local elected officials to review and coordinate proposed Federal financial assistance and direct Federal development, the Federal agencies shall, to the extent permitted by law:
(a) Utilize State processes to determine official views of State and local officials.
(b) Communicate with State and local elected officials as early in the program planning cycle as is reasonably feasible to explain specific plans and actions.
(c) Make efforts to accommodate State and local elected officials' concerns with proposed Federal financial assistance and direct Federal development that are communicated through the designated State process. For those cases where the concerns cannot be accommodated, Federal officials shall explain the bases for their decision in a timely manner.
(d) Allow the States to simplify and consolidate existing Federally required State plan submissions. Where State planning and budgeting systems are sufficient, and where permitted by law, the substitution of State plans for Federally required State plans shall be encouraged by the agencies.
(e) Seek the coordination of views of affected State and local elected officials in one State with those of another State when proposed Federal financial assistance or direct Federal development has an impact on interstate metropolitan urban centers or other interstate areas. Existing interstate mechanisms that are redesignated as part of the State process may be used for this purpose.
(f) Support State and local governments by discouraging the reauthorization or creation of any planning organization which is Federally-funded, which has a Federally-prescribed membership, which is established for a limited purpose, and which is not adequately representative of, or accountable to, State or local elected officials.
Sec. 3. (a) The State process referred to in Section 2 shall include those where States delegate, in specific instances, to local elected officials the review, coordination, and communication with Federal agencies.
(b) At the discretion of the State and local elected officials, the State process may exclude certain Federal programs from review and comment.
Sec. 4. The Office of Management and Budget (OMB) shall maintain a list of official State entities designated by the States to review and coordinate proposed Federal financial assistance and direct Federal development. The Office of Management and Budget shall disseminate such lists to the Federal agencies.
Sec. 5. (a) Agencies shall propose rules and regulations governing the formulation, evaluation, and review of proposed Federal financial assistance and direct Federal development pursuant to this Order, to be submitted to the Office of Management and Budget for approval.
(b) The rules and regulations which result from the process indicated in Section 5(a) above shall replace any current rules and regulations and become effective April 30, 1983.
Sec. 6. The Director of the Office of Management and Budget is authorized to prescribe such rules and regulations, if any, as he deems appropriate for the effective implementation and administration of this Order and the Intergovernmental Cooperation Act of 1968. The Director is also authorized to exercise the authority vested in the President by Section 401(a) of that Act (42 U.S.C. 4231(a)), in a manner consistent with this order.
Sec. 7. The Memorandum of November 8, 1968, is terminated (33 Fed. Reg. 16487, November 13, 1968). The Director of the Office of Management and Budget shall revoke OMB Circular A-95, which was issued pursuant to that Memorandum. However, Federal agencies shall continue to comply with the rules and regulations issued pursuant to that Memorandum, including those issued by the Office of Management and Budget, until new rules and regulations have been issued in accord with this Order.
Sec. 8. The Director of the Office of Management and Budget shall report to the President within two years on Federal agency compliance with this Order. The views of State and local elected officials on their experience with these policies, along with any suggestions for improvement, shall be included in the Director's report.
THE WHITE HOUSE
July 14, 1982
1 Section 121(b) of the Superfund Amendments and Reauthorization Act of 1986 (P.L. 99–499) provides:
(b) EFFECTIVE DATE.—With respect to section 121 of CERCLA, as added by this section—
(1) The requirements of section 121 of CERCLA shall not apply to any remedial action for which the Record of Decision (hereinafter in this section referred to as the ‘‘ROD’’) was signed, or the consent decree was lodged, before date of enactment [October 17, 1986].
(2) If the ROD was signed, or the consent decree lodged, within the 30-day period immediately following enactment of the Act, the Administrator shall certify in writing that the
portion of the remedial action covered by the ROD or consent decree complies to the maximum extent practicable with section 121 of CERCLA.
Any ROD signed before enactment of this Act and reopened after enactment of this Act to modify or supplement the selection of remedy shall be subject to the requirements of section 121 of CERCLA.
IRON MOUNTAIN MINE EPA ID: CAD980498612 OU 01 REDDING, CA 10/03/1986DECLARATIONS:
CONSISTENT WITH THE COMPREHENSIVE ENVIRONMENTAL RESPONSE, COMPENSATION, AND LIABILITY ACT OF 1980 (CERCLA) AND THE NATIONAL OIL AND HAZARDOUS SUBSTANCES POLLUTION CONTINGENCY PLAN (NCP) 40 CFR PART 300 ET.SEQ., I HAVE DETERMINED THAT THE OPERABLE UNIT REMEDY PREVIOUSLY IDENTIFIED IS A COMPONENT OF WHAT WILL BE THE APPROPRIATE FUND-FINANCED ACTION FOR THIS SITE IN ACCORDANCE WITH SECTION 300.68 (J) OF THE NCP. THESE ARE COMPONENTS OF A FINAL EPA REMEDY THAT WILL PROVIDE ADEQUATE PROTECTION OF THE PUBLIC HEALTH AND WELFARE AND THE ENVIRONMENTDisputing Jurisdiction When You Are Sued for Debt
By Kenneth GibertWhen you're being sued for debt, one of your first questions should be whether or not the court has "jurisdiction" (the right and power to decide the case against you). There are two kinds of jurisdiction you should consider: "personal" jurisdiction and "subject matter" jurisdiction. Although the two aren't always so neatly differentiated, the type of jurisdiction you're considering can make a lot of difference.
Personal Jurisdiction
Personal jurisdiction (in legalese this is often called " in personam jurisdiction") is the court's right to consider cases involving you personally. In general, in order for a court to have personal jurisdiction, you must have received adequate notice of the suit and must have sufficient links to the jurisdiction.
Adequate Notice
In consumer cases, "adequate notice" almost always means "service" of the summons upon you personally. That means a process server, often a deputy with the local government, but maybe just as often a private individual (normally cannot be a party to the suit or their lawyer), must hand you, or offer to hand you, the summons. If the process server does hand you or offer the summons, you have been served, and you normally have adequate notice at that point. A process server can also leave the summons with an adult member of your household at your residence.
Sufficient Connection to the Jurisdiction
For a court to assert jurisdiction over you, you must also have an adequate connection to the jurisdiction for it to be "fair" to haul you into court there. In many cases involving contracts, the contract will specify (as is allowed) that a certain court will have jurisdiction. In cases involving debt collectors, however, the Fair Debt Collection Practices Act (FDCPA) specifies that if you are a consumer, you can be sued on a debt in only two places: where you actually signed the contract; or where you currently reside . Or, if it involves real property, only in the jurisdiction of the property. 16 U.S.C. Section 1692i(a).
Because the FDCPA is a statute (written law), whereas the requirements of personal jurisdiction are constitutional, it is conceivable (but unlikely) that it could be unfair to bring suit where you signed the contract.
Subject Matter Jurisdiction
Subject matter jurisdiction involves the power of the court to hear cases like yours. Federal cases, for example, must have some federal basis for jurisdiction. In cases involving debt, this is quite unlikely, so you will not likely be sued in federal court. The FDCPA, on the other hand, does provide for federal jurisdiction, so you could bring a suit in any federal or state court on a claim under that Act.
A Gray Area
Sometimes personal jurisdiction can be the same as subject matter jurisdiction. For example, as I noted above, the FDCPA requires that claims against consumers by debt collectors be brought in specified jurisdictions. That's personal to you, of course, but does it also deprive the court of subject matter jurisdiction? It might, but you'd be better off considering it personal for purposes of contesting it.
Contesting or Disputing Jurisdiction
The main rule to keep in mind is that if you answer the petition without contesting jurisdiction from the very beginning, you will have "waived" your objections to personal jurisdiction . You must assert your defense to personal jurisdiction either separately in a "limited entry of appearance" for the purpose of hearing your motion to dismiss (some jurisdictions have eliminated the "limited entry" and just allow you to file a motion to dismiss). Or you can simply not respond to the suit and attack a judgment if it is entered against you in a court that does have jurisdiction. I see this as risky, but it might be necessary if you are being sued in a distant jurisdiction.
Notice that I said you could waive your objection to personal jurisdiction. That's because it applies to you. Subject matter jurisdiction, on the other hand, cannot be waived, and you can attack that at any time.
A Hint
The Rules of Civil Procedure for your jurisdiction will specify what other kinds of motions can be filed and need to be filed before answering the petition. A good place to start is by looking under "motions to dismiss" in your Rules.
If you are being harassed or sued for debt, you can get a lot of help, much of it free, from my website at: http://yourlegallegup.com .
Or please take a look at a brief video presentation: http://www.youtube.com/watch?v=WcxsiR5vedU .
Kenneth H. Gibert.
I Received a J.D. from Washington University Law School in 1989 and practiced law in St. Louis city and county (federal, state and local courts) for almost fifteen years, the last several of which were focused almost exclusively on debt litigation. My mission is to protect ordinary people from being taken advantage of by the debt collectors. Sign up for a free report and more help for people struggling with debt.
Article Source: http://EzineArticles.com/?expert=Kenneth_Gibert
FACILITIES MANAGEMENT RESOURCES
BEST PRACTICES
Disposal/Reuse
Integrated Early Transfer Disposal
Department of the Army, 2002The process to determine if a site’s
groundwater may naturally be of poor
quality is remarkably simple. It appears
difficult because the procedures are
scattered throughout the regulations
and are often misinterpreted. All that is
required is to determine if groundwater
from a background location contains
“naturally occurring contaminants” in
excess of their respective GCTL. It is
not necessary to reclassifr the aquifer.
The applicable regulations are found
in Chapter 62-780.200(5) F.A.C.,
Chapter 62-780.200(35) F.A.C. and
Chapter 62-780.680(2) (c) (1) F.A.C.Currently, a GCTL of 0.3 mg/L is
being used to determine if groundwater
must be remediated through actions
like pump and treat. This GCTL is not
health based and ignores the possibility
that the groundwater at the site is
unacceptable for consumption because
of the presence of “naturally occurring
contaminants.”Iron is an essential nutrient for humans
as it is a constituent of hemoglobin, and
a number of enzymes. The adequate
intake of iron for infants from birth to
6 months is estimated to be 0.27
milligram per day (mg/day). This
value was based upon the average
iron concentration in human milk of
0.35 mg/LA The iron recommended
daily allowance (RDA) ranges from
a low of 7 mg/day for children age
1 through 3 years to a high of 27
mg/day for pregnant w5omen. The
RDA range is the reason that overthe-
counter multimineral supplements
(e.g., Advanced Formula Centrum®)
show that each tablet has 18 mg of iron
and note that this value represents 100
percent of the “Daily Value.” The iron
concentration in the empty human adult
stomach after taking one multimineral
tablet with one 8-ounce glass of water is
therefore 75 mgIL. This concentration
is 250 times the GCTL in Chapter
62-777 F.A.C. of 0.3 mg/L.
Clearly the iron GCTL of 0.3 mg/L is
not health based and does not consider
the fact that this compound is an
essential nutrient. A more appropriate
approach, for essential nutrients, is
to develop GCTLs that take into
consideration the “risk of inadequacy”
and the “risk of adverse effects.”
Unfortunately, the equations used
in Chapter 62-777 F.A.C. are not
appropriate if the compound is an
essential nutrient; therefore, an alternate
approach is needed.
There is a problem when a GCTL must
be developed for an essential nutrient
like iron. Simply put, the conventional
approach used to develop the GCTL
does not consider the adverse health
effects of being exposed to too small an
amount of an essential nutrient. The
conventional equations used to generate
GCTLs do address the “risk of adverse
effects,” but do not address what is
known as the “risk of inadequacy.”
This matter is a current concern to the
U.S. Environmental Protection Agency
(EPA) and new guidance was released
last y6ear.Exhibit 2-4
Summary of Region IV LUCAP
Requirements
1. A LUC implementation plan, the objectives for
the area, and the particular controls or
mechanisms to be implemented.
2. The program and point-of-contact responsible for
monitoring, maintenance, and enforcement.
3. A commitment by the facility to request funds for
maintaining LUCs.
4. Quarterly onsite monitoring unless another
monitoring frequency is approved.
5. Notification when a major change in land use is
anticipated.
6. Annual field inspections.
7. Certification of continued compliance in an
annual report.
8. Notification upon discovery of unauthorized
“major change in land use.”Exhibit 2-6
Summary of Region X
Facility-Wide IC Requirements
A. Develop a comprehensive facility-wide approach
for establishing, implementing, enforcing, and
monitoring ICs at the facility. This approach will
frequently include a Base Master Plan or a facilitywide
land use plan, installation maps, a
comprehensive permitting system, and other
installation policies and orders.
B. Submit to EPA and the state a monitoring report
on the status of the ICs within six months of
signature on the decision document with an
updated monitoring report submitted annually
thereafter.
C. Notify EPA and the state immediately upon
discovery of any activity that is inconsistent with
the operable unit-specific institutional control
objectives for the site, or of any change in the
land use or land use designation of a site
addressed under item (A).
D. Identify a point of contact for implementing,
maintaining, and monitoring institutional controls.
E. Request and obtain funding to institute and
maintain institutional controls. (This requirement
can be dropped if the facility can demonstrate a
duplicate or similar requirement in a Federal
Facility Agreement or similar document.)
F. Notify EPA and the state at least six months prior
to any transfer, sale, or lease of any property
subject to institutional controls required by an
EPA decision document.
G. Restrict the deletion or termination of any
institutional control unless EPA and the state
have concurred in the deletion or termination.EPA’s Federal Facilities Restoration and Reuse Office
EPA has statutory obligations related to the cleanup and property transfer of installations on the NPL
–CERCLA Section 120•Privatization is expected to be used more frequently for environmental cleanup
–DoD believes privatization is a better way of doing business(e.g., NTC Orlando = Baldwin Park, a 2006 Phoenix Award winner)
–To date, early transfer with privatization has onlybeen done at non-NPL facilities
–NPL sites differ significantly from non-NPL sites because:
•EPA must approve the early transfer
•NPL sites generally will have a Federal Facility Agreement (FFA)in place
•Certain provisions of CERCLA specifically apply to NPL sites, such as EPA and DoD joint selection of cleanup remedy
•NPL sites may have greater contaminationExhibit 2-7
Relevant DOE Orders
DOE Order # Title Objective
5400.1 General Env. Protection Prog. To establish environmental protection program
requirements, authorities, and responsibilities for DOE
operations for assuring compliance with applicable
federal, state, and local environmental protection laws
and regulations, executive orders, and internal
Department policies.
5400.5 Rad. Protect. of the Public & Env. To operate DOE facilities and conduct its activities so
that radiation exposures to members of the public are
maintained within the limits established in this Order and
to control radioactive contamination through the
management of real and personal property. It is also a
DOE objective that potential exposures to members of
the public be as far below the limits as is reasonably
achievable (ALARA) and that DOE facilities have the
capabilities, consistent with the types of operations
conducted, to monitor routine and non-routine releases
and to assess doses to members of the public.
4300.1C Real Property Management To establish Department-wide policies and procedures for the
acquisition, use inventory, and disposal of real property or
interests therein.
435.1 Radioactive Waste Mgmt. To establish policies, guidelines, and minimum
requirements by which DOE manages its radioactive and
mixed waste, and contaminated facilities. This Order
replaced Order 5820.2A.
430.1A Life Cycle Asset Management To plan, acquire, operate, maintain, and dispose of
physical assets as valuable national resources.
Stewardship of these assets shall be accomplished in a
safe and cost-effective manner to meet the DOE mission,
and to ensure protection of workers, the public, and the
environment.
4320.1B Site Development Planning Identifies the analyses that must be conducted in order for DOE
property to be considered excess and available for transfer toState Regulations
Many state agencies have policies or regulations on the use of institutional controls in remedies
conducted in their state. At the time that this document was developed, 42 states referenced the
use of institutional controls in the state’s environmental regulations.14 These regulations may be more
restrictive or specific than the federal regulations that apply at the facility. Before selecting any remedy
that will include the use of institutional controls, facility personnel should consult and coordinate with
state environmental regulators, local redevelopment authorities, and state real estate attorneys to
determine the state’s position on the use of institutional controls. For example, Tennessee has
developed a policy on the use of “perpetual institutional controls.”15 This policy outlines the state’s
requirements for RODs that will rely on perpetual institutional controls. This policy originally applied to
the remediation of a uranium burial ground at the Oak Ridge Reservation, but was made applicable to
all onsite areas through a state policy on “Natural Attenuation and ARAR Waivers for Oak Ridge14 Based on a search of the ENFLEX database of state and federal regulations; February, 1999. The list of
42 states includes : Alabama, Alaska, Arizona, Colorado, Connecticut, Delaware, Florida, Idaho, Illinois, Indiana,
Iowa, Kansas, Kentucky, Louisiana, Maine, Massachusetts, Michigan, Mississippi, Missouri, Montana, Nebraska,
Nevada, New York, New Jersey, New Mexico, North Dakota, North Carolina, Ohio, Oklahoma, Oregon, Pennsylvania,
Puerto Rico, Rhode Island, South Carolina, Tennessee, Texas, Utah, Vermont, Virginia, Washington, West Virginia,
and Wyoming.
15 State of Tennessee, Guidance Policy on Perpetual Institutional Controls, September 1, 1997.Ninth Circuit Defines “Current Ownership” for Purposes of CERCLA Liability
Posted by Michael Einhorn, Esq. in CERCLA , Environmental Legislation and Regulation on August 5, 2010In Dept. of Toxic Substances Control v. Hearthside Residential Corp. , No. 09-55389 (9 th Cir. July 22, 2010), the Ninth Circuit has clarified the issue of whether “owner and operator” status under CERCLA is defined at the time cleanup costs are incurred or instead at the time that a recovery lawsuit seeking reimbursement is filed, a question of first impression. The Ninth Circuit held that current ownership is measured at the time of cleanup, and therefore “the owner of the property at the time cleanup costs are incurred is the current owner for purposes of determining CERCLA liability.”
The litigation relates to undeveloped wetlands known as the Fieldstone Property, and certain adjacent residential parcels (“Residential Site”). The defendant, Hearthside Residential Corporation (“Hearthside”), purchased the Fieldstone Property in 1999 knowing that the property was contaminated with polychlorinated biphenyls (“PCBs”). In 2002, Hearthside entered into a consent order with the State of California, Department of Toxic Substances Control (“DTSC”), in which Hearthside agreed to remediate the PCB contamination on the Fieldstone Property. DTSC further alleged that the PCBs from the Fieldstone Property had migrated onto the adjacent Residential Site. Hearthside disputed DTSC's allegation, and remediated only the Fieldstone Property. DTSC certified Hearthside's completion of the Fieldstone Property on December 1, 2005, and Hearthside sold that property later that month. Meanwhile, DTSC contracted to remediate the Residential Site and incurred cleanup expenses between July 2002 and October 2003, while Hearthside still owned the Fieldstone property. In October, 2006, DTSC filed a complaint against Hearthside seeking reimbursement for the Residential Site cleanup, among other relief. Thus, Hearthside owned the Fieldstone Property at the time of DTSC's cleanup, but not when DTSC filed its complaint.
DTSC's complaint was based, in relevant part, on (1) DTSC's allegation that the Fieldstone Property was the source of the contamination on the Residential Site, and (2) the fact that Hearthside owned the Fieldstone Property at the time the Residential Site was cleaned. CERCLA imposes strict liability for environmental contamination upon four classes of potentially responsible parties, one of which is the “owner and operator of a vessel or a facility.” 42 U.S.C. § 9607(a)(1). Other courts have defined this category of responsible parties to refer to “current” owners or operators. Hearthside , citing Carson Harbor Vill., Ltd. v. Unocal Corp ., 270 F.3d 863, 881 (9th Cir. 2001) (en banc); accord , e.g. , United States v. Capital Tax Corp. , 545 F.3d 525, 530 (7th Cir. 2008); ITT Indus., Inc. v. BorgWarner, Inc. , 506 F.3d 452, 456 (6th Cir. 2007). However, CERCLA does not define the date from which to measure ownership. The district court granted partial summary judgment in favor of DTSC, finding that “owner” status is determined at the time a response-recovery claim accrues (when the cleanup occurs), not at the time the lawsuit is initiated. The parties jointly requested immediate certification of the issue for appeal, which the trial court granted. The 9 th Circuit accepted the appeal of this question of law.
The 9 th Circuit noted that CERCLA is silent on the issue of the date from which ownership is measured, and therefore looked to the statutory context and CERCLA's purposes to deduce Congress's intent. Regarding Congress's intent, the court reasoned that because the applicable statute of limitations is triggered at the time of cleanup, this suggests Congress's intent was to make the owner at the time of cleanup the “current owner.”
Regarding CERCLA's purposes, the Court reasoned that CERCLA encourages early settlements rather than litigation. However, by attaching “current owner” status to a potentially responsible party only at the time of the filing of a lawsuit could cause many premature suits to be filed, contrary to CERCLA's the goal of encouraging early settlements. In addition, settlement requires the responsible party's agreement to remediate the property; the owner at the time of cleanup can select from alternative remedial plans, and therefore that owner should be responsible for the cost of the cleanup. The Court also reasoned that CERCLA discourages delay of remediation, and attaching “current owner” status at the time of remediation would not encourage delay, stating:
“[A] landowner that knows it will ultimately be responsible for the cleanup costs has no incentive to delay the completion of that process once it has begun. Conversely, . . . a landowner seeking to avoid liability by transferring the property before a lawsuit is filed has every incentive to delay completing the cleanup process until it has found a buyer; the recovery suit is likely to be filed once cleanup is complete and the total cost is known.”
The decision does not address the second category of “owner” liability under CERCLA, namely “any person who at the time of disposal of any hazardous substance owned or operated any facility at which such hazardous substances were disposed of…” 42 U.S.C. § 9607(a)(2). Any former property owner evaluating its potential liability under CERCLA must consider the possible applicability of both categories of “owner” liability, along with the timing of any remedial actions taken on that property or adjoining properties pursuant to this decision.
•EPA Administrator (and Governor of the State) required to approve the covenant deferral request for all NPL early transfers
–Service may retain cleanup responsibility
–Transferee may take cleanup responsibility
•Use of Public Sale in disposing of contaminated property
–Has never been done at a NPL facility
–Regulators role where multiple bidders agree to take on cleanup responsibility?•It’s not easy!
•Negotiating the cost of remaining work to be done can be time consuming for DoD and transferee; negotiations may be time consuming for state and EPA also
•Changes in reuse plans can disrupt the path forward
•All parties involved will need to give and take to make the deal work
•Privatized cleanups need to recognize the need for community involvement
–CERCLA Section 117 requirements will still applyEXPLANATION OF SIGNIFICANT DIFFERENCE - CERCLA 117(c)
SEC. 118. HIGH PRIORITY FOR DRINKING WATER SUPPLIES.
For purposes of taking action under section 104 or 106 and listing facilities on the National Priorities List, the President shall give a high priority to facilities where the release of hazardous substances or pollutants or contaminants has resulted in the closing of drinking water wells or has contaminated a principal drinking water supply. [42 U.S.C. 9618]E-Update on Land Management - Department of Interior's “Christmas Present” to the American Public: Lockup More Federal Land Congressman Herger
During the “lame duck” session of the 111 th Congress, Democratic members of the U.S. Senate had their sights set on passing yet another omnibus public lands bill to designate thousands of acres of wilderness and enact other restrictions on federal land-use. Thankfully, this effort was met with strong resistance by Senate conservatives and was quickly dropped before Congress adjourned on December 22 nd . However, in what appears to be a consolation prize to the environmental activist community and its supporters, upon Congress' adjournment Department of the Interior Secretary Salazar released Secretarial Order #3310 , which instructs the federal Bureau of Land Management (BLM) to identify and designate BLM lands with wilderness characteristics as “Wild Lands.”
By designating “Wild Lands” through land-use planning, this order represents a deliberate end-run around the authority of Congress to designate lands as wilderness. While I have long opposed wilderness designations under any circumstances due to their extreme restrictions on beneficial and economic use of our federal lands, as well as the management restrictions that inhibit local efforts to address the growing threat of wildfires, I also believe that those decisions are best made through open debate and a vote by the Congress instead of through a backdoor process that is solely at the discretion of a federal agency. Moreover, as the Obama Administration continues to claim that it has no plans to designate national monuments in response to a leaked memo describing potential monument sites (including two within our Northern California Congressional District), this latest action further undermines their credibility. Instead, these statements simply reinforce the Administration's “lock it up” agenda with respect to multiple-use of federal lands. As the 112 th Congress convenes with an emboldened conservative majority, I will pursue whatever means possible to prevent this Secretarial Order or any other policy from further restricting recreation, forest management, mining, grazing, and other valuable uses of our public lands in Northern California.
H.R.1885
Latest Title: Private Property Rights Protection Act of 2009
Sponsor: Rep Waters, Maxine [CA-35] (introduced 4/2/2009) Cosponsors (26)
Latest Major Action: 5/26/2009 Referred to House subcommittee. Status: Referred to the Subcommittee on the Constitution, Civil Rights, and Civil Liberties.
All Information (except text) Text of Legislation CRS Summary Major Congressional Actions
All Congressional Actions
All Congressional Actions with Amendments
With links to Congressional Record pages, votes,reportsTitles Cosponsors (26) Committees Related Bills Amendments Related Committee Documents CBO Cost Estimates Subjects IN THE HOUSE OF REPRESENTATIVES
September 17, 2009
Mr. BROUN of Georgia (for himself, Mr. BARTLETT, Mr. BISHOP of Utah, Mr. SCALISE, Mr. SMITH of Texas, Mrs. BACHMANN, Mr. MARCHANT, Mr. GINGREY of Georgia, Mr. MANZULLO, Mr. SHADEGG, Mr. GOHMERT, Mr. CULBERSON, Mr. HERGER, Mr. MILLER of Florida, Mr. KINGSTON, Mr. WESTMORELAND, Mr. DEAL of Georgia, Mr. HALL of Texas, Mr. KING of Iowa, Mr. AKIN, Mr. GARRETT of New Jersey, Mr. BROWN of South Carolina, Mr. FRANKS of Arizona, Mr. PENCE, Mr. HENSARLING, Mr. FORBES, Mr. BOOZMAN, Mr. HARPER, Mr. ROE of Tennessee, Mr. LINDER, Mr. RYAN of Wisconsin, Mr. HELLER, Mr. WILSON of South Carolina, Mr. KLINE of Minnesota, Mr. CONAWAY, Mr. BURTON of Indiana, and Mr. PRICE of Georgia) submitted the following resolution; which was referred to the Committee on the Judiciary
Recognizing the importance of the property rights granted by the United States Constitution; affirming the duty of each Member of this body to support and defend such rights; and asserting that no public body should unlawfully obtain the property of any citizen of the United States for the benefit of another private citizen or corporation.
Whereas there is no greater expression of freedom and liberty than the defense of the God-given right of an individual to hold, possess, and use private property;
Whereas John Locke, the great political philosopher lauded by so many of the Founders of this Nation, stated, `the preservation of property [is the reason] for which men enter into society' and that `no [government] hath a right to take their [property], or any part of it, without their own consent, for this would be in effect to leave them no property at all.';
Whereas William Blackstone, whose lectures shaped and helped inspire the Declaration of Independence, Constitution, and primal laws of America, wrote: `So great moreover is the regard of the law for private property, that it will not authorize the least violation of it; no, not even for the general good of the whole community.';
Whereas Samuel Adams, the political writer, statesman, and signer of the Declaration of Independence, declared that our rights included: `First, a right to life; Secondly, to liberty; Thirdly, to property; together with the right to support and defend them.';
Whereas John Adams, diplomat, signer of the Declaration of Independence, and President of the United States, firmly proclaimed: `The moment the idea is admitted into society, that property is not as sacred as the laws of God, and that there is not a force of law and public justice to protect it, anarchy and tyranny commence.' and that `Property is surely a right of mankind as real as liberty.';
Whereas John Adams also affirmed: `Property must be secured or liberty cannot exist.';
Whereas James Madison, author of the Constitution, and President of the United States, announced: `Government is instituted to protect property. . . . This being the end of government, that alone is a just government, which impartially secures to every man, whatever is his own.';
Whereas John Dickinson, signer of the Constitution, stated: `Let these truths be indelibly impressed on our minds: (1) that we cannot be happy without being free; (2) that we cannot be free, without being secure in our property; (3) that we cannot be secure in our property, if, without our consent, others may, as by right, take it away.';
Whereas Thomas Jefferson, the mind behind the Declaration of Independence, and President of the United States, wrote: `The true foundation of republican government is the equal right of every citizen in his person and property and in their management.' and `The first foundations of the social compact would be broken up were we definitely to refuse to its members the protection of their persons and property while in their lawful pursuits.';
Whereas Thomas Jefferson also affirmed: `Charged with the care of the general interest of the nation, and among these with the preservation of their lands from intrusion, I exercised, on their behalf, a right given by nature to all men, individual or associated, that of rescuing their own property wrongfully taken.';
Whereas Noah Webster, the `Father of American Scholarship and Education', stated: `It is admitted that all men have an equal right to the enjoyment of their life, property and personal security; and it is the duty as it is the object, of government to protect every man in this enjoyment.';
Whereas John Jay opined: `No power on earth has a right to take our property from us without our consent.'; and
Whereas Fisher Ames, framer of the Bill of Rights and Massachusetts Representative to the first four Congresses, said: `The chief duty and care of all governments is to protect the rights of property.': Now, therefore, be it
Resolved, That--
(1) these ideals did motivate and continue to justify the drafting of article 1, section 8 of the United States Constitution, which states that it is the responsibility of Congress `to promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries', and the writing of the 5th amendment to our Constitution, which clearly states: `No person shall be . . . deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.';
(2) since every Member of this body has sworn or affirmed to both support and defend the entire Constitution and `to bear true faith and allegiance to the same', any act not in accordance with that oath is both a betrayal of the United States Constitution and a violation of Federal law; and
(3) in the constant pursuit of a more perfect union, all citizens of the United States should remain secure in the possession of private property, and no court, legislature, or executive shall, by predatory law or tyrannical force, obtain the property of any citizen of the United States for the benefit of another private citizen or corporation.
The term ‘‘Indian tribe’’ means any Indian tribe, band, nation, or other organized group or community. 1 The words ‘‘or the Indian tribe’’ were inserted after the words ‘‘State Government’’ in the previous version of this sentence, but the same law also removed the sentence containing those words and replaced it with this new sentence which does not contain the words ‘‘State Government’’. See sections 107(d)(2) and 207(c)(2)(D) of the Superfund Amendments and Reauthorization Act of 1986.
in accordance with section 553 of title 5, United States Code, the President shall by rule promulgate amendments to the hazard ranking system in effect on September 1, 1984. Such amendments shall assure, to the maximum extent feasible, that the hazard ranking system accurately assesses the relative degree of risk to human health and the environment posed by sites and facilities subject to review.
$1 Billion Settlement Reached at Iron Mountain Mine Site
When EPA, in conjunction with the State, has determined that all appropriate response actions have been implemented and no further remedial measures are necessary, a Notice of Final Action to Delete is published in the Federal Register. If EPA receives no significant adverse or critical comments from the public within the 30- day comment period, the site is deleted from the NPL. Reform of the program is ongoing. The reforms are being refined and improved – and their impact is becoming broader. EPA is
consistently addressing stakeholders’ criticisms and developing new ways to make Superfund work faster, fairer, and more efficiently. EPA believes that communities must have meaningful opportunities for involvement early in the cleanup process and should stay involved throughout site cleanup. Some of the ways that this is done is through Community Advisory Groups (CAGs) and Technical Assistance Grants (TAGs).
A CAG is a committee of citizens affected by a hazardous waste site. CAGs are made up of representatives with diverse community interests and provide a public forum for community members to present and discuss their needs and concerns regarding decision-making at a site. Many Superfund sites present communities with complex issues
often requiring expertise in chemistry, engineering, geology, toxicology, and law. A TAG is a grant of up to $50,000 for community groups to hire the technical advisers needed to help.Developing Partnerships
To achieve success and promote public participation, EPA works with communities, local businesses, large corporations, and State, local, and Tribal governments in the form of partnerships. EPA, through its State and Tribal Enhanced Role Initiative, developed a comprehensive plan to implement equitable sharing of Superfund program responsibilities with interested and capable States and Tribes, resulting in quicker cleanup of more sites. In Mississippi, EPA has entered into a pilot program partnering with a band of Choctaw Native Americans. The pilot supports Tribal efforts in building a greater Superfund capacity with respect to emergency preparedness and response. Through the pilot, the Tribe will learn how to effectively respond to oil and hazardous substance spills and perform environmental assessments at potential waste sites on Tribal lands.Implementing Technological Innovations
SARA established a preference for treatment of hazardous wastes and created a demand for alternatives to land disposal.
New innovative treatment technologies grew from this demand to provide more permanent, less costly solutions, for dealing with contaminated materials.
The Superfund Innovative Technology Evaluation (SITE) Program was established to meet this increased demand for alternative technologies.
The SITE Program has provided demonstrations of new technologies at particular sites, resulting in average cost savings of over 70 percent per site. The total cost savings for innovative treatment as opposed to conventional treatment is estimated at $2.1 billion.EPA also promotes the research and development of innovative technologies by sharing the risk with PRPs who select remedies employing low-cost, high performance technologies. EPA will “underwrite” these innovative approaches by agreeing to reimburse up to 50 percent of the cost if the innovative remedy fails and a subsequent remedy is required.
EPA has taken significant steps to reduce litigation, promote earlier settlements, and optimize fairness concerns. By streamlining the enforcement process, EPA is able to reach settlement more quickly on terms that are considered more fair to the responsible parties. This streamlined process allows both EPA and the PRPs to move quickly to clean up sites, and to increase the pace at which contaminated properties are returned to productive use. Since 1992, responsible parties have performed over 70 percent of the new cleanup work at Superfund sites. And over the life of the Superfund program, EPA has reached settlements with private parties valued at over $18 billion.
Removing Legal Barriers and Encouraging Economic Redevelopment
‘‘Audit Policy.’’ The purpose of this Policy is to enhance protection of human health and the environment by encouraging regulated entities to voluntarily discover, promptly disclose and expeditiously correct violations of Federal environmental requirements. The revised Policy was developed in close consultation with the U.S. Department of Justice (DOJ), States, public interest groups and the regulated community.
The Policy includes important safeguards to deter violations and protect public health and the environment. For example, the Policy requires entities to act to prevent recurrence of violations and to remedy any environmental harm that may have occurred. Repeat violations, those that result in actual harm to the environment, and those that may present an imminent and substantial endangerment are not eligible for relief under this Policy. Companies will not be allowed to gain an economic advantage over their competitors by delaying their investment in compliance. And entities remain criminally liable for violations that result from conscious disregard of or willful blindness to their obligations under the law, and individuals remain liable for their criminal misconduct.
When EPA issued the 1995 Audit Policy, the Agency committed to evaluate the Policy after three years. The Agency initiated this evaluation in the Spring of 1998 and published its preliminary results in the Federal Register on May 17, 1999 (64 FR 26745). The evaluation consisted of the following components:
1 An internal survey of EPA staff who process disclosures and handle enforcement cases under the 1995 Audit Policy;
2 A survey of regulated entities that used the 1995 Policy to disclose violations;
3 A series of meetings and conference calls with representatives from industry, environmental organizations, and States;
4 Focused stakeholder discussions on the Audit Policy at two public conferences co-sponsored by EPA’s Office of Enforcement and Compliance Assurance (OECA) and the Vice President’s National Partnership for Reinventing Government, entitled ‘‘Protecting Public Health and the Environment through Innovative Approaches to Compliance’’;40658 - 40673 Federal Register / Vol. 48, No. 175 / Thursday, September 8, 1983 / Rules and Regulations List of Subjects in 40 CFR Part 300
Air pollution control, Chemicals, Hazardous materials, Intergovernmental relations, Natural resources, Oil pollution, Reporting and recordkeeping requirements, Super fund, Waste treatment and disposal, Water pollution control, Water supply.
PART 300 - [AMENDED] Part 300, Title 40 of the Code of Federal Regulations is hereby amended by adding a new Appendix B, to read as follows:
BILLING CODE 6560-50-M
Appendix B - National Priorities List, Group 2 09 CA Iron Mountain Mine Redding R = FEDERAL AND STATE RESPONSE; Last updated on October 01, 2010
Voluntary or Negotiated Response
Sites are included in this category if private parties are taking response actions pursuant to a consent order or agreement to which EPA is a party. Voluntary or negotiated cleanup may include actions taken pursuant to consent orders reached after EPA has commenced an enforcement action. This category of response may include remedial investigations, feasibility studies, and other preliminary work, as well as actual cleanup.
Several commenters were concerned that this category did not adequately reflect voluntary response efforts undertaken without formal agreements with EPA. However, EPA studies have shown that many of the response actions undertaken by private parties outside the sanction of EPA consent agreements have not been successful. Furthermore, some private parties have represented routine maintenance or waste management activities as response actions, thereby leading to the conclusion that only after a thorough technical review can the Agency describe actions by private parties as "responses". Thus, EPA believes that to describe actions taken outside consent orders as "response" would in many instances be misleading to the public as EPA cannot assure the public that the actions are appropriate, adequate, consistent with the NCP, and are being fully implemented. Therefore, the Agency encourages any responsible parties who are undertaking voluntary response actions at NPL sites to contact the Agency to negotiate consent agreements.
This is not intended to preclude responsible parties from taking voluntary response actions outside of a consent agreement. However, in order for the site to be deleted or to be noted in the voluntary or negotiated response category, EPA must still sanction the completed cleanup. If the remedial action is not fully implemented or is not consistent with the NCP, the responsible party may be subject to an enforcement action. Therefore, most responsible parties may find it in their best interest to negotiate a consent agreement.
Federal and State Response
The Federal and State Response category includes sites at which EPA or State agencies have commenced or completed removal or remedial actions under CERCLA, including, remedial investigations and feasibility studies (see NCP, § 300.68 (f)-(i), 47 FR 31217, July 16, 1982). For purposes of this categorization, EPA considers the response action to have commenced when EPA has obligated funds. For some of the sites in this category EPA may follow remedial investigations and feasibility studies with enforcement actions, at which time the site status would change to "Federal or State Enforcement."
Federal or State Enforcement
This category includes sites where the United States or the State has filed a civil complaint or issued an administrative order. It also includes sites at which a Federal or State court has mandated some form of non-consensual response action following a judicial proceeding. It may not, however, include all sites at which preliminary enforcement activities are underway. A number of sites on the NPL are the subject of enforcement investigation or have been formally referred to the Department of Justice for enforcement action. EPA's policy is not to release information concerning a possible enforcement action until a lawsuit has been filed. Accordingly, these sites have not been included in the enforcement category. [FR Doc. 83-24538 Filed 9-7-83; 8:45 am]
Federal Environmental Executive to Speak
Meeting attendees will also hear Joe Cascio, U.S. Federal Environmental Executive, illustrate the dramatic impact of the federal government's consumption of goods and services and how that purchasing power can be harnessed to create positive environmental change. For example, the government:
- is the country's largest buyer/user of energy ($3.5 billion/year)
- accounts for 7% of the world's information technology purchases
- controls a real estate portfolio of more than 1.2 million assets, including more than 550,000 buildings
“Champions of Environmental Leadership and Green Government”
Participating Federal Green Challenge agencies, entities and facilities include: the U.S. Environmental Protection Agency; General Services Administration, U.S Army Corps. of Engineers; the National Park Service; Bureau of Land Management; the U.S. Department of Housing and Urban Development, the Federal Aviation Administration; Social Security Administration; National Oceanic and Atmospheric Administration, U.S. Coast Guard; U.S. Fish & Wildlife Service; U.S. Department of Agriculture (Forest Service, National Resource Conservation Service, Rural Development); U.S. Department of Transportation (Federal Transit Administration) and the U.S. Geological Survey, the Bonneville Power Administration and the U.S. Army (Fort Lewis, WA).Institutional Controls and Transfer of Real Property under CERCLA Section 120(h)(3)(A), (B) or (C)
PDF Version (9 pp, 64K, About PDF )
On this page
- Summary
- 1.0 Background of the Guidance
- 2.0 Purpose and Scope of the Guidance
- 3.0 Applicability of the Guidance
- 4.0 General Guidelines for Institutional Controls
- 5.0 Specific Guidelines for Institutional Controls
- 6.0 Documentation of Institutional Controls
- 7.0 "Operating Properly and Successfully Demonstrations"
- 8.0 Coordination with State, Local, and Tribal Governments
- 9.0 Executive Order 13132, "Federalism"
- 10.0 Conclusion
Summary
This document provides guidance to the U.S. Environmental Protection Agency (EPA) on the exercise of EPA's discretion under CERCLA section 120(h)(3)(A),(B), or (C) when EPA is called upon to evaluate institutional controls as part of a remedial action. also informs the public and the regulated community on how EPA intends to exercise its discretion in this context. designed to implement the President's policy of promoting, encouraging, and facilitating the redevelopment and reuse of closing military bases while continuing to protect human health and the environment. ay change this guidance in the future, as appropriate.
EPA's evaluation of federal property transfers is contingent on the receipt of information establishing that the institutional controls will be effective in preventing human or environmental exposure to hazardous substances that remain on site above levels which allow unrestricted use. guidance requires that the transferring federal agency demonstrate prior to transfer that certain procedures are in place, or will be put in place, that will provide EPA with sufficient basis for determining that the institutional controls will perform as expected in the future. Such procedures, which are listed in Section 5.0 below, include the means for:
- Monitoring the institutional controls' effectiveness and integrity.
- Reporting the results of such monitoring, including notice of any violation or failure of the controls.
- Enforcing the institutional controls should such a violation or failure occur.
1.0 Background of the Guidance
What are institutional controls?
Institutional controls are nonengineering measures designed to prevent or limit exposure to hazardous substances left in place at a site, or assure effectiveness of the chosen remedy. Institutional controls are usually, but not always, legal controls, such as easements, restrictive covenants, and zoning ordinances.
What is the historical basis for this guidance?
The Department of Defense's (DoD) base closure program and the Department of Energy's reuse and reindustrialization of surplus facilities are just two examples of programs where federal properties with hazardous substances remaining on site are being transferred outside of federal control. These property transfers will often require the implementation of institutional controls to ensure that human health and the environment are protected. Such property transfers highlight the need to ensure that institutional controls are clearly defined, oversight and monitoring roles are understood, and appropriate enforcement mechanisms are in place to ensure that human health and the environment are protected.
What is the statutory basis for this guidance?
Section 120(h)(3)(A) of CERCLA requires that a federal agency transferring real property (hereafter, transferring federal agency - by "transferring federal agency" EPA means the federal agency responsible for cleanup) to a nonfederal entity include a covenant in the deed of transfer warranting that all remedial action necessary to protect human health and the environment has been taken prior to the date of transfer with respect to any hazardous substances remaining on the property. In addition, CERCLA section 120(h)(3)(B) requires, under certain circumstances, that a federal agency demonstrate to the EPA Administrator that a remedy is "operating properly and successfully" before the federal agency can provide the "all remedial action has been taken" covenant. Under CERCLA section 120(h)(3)(C), the covenant can be deferred so that property may be transferred before all necessary remedial actions have been taken if regulators agree that the property is suitable for the intended use and the intended use is consistent with protection of human health and the environment.
2.0 Purpose and Scope of the Guidance
What is the purpose of this guidance?
This guidance establishes criteria for EPA to evaluate the effectiveness of institutional controls that are part of a remedy or are a sole remedy for property to be transferred subject to CERCLA section 120(h)(3)(A),(B), or (C). Accordingly, this institutional control guidance provides guidelines applicable to property transfers in general and, more specifically, to support "operating properly and successfully determinations" under CERCLA section 120(h)(3)(B).
This guidance does not substitute for EPA regulations, nor is it a regulation itself. Thus, it cannot impose legally binding requirements on EPA, states, or the regulated community, and may not apply to a particular situation based upon the circumstances.
What does the guidance not address?
This guidance does not address the issue of whether an institutional control is appropriate for a particular site. That decision is made as part of the remedy selection process. If, however, it becomes clear that the criteria set forth in this guidance cannot be met, the scope, effectiveness, or even the use of an institutional control should be reconsidered. This guidance does not change EPA's preference for active and permanent remedies as stated in CERCLA section 121 (See also 55 FR, page 8706 [March 8, 1990]), or any of the requirements for selecting remedies in CERCLA or the NCP (See CERCLA section 121 and 40 CFR 300.430).
3.0 Applicability of the Guidance
Under what circumstances does the guidance apply?
The guidance applies in the following situations:
- When EPA approves "operating properly and successfully demonstrations" for ongoing remedies under CERCLA section 120(h)(3)(B). (See Section 7.0 for more information.)
- When EPA evaluates a federal agency's determination under 120(h)(3)(A) that all remedial actions have been taken, such as when commenting on a "finding of suitability of transfer," in the consultative process established by DoD.
- When EPA approves a Covenant Deferral Request under 120 (h)(3)(C) for an early transfer (For more information, see EPA Guidance on the Transfer of Federal Property by Deed Before All Necessary Remedial Action Has Been Taken Pursuant to CERCLA Section 120(h)(3), June 16, 1998).
4.0 General Guidelines for Institutional Controls
Who is responsible for implementing institutional controls?
The decision to clean up a site to less than unrestricted use or to otherwise restrict the use of the site must be balanced by the assurance that a system will be in place to monitor and enforce any required institutional controls. This assurance is necessary to ensure the long term effectiveness and permanence of the remedy (For more information, see 55 FR section 300.430 (e)(9) (iii)(C)(2)). In EPA's view, the transferring federal agency is responsible for ensuring that the institutional controls are implemented. Even if implementation of the institutional controls is delegated in the transfer documents, the ultimate responsibility for monitoring, maintaining, and enforcing the institutional controls remains with the federal agency responsible for cleanup.
The transferring agency should clearly identify and define the institutional controls and set forth their purpose and method of implementation in a Record of Decision (ROD) or other decision document. Generally referring to or identifying an institutional control in a ROD is only one step in achieving the objective of an institutional control. An institutional control must be implemented in much the same way as an engineered remedy described in a ROD is designed and constructed.
5.0 Specific Guidelines for Institutional Controls
What information does EPA need?
EPA's review of federal property transfers requiring institutional controls should focus on whether the institutional controls, when in place, will be reliable and will remain in place after initiation of operation and maintenance. The information should document that the transferring federal agency will ensure that appropriate actions will be taken if a remedy is compromised. EPA should work with the transferring agency to obtain and evaluate the information described below as a precondition for EPA's support of federal property transfers under 120 (h)(3)(A),(B) or (C). At a minimum, EPA should expect to obtain the following information from the transferring federal agency:
A legal description of the real property or other geographical information sufficient to clearly identify the property where the institutional controls will be implemented.
A description of the anticipated future use(s) for the parcel.
Identification of the residual hazard or risk present on the parcel requiring the institutional control. In addition, the specific activities that are prohibited on the parcel should be identified, including prohibitions against certain land use activities that might affect the integrity of the remedy, such as well drilling and construction.
The specific institutional control language in substantially the same form as it will appear in the transfer document and a description of the legal authority for the implementation of these controls, such as state statutes, regulations, ordinances or other legal authority including case law.
A statement from the transferring federal agency that, in their best professional judgement, the institutional controls conform or will conform with the legal requirements of the applicable state and/or local jurisdiction. This statement should also explain how the institutional controls will be enforceable against future transferees and successors. Compliance with the institutional control should be enforceable against whoever might have ownership or control of the property. For Base Realignment and Closure properties, the majority of the transfers which EPA reviews, this statement could be included in a memorandum transmitting the final institutional control language for the deed of transfer from a DoD component attorney to the Commanding Officer. The memorandum could state that, based upon a review of the particular state's real estate laws, the component attorney believes that the institutional control is binding in perpetuity and enforceable in state court, and if it is not, he/she will revisit the institutional control or the entire remedy decision. This memorandum could be included in DoD's "operating properly and successfully demonstration" letter to EPA (This is consistent with DoD's own requirement in their guidance Responsibility for Additional Environmental Cleanup after Transfer of Real Property, which states "The DoD component disposal agent will also ensure that appropriate institutional controls and other implementation and enforcement mechanisms, appropriate to the jurisdiction where the property is located, are either in place prior to the transfer or will be put in place by the transferee.").
A description of who will be responsible for monitoring the integrity and effectiveness of the institutional controls and the frequency of monitoring. If this is a party other than the transferring federal agency, the transferring federal agency should provide documentation that the party accepts or will accept the responsibility. The transferring agency should also describe which specific party or office will be responsible for overseeing the institutional controls. The transferring agency might, for example, provide details of the types of assistance that other government agencies will provide in preventing the drilling of drinking water wells as well as the frequency of monitoring to ensure that drilling is not occurring.
A description of the procedure that will be used to report violations or failures of the institutional controls to the appropriate EPA and/or state regulator, local or tribal government, and the designated party or entity responsible for reporting.
A description of the procedure that will be used to enforce against violations of an institutional control, an identification of the party or parties that will be responsible for such enforcement, and a description of the legal authority for this enforcement procedure, such as state statutes, regulations, ordinances, or other legal authority including case law.
Assurance that the transferring federal agency will verify maintenance of the institutional control on a periodic basis unless other arrangements have been made. In the latter case, where another party is performing the monitoring function, that party should provide such assurances. In addition, the transferring federal agency must commit to verify the reports on a regular basis in this case.
A description of the recording requirements in the jurisdiction where the site is located. The transferring agency also must describe the methods it will use to provide notice of the institutional controls at the site to subsequent owners or lessees.
6.0 Documentation of Institutional Controls
What remedy selection documentation should EPA expect from the transferring federal agency?
EPA may base its evaluation of the institutional control on information found in the following remedy selection, remedy design, or other documents:
- RODs that contain sufficient information regarding institutional controls.
- Other post-ROD documents that are completed following the selection of a remedy, such as a Remedial Design, Remedial Action Plan, or Operation and Maintenance Plan. This applies in cases where the ROD requires the use of an institutional control but fails to provide sufficient information regarding purpose, implementation, or enforcement (such as in older RODs).
What if existing documents do not provide sufficient information on institutional controls?
If none of the documents mentioned above provide sufficient detail on the implementation of the institutional control, the transferring federal agency should develop an "Institutional Control Implementation Plan" (ICIP) to assist EPA in evaluating the effectiveness of the institutional control. The ICIP should adhere to the following conditions:
- The ICIP should be a comprehensive strategy for the implementation of institutional controls.
- The ICIP should identify the parties responsible for implementing and monitoring the institutional controls.
- The ICIP should document that procedures adequate for effectively implementing and monitoring the institutional control are in place or will be put in place.
- The level of detail in the ICIP should be commensurate with the risk at the site. Depending on the residual risk posed by the site, for instance, EPA may require that the plan be agreed upon by both EPA and state regulators and/or that the plan be structured as an agreement among all the parties involved via a Memorandum of Agreement, amendment of a ROD or Federal Facilities Agreement, or an operation and maintenance plan.
7.0 "Operating Properly and Successfully Demonstrations"
How does this guidance apply to demonstrations that remedial actions are "operating properly and successfully"?
In August 1996, EPA issued guidance to EPA's Regional Federal Facility programs describing the approach EPA should use in evaluating a federal agency's demonstration that a remedial action is "operating properly and successfully" as a precondition to the deed transfer of federally-owned property, as required in CERCLA section 120(h)(3)(B). In that guidance, entitled Guidance for Evaluation of Federal Agency Demonstrations that Remedial Actions are Operating Properly and Successfully under CERCLA Section 120(h)(3), EPA directed Regional decision-makers to consider a number of factors in evaluating an "operating properly and successfully demonstration" of ongoing remedial actions, including institutional controls. With respect to institutional controls, EPA stated generally that:
"If the integrity of the remedial action depends on institutional controls (e.g., deed restrictions, well drilling prohibitions) these controls should be clearly identified and agreed upon."
Additionally, under the more specific criteria that must be demonstrated for groundwater remedies, the 1996 guidance included "appropriate institutional controls are in place" as a criterion, but did not describe how federal agencies should meet this requirement. For ongoing remedial actions involving institutional controls and for which EPA must evaluate a transferring federal agency's demonstration that a remedial action is operating properly and successfully, the information listed in Section 5.0 of this guidance should be submitted as part of the data requirements for the remedial action.
What documentation does EPA need to evaluate "operating properly and successfully demonstrations"?
The following documentation is needed for all "operating properly and successfully demonstrations":
- The transferring federal agency should research, assemble, and analyze the information to demonstrate to EPA that the remedy is operating properly and successfully.
- The cover letter forwarding the information to EPA should request EPA's approval of the demonstration and include a statement by a Commanding Officer or senior official similar to the following:
I certify that the information, data, and analysis provided are true and accurate based on a thorough review. To the best of my knowledge, the remedy is operating properly and successfully, in accordance with CERCLA 120(h)(3)(B).Generally, where institutional controls are a component of a remedy, EPA should not consider "operating properly and successfully demonstrations" that are not consistent with the requirements described above in Sections 5.0 and 6.0 .
When should information for "operating properly and successfully" demonstrations be provided?
EPA should encourage federal agencies preparing "operating properly and successfully demonstrations" to work closely with EPA in planning the scope and presentation of the documentation. A minimum of 45 days is needed for EPA to review all "operating properly and successfully demonstrations."
8.0 Coordination with State, Local, and Tribal Governments
What organizations should be involved in the development of institutional controls?
Successful management of institutional controls is critical to protecting the human health and environment of the communities where federal properties are located. For this reason, EPA encourages early communication and cooperation among federal, state, local, and tribal governments in the development of institutional controls and implementation plans. Where the viability of the institutional control is contingent on state property law or where state institutional control-related laws may apply (e.g., documentation of institutional controls in a state registry), it is particularly important to coordinate with the state. As a matter of policy, therefore, EPA will forward all institutional control information received for federal property transfers to the appropriate state, local, and tribal governments. EPA also will solicit comments from these organizations as appropriate.
9.0 Executive Order 13132, "Federalism"
Does this Guidance have Federalism Implications?
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 and regulatory policies 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 guidance does not have federalism implications. This guidance aids EPA in implementing its responsibilities under CERCLA section 120(h)(3)(A), (B) or (C). This guidance also encourages Federal agencies to coordinate the development and implementation of institutional controls with state, local and tribal governments. Neither such coordination, nor any other aspect of this guidance, however, will 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. Thus, the requirements of the Executive Order do not apply to this guidance.
10.0 Conclusion
How will EPA evaluate institutional controls?
EPA prefers to work with federal agencies early in the remedy selection process to assure full and consistent consideration of the long term effectiveness of the institutional controls. For this reason, it is imperative that these discussions begin prior to remedy selection. Although the federal government has had less experience designing and implementing institutional controls than engineered remedies, EPA will use its professional judgement in evaluating institutional control plans, as it does in evaluating other aspects of remedies and operations and maintenance. The basis for that judgment may vary depending on the site characteristics. EPA understands the importance of rapid reuse to the surrounding communities and is committed to supporting this effort while maintaining the Agency's primary goal of protecting human health and the environment.
EPA crackdown on mountaintop removal named among environmental issues to watch in 2011
THE WARNING
US CFTC needs "Plan B" for costly swaps rules-INTERVIEW-UPDATE 1
FINANCIAL-REGULATION/OMALIA (INTERVIEW)(UPDATE 1)
* CFTC needs plan in case it doesn't get new funding
* Reforms will cost more, take longer than imagined
* Could outsource some tasks to private regulators
* Should restructure to focus on data, add technology
* "Further negotiations" needed on position limits (Adds additional information and background starting in 16th paragraph)
By Roberta Rampton
WASHINGTON, Jan 3 (Reuters) - The U.S. futures regulator needs to consider a "Plan B" on how it will police the $600 trillion swaps market if Congress fails to deliver a 50 percent increase in its budget, one of its top officials said on Monday.
The Commodity Futures Trading Commission has been counting on getting a $92 million budget hike for 2011 -- and even more in 2012 -- to take on new responsibilities to oversee the over-the-counter market in the bank reform law, but may come up short as lawmakers look to slash government spending.
"We may not get more dollars, so what are we going to do next? What's our Plan B?" said Scott O'Malia, a Republican commissioner on the CFTC, in an interview with Reuters.
His comments were among the most frank acknowledgments from top CFTC officials that the agency faces an uphill battle implementing reforms without new funding.
O'Malia said he didn't have the answers, but said CFTC staff were beginning to think about options, including asking private industry regulators like the National Futures Association to shoulder more responsibilities.
It's an idea that has been raised by other CFTC commissioners as one way to help the chronically underfunded agency cope with the dramatic overhaul of its role under the Dodd-Frank financial law.
Republican lawmakers, who now control the House of Representatives and increased their numbers in the Senate, have said they want to review regulatory expansion plans and slow reforms passed by Democrats last year.
REFORMS "MORE EXPENSIVE THAN WE IMAGINE"
Agency staff have been working nights and weekends to meet the July deadlines to finalize CFTC rules that were set out in the Dodd-Frank law, O'Malia said.
"If Congress wants to change that (deadline), I'm sure everybody would breathe somewhat of a sigh of relief, and it certainly would allow us to take a little slower approach to this," he said.
There has been no total price tag put on the CFTC's share of Dodd-Frank reforms, which will require most types of over-the-counter derivatives to trade on exchanges or new swap execution facilities, pass through clearinghouses, and be recorded in new swap data repositories, O'Malia said.
"I think it's more expensive than we imagine, not only to the commission but to the industry, and it's going to take a lot longer than we expect," O'Malia said.
The agency's technology advisory committee, which O'Malia chairs, will discuss the costs and needs of the new market structure required to report on and track swaps trades from inception through conclusion at a Jan. 27 meeting, he said.
O'Malia is pushing the CFTC to restructure to create a new "Office of Market Data Collection and Analysis," which he said could require more spending on technology even while lawmakers push to rein in staff expansion plans.
"I think the mortgage for technology is a cheaper bill to pay than if we were going to hire many more people," he said.
"I think we need to be very careful about our hiring and where we're spending money right now," O'Malia said.
CFTC ROUNDS THE CORNER IN RULE-MAKING
The CFTC had aimed to unveil the first draft of all its rules by the end of the year, a self-imposed deadline it met for all but a handful of rules, including capital and margin requirements for swap dealers and major swap participants.
Also in the wings are its controversial curbs on speculative trades in commodity markets. The CFTC proposed a rule on Dec. 16, but commissioners have not yet agreed on whether to issue the plan for public comment.
"I think there needs to be some further negotiations and discussion among the commissioners," O'Malia said, declining to comment further on the position limit rule.
The agency aims to finalize its first major rule for the swaps market -- ownership caps and governance rules for clearinghouses, exchanges and swap execution facilities -- at its first hearing of the year, slated for Jan. 13, he said.
DISRUPTIVE TRADING A TOUGH NUT
The CFTC also needs to work on giving traders clearer guidance on three trading practices banned in the Dodd-Frank law as "disruptive," O'Malia said.
The banned practices include "banging the close" -- acquiring a big position and then offsetting it before trading ends -- and "spoofing" -- when a trader makes bids or offers but cancels them before execution.
"Providing the certainty and nailing what is inappropriate behavior is going to be very difficult," he said, adding he doubted it was even possible.
"I think we're going to be, unfortunately, too vague."
The CFTC is also looking at whether to rein in high-frequency traders using computer-driven algorithms.
That task took on more profile after the May 6 "flash crash," when markets briefly plunged before recovering. Some analysts argue algorithms contributed to the volatility, although a government review did not blame high-frequency traders for the crash.
A panel of experts examining the flash crash is slated to make recommendations to the CFTC and Securities and Exchange Commission on Jan. 26, O'Malia said.
He said he thought the CFTC should focus on recommending "best practices" to preventing high-frequency errors and runaway algorithms rather than trying to ban more types of trades.
"We're having a hard enough time defining the current (disruptive) practices. Expanding that would not help the market," O'Malia said. (Editing by Walter Bagley)
(c) Copyright Thomson Reuters 2011. Click For Restrictions. http://about.reuters.com/fulllegal.asp
The Community Guide to Early Transfer
Sustaining the health and welfare of local communities is the starting place for sustaining the health and welfare of the world. Here and everywhere we are all dependent upon a quality environment and availability of needed resources to preserve our quality of life — for all citizens
How Current is This?
New Report: The Construction Nanomaterials Revolution
Impact: Nanotechnology July 30, 2010Of the many ongoing technology developments, it's arguable that nanotechnology will have the most immediate, visible, and continuing impact. Nano-this and nano-that have already sprung up in the English vocabulary like mushrooms after rain and marketing-speak has long since incorporated the benefits of NEW: With Nano-whatever. Barely a week goes by without an announcement of some advancement in nanotechnology and the majority of these announcements are couched in their relationship to a practical application. So it should not be surprising even to people with only passing knowledge of nanotechnology that one of the areas about to be changed (if not revolutionized) is the construction industry – in particular the enhancement of construction materials by the incorporation of manufactured nanomaterials (MNMs).
Whether you're following the development or just interested in the possible impact of nanotechnology, a new report published by the American Chemical Society (ACS) in the journal ACS Nano , titled Nanomaterials in the Construction Industry: A Review of Their Applications and Environmental Health and Safety Considerations is a comprehensive look at the future of nanotechnology in the materials used by the construction industry AND their potential impact on health and the environment. A lengthy abstract is available at the above URL; the full text of the report requires subscription or purchase.
The report was prepared by scientists at Rice University (Texas, USA) and the University of California Los Angeles (USA). Its combination of a review of applications with a realistic approach to potential problems makes this report a standout. While the language is at times technical (the target audience is for people familiar with the field), it's easy to understand the overall picture:
Nanomaterials will be extensively incorporated in construction materials. Nanomaterials will make them stronger, lighter, more flexible, and endow some materials with unusual or even extraordinary properties. Overall the application of nanomaterials provides a major opportunity for more energy conserving and environmentally friendly materials – as long as that is made a top priority.
Examples of uses for manufactured nanomaterials (MNMs)
[Taken from Table 1 of Nanomaterials in the Construction Industry ]Carbon Nanotubes
Concrete Mechanical durability, crack prevention
Ceramics Enhanced mechanical and thermal properties
MEMS Real-time structural health monitoring
Solar Cell Effective electron mediation
Silicon Dioxide Nanoparticles
Concrete Reinforcement in mechanical strength
Ceramics Coolant, light transmission, fire resistance
Windows Flame proofing, anti-reflection
Titanium Dioxide Nanoparticles
Cement Rapid hydration, increased degree of hydration, self-cleaning
Windows Superhydrophilicity, anti-fogging, fouling-resistance
Solar Cell Non-utility electricity generation
Iron Oxide Nanoparticles
Concrete Increased compressive strength, abrasion resistance
Copper Nanoparticles
Steel Weldability, corrosion resistance, formability
Silver Nanoparticles
Coating/Paints Biocidal activitySource: American Chemical Society
On the other hand, nanomaterials either in raw form or in the combination with traditional construction materials will become prevalent world-wide. Insofar as these materials have toxic or environmentally damaging properties – and we already know that some of them do – this new exposure at massive scale will probably create dangerous situations (or worse).
Some MNMs could be considered as potential emerging pollutants because their environmental release is currently not regulated despite growing concerns about the associated risks to public and environmental health. Once in the environment, MNMs may undergo diverse physical, chemical, and biological transformations that change their properties, impact, and fate. Thus, a holistic MNM lifecycle exposure profiling is essential to evaluate potential impacts to human and ecosystem health, as well as to mitigate unnecessary risks.
The report stresses the importance of understanding the health and environmental impact of using nanomaterials in construction from all points in the ‘life cycle' of the materials:
- Creation and transport of the raw (nano)components
- The manufacturing process
- Distribution and application in the construction industry
- Long-term degradation
- Final demolition and disposal.Without taking into to account the dangers present at each point along the cycle (and they will vary considerably among the different materials), we will not have a profile accurate enough to provide guidance for regulation, prevention, troubleshooting and emergency procedures.
The Superfund Redevelopment Initiative (SRI) was announced in 1999, but the effort to return Superfund sites to productive use has been in place for a number of years. Building on the Superfund Reforms and the Brownfields Initiative, EPA has put in place a coordinated national program to make certain that communities have the tools and information needed to realize the potential of reusing Superfund sites.
Fulfilling the Promise of Earth Day
“We all have a stake in the quality of our water,” said EPA Regional Administrator Richard E. Greene. “Ensuring the sustainability of our nation's waters is not just an EPA challenge -- it is everyone's challenge.
Personal Sustainability Project Challenge, which coincides with Hispanic Heritage Month and encourages people to select an action they are willing to commit to improve their efforts towards sustainability.Section 427 of Public Law 106–74 (113 Stat. 1095) added the phrase ‘‘through seizure or otherwise in connection with law enforcement activity’’ before ‘‘involuntary’’ the first place it appears. It was inserted after ‘‘involuntarily’’ as the probable intent of Congress.
Sec. 427. Law Enforcement Agencies Not Included as Owner or Operator. Section 101(20)(D) of the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (42 U.S.C. 9601(20)(D)) is amended by inserting ``through seizure
(D) The term ``owner or operator'' does not include a unit of State or local government which acquired ownership or control involuntarily through bankruptcy, tax delinquency, abandonment, or other circumstances in which the government involuntarily acquires title by virtue of its function as sovereign. The exclusion provided under this paragraph shall not apply to any State or local government which has caused or contributed to the release or threatened release of a hazardous substance from the facility, and such a State or local government shall be subject to the provisions of this chapter in the same manner and to the same extent, both procedurally and substantively, as any nongovernmental entity, including liability under section 9607 of this title.
Sec. 431. Promulgation <<NOTE: Reports.>> of Stormwater Regulations. (a) Stormwater Regulations.--The Administrator of the Environmental Protection Agency shall not promulgate the Phase II stormwater regulations until the Administrator submits to the Committee on Environment and Public Works of the Senate and the Committee on Transportation and Infrastructure of the House of Representatives a report containing-- (1) an in-depth impact analysis on the effect the final regulations will have on urban, suburban, and rural local governments subject to the regulations, including an estimate of-- (A) the costs of complying with the six minimum control measures described in the regulations; and (B) the costs resulting from the lowering of the construction threshold from 5 acres to 1 acre; (2) an explanation of the rationale of the Administrator for lowering the construction site threshold from 5 acres to 1 acre, including-- (A) an explanation, in light of recent court decisions, of why a 1-acre measure is any less arbitrarily determined than a 5-acre measure; and (B) all qualitative information used in determining an acre threshold for a construction site; (3) documentation demonstrating that stormwater runoff is generally a problem in communities with populations of 50,000 to 100,000 (including an explanation of why the coverage of the regulation is based on a census-determined population instead of a water quality threshold); and (4) information that supports the position of the Administrator that the Phase II stormwater program should be administered as part of the National Pollutant Discharge Elimination System under section 402 of the Federal Water Pollution Control Act (33 U.S.C. 1342). (b) Phase <<NOTE: Deadline. Reports.>> I Regulations.--No later than 120 days after the enactment of this Act, the Environmental Protection Agency shall submit to the Environment and Public Works Committee of the Senate and the Committee on Transportation and Infrastructure of the House of Representatives a report containing a detailed explanation of the impact, if any, that the Phase I program has had in improving water quality in the United States (including [[Page 113 STAT. 1097]] a description of specific measures that have been successful and those that have been unsuccessful). (c) Federal Register.--The reports described in subsections (a) and (b) shall be published in the Federal Register for public comment. Sec. 432. Pesticide Tolerance Fees. None of the funds appropriated or otherwise made available by this Act shall be used to promulgate a final regulation to implement changes in the payment of pesticide tolerance processing fees as proposed at 64 Fed. Reg. 31040, or any similar proposals. The Environmental Protection Agency may proceed with the development of such a rule.
TITLE 42 > CHAPTER 103 > SUBCHAPTER I > § 9601 NOTES:
Source ( Pub. L. 96–510 , title I, § 101, Dec. 11, 1980, 94 Stat. 2767 ; Pub. L. 96–561 , title II, § 238(b), Dec. 22, 1980, 94 Stat. 3300 ; Pub. L. 99–499 , title I, §§ 101, 114 (b) , 127 (a), title V, § 517(c)(2), Oct. 17, 1986, 100 Stat. 1615 , 1652, 1692, 1774; Pub. L. 100–707 , title I, § 109(v), Nov. 23, 1988, 102 Stat. 4710 ; Pub. L. 103–429 , § 7(e)(1), Oct. 31, 1994, 108 Stat. 4390 ; Pub. L. 104–208 , div. A, title I, § 101(a) [title II, § 211(b)], title II, § 2502(b), Sept. 30, 1996, 110 Stat. 3009 , 3009–41, 3009–464; Pub. L. 104–287 , § 6(j)(1), Oct. 11, 1996, 110 Stat. 3399 ; Pub. L. 106–74 , title IV, § 427, Oct. 20, 1999, 113 Stat. 1095 ; Pub. L. 107–118 , title II, §§ 211(a), 222 (a) , 223 , 231 (a) , Jan. 11, 2002, 115 Stat. 2360 , 2370, 2372, 2375.) References in Text
This chapter, referred to in pars. (5), (13), (20)(D), (G), (35)(C), (D), (39)(B)(iii), and (40)(G), was in the original “this Act”, meaning Pub. L. 96–510 , Dec. 11, 1980, 94 Stat. 2767 , as amended, known as the Comprehensive Environmental Response, Compensation, and Liability Act of 1980. For complete classification of this Act to the Code, see Short Title note below and Tables. The Safe Drinking Water Act, referred to in pars. (7), (10), and (39)(B)(iv), is title XIV of act July 1, 1944, as added Dec. 16, 1974, Pub. L. 93–523 , § 2(a), 88 Stat. 1660, as amended, which is classified generally to subchapter XII (§ 300f et seq.) of chapter 6A of this title. Part C of the Safe Drinking Water Act is classified generally to part C (§ 300h et seq.) of subchapter XII of chapter 6A of this title. For complete classification of this Act to the Code, see Short Title note set out under section 201 of this title and Tables. The Magnuson-Stevens Fishery Conservation and Management Act, referred to in pars. (8) and (16), is Pub. L. 94–265 , Apr. 13, 1976, 90 Stat. 331 , as amended, which is classified principally to chapter 38 (§ 1801 et seq.) of Title 16, Conservation. The fishery conservation zone established by this Act, referred to in par. (16), was established by section 101 of this Act ( 16 U.S.C. 1811 ), which as amended generally by Pub. L. 99–659 , title I, § 101(b), Nov. 14, 1986, 100 Stat. 3706 , relates to United States sovereign rights and fishery management authority over fish within the exclusive economic zone as defined in section 1802 of Title 16 . For complete classification of this Act to the Code, see Short Title note set out under section 1801 of Title 16 and Tables. The Clean Air Act, referred to in par. (10), is act July 14, 1955, ch. 360, as amended generally by Pub. L. 88–206 , Dec. 17, 1963, 77 Stat. 392 , and later by Pub. L. 95–95 , Aug. 7, 1977, 91 Stat. 685 . The Clean Air Act was originally classified to chapter 15B (§ 1857 et seq.) of this title. On enactment of Pub. L. 95–95 , the Act was reclassified to chapter 85 (§ 7401 et seq.) of this title. Parts C and D of title I of the Clean Air Act are classified generally to parts C (§ 7470 et seq.) and D (§ 7501 et seq.), respectively, of subchapter I of chapter 85 of this title. For complete classification of this Act to the Code, see Short Title note set out under section 7401 of this title and Tables. The Atomic Energy Act of 1954, referred to in pars. (10) and (22), is act Aug. 1, 1946, ch. 724, as added by act Aug. 30, 1954, ch. 1073, § 1, 68 Stat. 921 , and amended, which is classified generally to chapter 23 (§ 2011 et seq.) of this title. For complete classification of this Act to the Code, see Short Title note set out under section 2011 of this title and Tables. The Solid Waste Disposal Act, referred to in pars. (14), (39)(B)(iv), (vi)(I), (ix), and (41)(B)(i), is title II of Pub. L. 89–272 , Oct. 20, 1965, 79 Stat. 997 , as amended generally by Pub. L. 94–580 , § 2, Oct. 21, 1976, 90 Stat. 2795 , which is classified generally to chapter 82 (§ 6901 et seq.) of this title. Subtitles C and I of the Act are classified generally to subchapters III (§ 6921 et seq.) and IX (§ 6991 et seq.), respectively, of chapter 82 of this title. For complete classification of this Act to the Code, see Short Title note set out under section 6901 of this title and Tables. The Farm Credit Act of 1971, referred to in par. (20)(G)(iv)(III), is Pub. L. 92–181 , Dec. 10, 1971, 85 Stat. 583 , as amended, which is classified generally to chapter 23 (§ 2001 et seq.) of Title 12, Banks and Banking. For complete classification of this Act to the Code, see Short Title note set out under section 2001 of Title 12 and Tables. The Disaster Relief and Emergency Assistance Act, referred to in par. (23), is Pub. L. 93–288 , May 22, 1974, 88 Stat. 143 , as amended, known as the Robert T. Stafford Disaster Relief and Emergency Assistance Act, which is classified principally to chapter 68 (§ 5121 et seq.) of this title. For complete classification of this Act to the Code, see Short Title note set out under section 5121 of this title and Tables. The Federal Water Pollution Control Act, referred to in par. (39)(B)(iv), is act June 30, 1948, ch. 758, as amended generally by Pub. L. 92–500 , § 2, Oct. 18, 1972, 86 Stat. 816 , also known as the Clean Water Act, which is classified generally to chapter 26 (§ 1251 et seq.) of Title 33, Navigation and Navigable Waters. Section 311(c) of the Act was amended generally by Pub. L. 101–380 , title IV, § 4201(a), Aug. 18, 1990, 104 Stat. 523 , and no longer contains provisions directing the publishing of a National Contingency Plan. However, such provisions are contained in section 1321 (d) of Title 33 . For complete classification of this Act to the Code, see Short Title note set out under section 1251 of Title 33 and Tables. The Toxic Substances Control Act, referred to in par. (39)(B)(iv), (viii)(II), is Pub. L. 94–469 , Oct. 11, 1976, 90 Stat. 2003 , as amended, which is classified generally to chapter 53 (§ 2601 et seq.) of Title 15, Commerce and Trade. For complete classification of this Act to the Code, see Short Title note set out under section 2601 of Title 15 and Tables. Amendments
2002—Par. (35)(A). Pub. L. 107–118 , § 223(1), in introductory provisions substituted “deeds, easements, leases, or” for “deeds or” and in concluding provisions substituted “the defendant has satisfied” for “he has satisfied” and inserted before period at end “, provides full cooperation, assistance, and facility access to the persons that are authorized to conduct response actions at the facility (including the cooperation and access necessary for the installation, integrity, operation, and maintenance of any complete or partial response action at the facility), is in compliance with any land use restrictions established or relied on in connection with the response action at a facility, and does not impede the effectiveness or integrity of any institutional control employed at the facility in connection with a response action”. Par. (35)(B). Pub. L. 107–118 , § 223(2), added subpar. (B) and struck out former subpar. (B) which read as follows: “To establish that the defendant had no reason to know, as provided in clause (i) of subparagraph (A) of this paragraph, the defendant must have undertaken, at the time of acquisition, all appropriate inquiry into the previous ownership and uses of the property consistent with good commercial or customary practice in an effort to minimize liability. For purposes of the preceding sentence the court shall take into account any specialized knowledge or experience on the part of the defendant, the relationship of the purchase price to the value of the property if uncontaminated, commonly known or reasonably ascertainable information about the property, the obviousness of the presence or likely presence of contamination at the property, and the ability to detect such contamination by appropriate inspection.” Par. (39). Pub. L. 107–118 , § 211(a), added par. (39). Par. (40). Pub. L. 107–118 , § 222(a), added par. (40). Par. (41). Pub. L. 107–118 , § 231(a), added par. (41). 1999—Par. (20)(D). Pub. L. 106–74 , which directed the amendment of subpar. (D) by inserting “through seizure or otherwise in connection with law enforcement activity” before “involuntary” the first place it appears, could not be executed because the word “involuntary” does not appear in subpar. (D). 1996—Pars. (8), (16). Pub. L. 104–208 , § 101(a) [title II, § 211(b)], substituted “Magnuson-Stevens Fishery” for “Magnuson Fishery”. Par. (20)(E) to (G). Pub. L. 104–208 , § 2502(b), added subpars. (E) to (G). Par. (26). Pub. L. 104–287 substituted “section 60101 (a) of title 49 ” for “the Pipeline Safety Act”. 1994—Par. (26). Pub. L. 103–429 substituted “a hazardous liquid pipeline facility” for “pipeline”. 1988—Par. (23). Pub. L. 100–707 substituted “Disaster Relief and Emergency Assistance Act” for “Disaster Relief Act of 1974”. 1986— Pub. L. 99–499 , § 101(f), struck out “, the term” after “subchapter” in introductory text. Pars. (1) to (10). Pub. L. 99–499 , § 101(f), inserted “The term” and substituted a period for the semicolon at end. Par. (11). Pub. L. 99–499 , § 517(c)(2), amended par. (11) generally. Prior to amendment, par. (11) read as follows: “The term ‘Fund' or ‘Trust Fund' means the Hazardous Substance Response Fund established by section 9631 of this title or, in the case of a hazardous waste disposal facility for which liability has been transferred under section 9607 (k) of this title, the Post-closure Liability Fund established by section 9641 of this title.” Pub. L. 99–499 , § 101(f), inserted “The term” and substituted a period for the semicolon at end. Pars. (12) to (15). Pub. L. 99–499 , § 101(f), inserted “The term” and substituted a period for the semicolon at end. Par. (16). Pub. L. 99–499 , § 101(a), (f), inserted “The term”, struck out “or” after “local government,” inserted “, any Indian tribe, or, if such resources are subject to a trust restriction on alienation, any member of an Indian tribe”, and substituted a period for the semicolon at end. Pars. (17) to (19). Pub. L. 99–499 , § 101(f), inserted “The term” and substituted a period for the semicolon at end. Par. (20)(A). Pub. L. 99–499 , § 101(f), inserted “The term”. Pub. L. 99–499 , § 101(b)(2), amended cl. (iii) generally. Prior to amendment, cl. (iii) read as follows: “in the case of any abandoned facility, any person who owned, operated, or otherwise controlled activities at such facility immediately prior to such abandonment.” Pub. L. 99–499 , § 101(b)(3), in provisions following subcl. (iii), substituted a period for the semicolon at end. Par. (20)(B), (C). Pub. L. 99–499 , § 101(b)(3), substituted “In the case” for “in the case” and a period for the semicolon at end. Par. (20)(D). Pub. L. 99–499 , § 101(b)(1), (f), added subpar. (D). The part of § 101(f) of Pub. L. 99–499 which directed the amendment of par. (20) by changing the semicolon at end to a period could not be executed in view of the prior amendment of par. (20) by § 101(b)(1) of Pub. L. 99–499 which added subpar. (D) ending in a period. Par. (21). Pub. L. 99–499 , § 101(f), inserted “The term” and substituted a period for the semicolon at end. Par. (22). Pub. L. 99–499 , § 101(c), (f), inserted “The term” and “(including the abandonment or discarding of barrels, containers, and other closed receptacles containing any hazardous substance or pollutant or contaminant)”, substituted a period for the semicolon at end. Par. (23). Pub. L. 99–499 , § 101(f), inserted “The terms” and substituted a period for the semicolon at end. Par. (24). Pub. L. 99–499 , § 101(d), (f), inserted “The terms” and substituted “and associated contaminated materials” for “or contaminated materials” and “welfare; the term includes offsite transport and offsite storage, treatment, destruction, or secure disposition of hazardous substances and associated contaminated materials.” for “welfare. The term does not include offsite transport of hazardous substances, or the storage, treatment, destruction, or secure disposition offsite of such hazardous substances or contaminated materials unless the President determines that such actions (A) are more cost-effective than other remedial actions, (B) will create new capacity to manage, in compliance with subtitle C of the Solid Waste Disposal Act [ 42 U.S.C. 6921 et seq.], hazardous substances in addition to those located at the affected facility, or (C) are necessary to protect public health or welfare or the environment from a present or potential risk which may be created by further exposure to the continued presence of such substances or materials;”. The part of § 101(f) of Pub. L. 99–499 which directed amendment of par. (24) by changing the semicolon at end to a period could not be executed in view of prior amendment of par. (24) by § 101(d) of Pub. L. 99–499 which substituted language at end of par. (24) ending in a period for former language ending in a semicolon. Par. (25). Pub. L. 99–499 , § 101(e), (f), inserted “The terms” and “, all such terms (including the terms ‘removal' and ‘remedial action') include enforcement activities related thereto.” The part of § 101(f) of Pub. L. 99–499 which directed amendment of par. (25) by changing the semicolon at end to a period could not be executed in view of prior amendment of par. (25) by § 101(e) of Pub. L. 99–499 inserting language and a period at end of par. (25). Pars. (26), (27). Pub. L. 99–499 , § 101(f), inserted “The terms” and substituted a period for the semicolon at end. Par. (28). Pub. L. 99–499 , § 101(f), inserted “The term” and substituted a period for the semicolon at end. Par. (29). Pub. L. 99–499 , § 101(f), inserted “The terms” and substituted a period for the semicolon at end. Par. (30). Pub. L. 99–499 , § 101(f), inserted “The terms”. Par. (31). Pub. L. 99–499 , § 101(f), inserted “The term” and substituted a period for “; and”. Par. (32). Pub. L. 99–499 , § 101(f), inserted “The terms”. Pars. (33) to (36). Pub. L. 99–499 , § 101(f), added pars. (33) to (36). Par. (37). Pub. L. 99–499 , § 114(b), added par. (37). Par. (38). Pub. L. 99–499 , § 127(a), added par. (38). 1980—Pars. (8), (16). Pub. L. 96–561 substituted “Magnuson Fishery Conservation and Management Act” for “Fishery Conservation and Management Act of 1976”. Effective Date of 1996 Amendment
Section 101 (a) [title II, § 211(b)] of div. A of Pub. L. 104–208 provided that the amendment made by that section is effective 15 days after Oct. 11, 1996. Amendment by section 2502(b) of Pub. L. 104–208 applicable with respect to any claim that has not been finally adjudicated as of Sept. 30, 1996, see section 2505 of Pub. L. 104–208 , set out as a note under section 6991b of this title. Effective Date of 1986 Amendment
Section 4 of Pub. L. 99–499 provided that: “Except as otherwise specified in section 121(b) of this Act [set out as an Effective Date note under section 9621 of this title] or in any other provision of titles I, II, III, and IV of this Act [see Tables for classification], the amendments made by titles I through IV of this Act [enacting subchapter IV of this chapter and sections 9616 to 9626 , 9658 to 9660 , and 9661 of this title and sections 2701 to 2707 and 2810 of Title 10 , Armed Forces, amending sections 6926 , 6928 , 6991 to 6991d , 6991g , 9601 to 9609 , 9611 to 9614 , 9631 , 9651 , 9656 , and 9657 of this title and section 1416 of Title 33 , Navigation and Navigable Waters, and renumbering former section 2701 of Title 10 as section 2721 of Title 10 ] shall take effect on the enactment of this Act [Oct. 17, 1986].” Amendment by section 517(c)(2) of Pub. L. 99–499 effective Jan. 1, 1987, see section 517(e) of Pub. L. 99–499 , set out as an Effective Date note under section 9507 of Title 26 , Internal Revenue Code. Effective Date of 1980 Amendment
Section 238(b) of Pub. L. 96–561 provided that the amendment made by that section is effective 15 days after Dec. 22, 1980. Short Title of 2002 Amendments
Pub. L. 107–118 , § 1, Jan. 11, 2002, 115 Stat. 2356 , provided that: “This Act [enacting section 9628 of this title, amending this section and sections 9604 , 9605 , 9607 , and 9622 of this title, and enacting provisions set out as notes under this section and section 9607 of this title] may be cited as the ‘Small Business Liability Relief and Brownfields Revitalization Act'.” Pub. L. 107–118 , title I, § 101, Jan. 11, 2002, 115 Stat. 2356 , provided that: “This title [amending sections 9607 and 9622 of this title and enacting provisions set out as a note under section 9607 of this title] may be cited as the ‘Small Business Liability Protection Act'.” Pub. L. 107–118 , title II, § 201, Jan. 11, 2002, 115 Stat. 2360 , provided that: “This title [enacting section 9628 of this title and amending this section and sections 9604 , 9605 , and 9607 of this title] may be cited as the ‘Brownfields Revitalization and Environmental Restoration Act of 2001'.” Short Title of 1996 Amendment
Section 2501 of div. A of Pub. L. 104–208 provided that: “This subtitle [subtitle E (§§ 2501–2505) of title II of div. A of Pub. L. 104–208 , amending this section and sections 6991b and 9607 of this title and enacting provisions set out as a note under section 6991b of this title] may be cited as the ‘Asset Conservation, Lender Liability, and Deposit Insurance Protection Act of 1996'.” Short Title of 1992 Amendment
Pub. L. 102–426 , § 1, Oct. 19, 1992, 106 Stat. 2174 , provided that: “This Act [amending section 9620 of this title and enacting provisions set out as a note under section 9620 of this title] may be cited as the ‘Community Environmental Response Facilitation Act'.” Short Title of 1986 Amendment
Section 1 of Pub. L. 99–499 provided that: “This Act [enacting subchapter IV of this chapter and sections 9616 to 9626 , 9658 to 9662 , 11001 to 11005 , 11021 to 11023 , and 11041 to 11050 of this title, sections 2701 to 2707 and 2810 of Title 10 , Armed Forces, and sections 59A , 4671 , 4672 , 9507 , and 9508 of Title 26 , Internal Revenue Code, amending this section, sections 6926 , 6928 , 6991 to 6991d , 6991g , 9602 to 9609 , 9611 to 9614 , 9631 , 9651 , 9656 , and 9657 of this title, sections 26 , 164 , 275 , 936 , 1561 , 4041 , 4042 , 4081 , 4221 , 4611 , 4612 , 4661 , 4662 , 6154 , 6416 , 6420 , 6421 , 6425 , 6427 , 6655 , 9502 , 9503 , and 9506 of Title 26 , and section 1416 of Title 33 , Navigation and Navigable Waters, renumbering former section 2701 of Title 10 as section 2721 of Title 10 , repealing sections 9631 to 9633 , 9641 , and 9653 of this title and sections 4681 and 4682 of Title 26 , and enacting provisions set out as notes under this section, sections 6921 , 6991b , 7401 , 9620 , 9621 , 9658 , 9660 , 9661 , and 11001 of this title, section 2703 of Title 10 , sections 1, 26, 4041, 4611, 4661, 4671, 4681 , 9507, and 9508 of Title 26, and section 655 of Title 29 , Labor] may be cited as the ‘Superfund Amendments and Reauthorization Act of 1986'.” Short Title
Section 1 of Pub. L. 96–510 provided: “That this Act [enacting this chapter, section 6911a of this title, and sections 4611 , 4612 , 4661 , 4662 , 4681 , and 4682 of Title 26 , Internal Revenue Code, amending section 6911 of this title, section 1364 of Title 33 , Navigation and Navigable Waters, and section 11901 of Title 49 , Transportation, and enacting provisions set out as notes under section 6911 of this title and sections 1 and 4611 of Title 26 ] may be cited as the ‘Comprehensive Environmental Response, Compensation, and Liability Act of 1980'.” Transfer of Functions
For transfer of certain functions from Nuclear Regulatory Commission to Chairman thereof, see Reorg. Plan No. 1 of 1980, 45 F.R. 40561 , 94 Stat. 3585 , set out as a note under section 5841 of this title. Territorial Sea and Contiguous Zone of United States
For extension of territorial sea and contiguous zone of United States, see Proc. No. 5928 and Proc. No. 7219, respectively, set out as notes under section 1331 of Title 43 , Public Lands. Definitions
Section 2 of Pub. L. 99–499 provided that: “As used in this Act [see Short Title of 1986 Amendment note above]— “(1) CERCLA.—The term ‘CERCLA' means the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 ( 42 U.S.C. 9601 et seq.). “(2) Administrator.—The term ‘Administrator' means the Administrator of the Environmental Protection Agency.”Cooperation
Under Section D(9), the regulated entity must cooperate as required by EPA and provide the Agency with the information it needs to determine Policy applicability. The entity must not hide, destroy or tamper with possible evidence following discovery of potential environmental violations. In order for the Agency to apply the Policy fairly, it must have sufficient information to determine whether its conditions are satisfied in each individual case. In general, EPA requests audit reports to determine the applicability of this Policy only where the information contained in the audit report is not readily available elsewhere and where EPA decides that the information is necessary to determine whether the terms and conditions of the Policy have been met. In the rare instance where an EPA Regional office seeks to obtain an audit report because it is otherwise unable to determine whether Policy conditions have been met, the Regional office will notify the Office of Regulatory Enforcement at EPA headquarters.
Entities that disclose potential criminal violations may expect a more thorough review by the Agency. In criminal cases, entities will be expected to provide, at a minimum, the following: access to all requested documents; access to all employees of the disclosing entity; assistance in investigating the violation, any noncompliance problems related to the disclosure, and any environmental consequences related to the violations; access to all information relevant to the violations disclosed, including that portion of the environmental audit report or documentation from the compliance management system that revealed the violation; and access to the individuals who conducted the audit or review.
F. Opposition to Audit Privilege and Immunity
The Agency believes that the Audit Policy provides effective incentives for self-policing without impairing law enforcement, putting the environment at risk or hiding environmental compliance information from the public. Although EPA encourages environmental auditing, it must do so without compromising the integrity and enforceability of environmental laws. It is important to distinguish between EPA's Audit Policy and the audit privilege and immunity laws that exist in some States. The Agency remains firmly opposed to statutory and regulatory audit privileges and immunity. Privilege laws shield evidence of wrongdoing and prevent States from investigating even the most serious environmental violations. Immunity laws prevent States from obtaining penalties that are appropriate to the seriousness of the violation, as they are required to do under Federal law. Audit privilege and immunity laws are unnecessary, undermine law enforcement, impair protection of human health and the environment, and interfere with the public's right to know of potential and existing environmental hazards.
Statutory audit privilege and immunity run counter to encouraging the kind of openness that builds trust between regulators, the regulated community and the public. For example, privileged information on compliance contained in an audit report may include information on the cause of violations, the extent of environmental harm, and what is necessary to correct the violations and prevent their recurrence. Privileged information is unavailable to law enforcers and to members of the public who have suffered harm as a result of environmental violations. The Agency opposes statutory immunity because it diminishes law enforcement's ability to discourage wrongful behavior and interferes with a regulator's ability to punish individuals who disregard the law and place others in danger. The Agency believes that its Audit Policy provides adequate incentives for self-policing but without secrecy and without abdicating its discretion to act in cases of serious environmental violations.
Privilege, by definition, invites secrecy, instead of the openness needed to build public trust in industry's ability to self-police. American law reflects the high value that the public places on fair access to the facts. The Supreme Court, for example, has said of privileges that, ‘‘ [w]hatever their origins, these exceptions to the demand for every man's evidence are not lightly created nor expansively construed, for they are in derogation of the search for truth.'' United States v. Nixon , 418 U.S. 683, 710 (1974). Federal courts have unanimously refused to recognize a privilege for environmental audits in the context of government investigations. See, e.g., United States v. Dexter Corp., 132 F.R.D. 8, 10 (D.Conn. 1990) (application of a privilege ‘‘would effectively impede [EPA's] ability to enforce the Clean Water Act, and would be contrary to stated public policy.'') Cf. In re Grand Jury Proceedings, 861 F. Supp. 386 (D. Md. 1994) (company must comply with a subpoena under Food, Drug and Cosmetics Act for self-evaluative documents).
Applicability
(1) This Policy applies to settlement of claims for civil penalties for any violations under all of the Federal environmental statutes that EPA administers, and supersedes any inconsistent provisions in media-specific penalty or enforcement policies and EPA's 1995 Policy on ‘‘Incentives for Self-Policing: Discovery, Disclosure, Correction and Prevention of Violations.''
(2) To the extent that existing EPA enforcement policies are not inconsistent, they will continue to apply in conjunction with this Policy. However, a regulated entity that has received penalty mitigation for satisfying specific conditions under this Policy may not receive additional penalty mitigation for satisfying the same or similar conditions under other policies for the same violation, nor will this Policy apply to any violation that has received penalty mitigation under other policies. Where an entity has failed to meet any of conditions D(2) through D(9) and is therefore not eligible for penalty relief under this Policy, it may still be eligible for penalty.
Relief under other EPA media-specific enforcement policies in recognition of good faith efforts, even where, for example, the violation may have presented an imminent and substantial endangerment or resulted in serious actual harm.
(3) This Policy sets forth factors for consideration that will guide the Agency in the exercise of its enforcement discretion. It states the Agency's views as to the proper allocation of its enforcement resources. The Policy is not final agency action and is intended as guidance. This Policy is not intended, nor can it be relied upon, to create any rights enforceable by any party in litigation with the United States . As with the 1995 Audit Policy, EPA may decide to follow guidance provided in this document or to act at variance with it based on its analysis of the specific facts presented. This Policy may be revised without public notice to reflect changes in EPA's approach to providing incentives for self-policing by regulated entities, or to clarify and update text.
(4) This Policy should be used whenever applicable in settlement negotiations for both administrative and civil judicial enforcement actions. It is not intended for use in pleading, at hearing or at trial. The Policy may be applied at EPA's discretion to the settlement of administrative and judicial enforcement actions instituted prior to, but not yet resolved, as of the effective date of this Policy.
(5) For purposes of this Policy, violations discovered pursuant to an environmental audit or compliance management system may be considered voluntary even if required under an Agency ‘‘partnership'' program in which the entity participates, such as regulatory flexibility pilot projects like Project XL. EPA will consider application of the Audit Policy to such partnership program projects on a project-by-project basis.
(6) EPA has issued interpretive guidance addressing several applicability issues pertaining to the Audit Policy. Entities considering whether to take advantage of the Audit Policy should review that guidance to see if it addresses any relevant questions. The guidance can be found on the Internet at www.epa.gov/oeca/ ore/apolguid.html.
H. Public Accountability
EPA will make publicly available the terms and conditions of any compliance agreement reached under this Policy, including the nature of the violation, the remedy, and the schedule for returning to compliance.
I. Effective Date
in Kellev v. EPA,4 the Circuit 'Courtof Appeals for. the District of Columbia vacated the Rule on the ground that 'EPA lacked authority to issue'the Rule as a binding regulation.
Nevertheless, the Kpllev decision did not preclude.EPAand DOJ from following the provisions of the Rule as enforcement policy, and the agencies have generally done so.This revised Policy is effective May 11, 2000.
Dated: March 30, 2000.
Steven A. Herman,
Assistant Administrator for Enforcement and Compliance Assurance.
[FR Doc. 00–8954 Filed 4–10–00; 8:45 am]
BILLING CODE 6560–50–P
DOE ends Fed preemption of water rules
Jan 5, 2011 10:39 AM, BY ROBERT P. MADER Of CONTRACTOR's staff
Woolpert Selected for $30 Million Sacramento District,
US Army Corps of Engineers Contract
GIS News - Business Written by Woolpert 05 January 2011
DAYTON, Ohio (January 5, 2011)… Woolpert announced it was recently selected by the Sacramento District, United States Army Corps of Engineers (USACE) for a five-year, $30 million indefinite-delivery, indefinite-quantity (IDIQ) contract to provide master planning and geographic information system (GIS) services for military and civil works projects worldwide.
Unique aspects of this IDIQ include both its volume and worldwide capacity, meaning Woolpert may be tasked directly with the Sacramento District, or in coordination with other USACE districts, to provide services across the Department of Defense (DoD) and other federal agencies, as well as municipalities, counties, state or other local agencies. Possible services for the contract include developing Army Real Property Master plans or acquiring aerial photography and developing geospatial data. This contract also supports the ongoing efforts of Headquarters Air Combat Command (HQ ACC) to establish sustainability baselines and LEED-focused installation design and development guides under its Sustainable Installations program.
“We're pleased to have been selected by the Sacramento District for this contract,” said David Ziegman, Woolpert vice president and practice leader for military design services. “We've had the opportunity to serve the Sacramento District for the past several years, providing master planning and geospatial services. Our team looks forward to continuing this support over the next several years working directly with the Sacramento District and its customers, or USACE customers worldwide.”
About Woolpert
Woolpert, ranked by Engineering News-Record as a top national design firm, provides professional engineering, architecture, planning, enterprise information management, water management, surveying, and photogrammetry and remote sensing services to clients in the public and private sectors. Founded in 1911, Woolpert's innovative design approach and commitment to the creative application of technology have grown the firm into a leader in the consulting industry. With nearly 650 professionals in 22 offices located throughout the U.S., Woolpert's collaborative, multidisciplinary approach is driven by great people, great clients and great projects.
Next >
NPL DEFERRAL.—
(1) DEFERRAL TO STATE VOLUNTARY CLEANUPS.—At the request of a State and subject to paragraphs (2) and (3), the President generally shall defer final listing of an eligible response site on the National Priorities List if the President determines that—
(A) the State, or another party under an agreement with or order from the State, is conducting a response action at the eligible response site—
(i) in compliance with a State program that specifically governs response actions for the protection of public health and the environment; and
(ii) that will provide long-term protection of human health and the environment; or
(B) the State is actively pursuing an agreement to perform a response action described in subparagraph (A) at the site with a person that the State has reason to believe
is capable of conducting a response action that meets the requirements of subparagraph (A).
(2) PROGRESS TOWARD CLEANUP.—If, after the last day of the 1-year period beginning on the date on which the President proposes to list an eligible response site on the National Priorities List, the President determines that the State or other party is not making reasonable progress toward completing a response action at the eligible response site, the President may list the eligible response site on the National Priorities List.
(3) CLEANUP AGREEMENTS.—With respect to an eligible response site under paragraph (1)(B), if, after the last day of the 1-year period beginning on the date on which the President proposes to list the eligible response site on the National Priorities List, an agreement described in paragraph (1)(B) has not been reached, the President may defer the listing of the eligible response site on the National Priorities List for an additional period of not to exceed 180 days if the President determines deferring the listing would be appropriate based on—
(A) the complexity of the site;
(B) substantial progress made in negotiations; and
(C) other appropriate factors, as determined by the President.
- Home
- Contact Us
- Español
- Privacy Policy
- Important Notices
- Accessibility
- Download Plug-ins
- FOIA
- No FEAR Act Data
- USA.gov
- DHS
* The social media links provided are for reference only. FEMA does not endorse any non-government Web sites, companies or applications.
Federal Emergency Management Agency
U.S. Department of Homeland Security
500 C Street SW, Washington, D.C. 20472
(202) 646-2500
(800) 621-FEMA / TTY (800) 462-7585
3 Step Guide for AssistanceEPA 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:
Federal Emergency Management Agency
(FEMA) provides support to State, Tribal, and local governments and to the private sector for responding to releases of hazardous substances. Some of FEMA’s activities include: distributing information; planning for emergencies; training for emergencies; membership and participation in the 13 Regional Response Teams; and the administration of $5 million each year to State governments and Tribes for hazardous materials (HAZMAT) training. http://www.fema.gov/pte/carep.htm
National Institute for Environmental Health Sciences
(NIEHS) sponsors two major Superfund programs: the Hazardous Substances Basic Research and Training Program and the Worker Education and Training Program. These two programs have successfully trained over 800,000 workers across the country by providing nearly 42,000 classroom and hands-on training courses that account for over 12 million contact hours of training. http://www.niehs.nih.gov
National Oceanic and Atmospheric Administration
(NOAA) acts on behalf of the Secretary of Commerce as a natural resource trustee. NOAA trust resources include coastal and marine fisheries, marine mammals, resources of National Marine Sanctuaries and Estuarine Research Reserves, tidal wetlands, and other coastal habitats. Through the Coastal Protection and Restoration Program, NOAA has worked with EPA, PRPs, and other Federal, State, and Tribal trustees to initiate cleanup and restoration activities at over 500 sites, ensuring more environmentally protective
remedies and cleaner, healthier coastal habitats. http:/ /www.noaa.gov
United States Coast Guard(USCG) continuously maintains facilities for the surveillance of oil discharges and hazardous substance releases that occur in the coastal zone. USCG administers the National Response Center (NRC) which provides a centralized means for coordinating national response logistics for responding to releases. NRC also maintains a database of
critical hazardous substance information that can quickly be provided to responders in order to help identify a substance and thereby correctly choose an appropriate response action. http://www.uscg.mil
Agency for Toxic Substances and Disease Registry
(ATSDR) contributes to the understanding of the negative health effects associated with exposure to hazardous substances, identifies parties at risk of exposure, and intervenes to protect communities from exposure. Since ATSDR was established, it has conducted assessments or consultations at more than 3,000 hazardous waste sites. http://www.atsdr.cdc.gov
Army Corps of Engineers(USACE) provides specialized equipment and personnel to assist with the design and construction of large scale remedial actions at Superfund sites. In addition, USACE’s Center of Expertise and its Rapid Response Program provide nationwide support to Superfund. USACE has received nearly 5,000 assignments over the last 18 years. http://hq.environmental. usace.army.mil
Department of Agriculture(USDA) is responsible for preventing releases at USDA facilities as well as the efficient management and cleanup of hazardous materials when releases occur. USDA
has inventoried and characterized over 2,000 sites and completed over 300 removal actions and other responses. http://www.usda.gov
Department of Defense(DoD) responds to releases and threatened releases at military facilities. The Defense Environmental Restoration Program (DERP) has responded at 95 percent of the nearly
28,000 potentially contaminated DoD sites – and cleaned up 62 percent of these sites. http://www.denix.osd.mil
Department of Energy(DOE) ensures cleanup of radioactive, chemical, and hazardous wastes that were left after 50 years of nuclear weapons production, and associated research and development
activities. By the end of 1999, a total of 6,810 releases had been identified – of which 4,053 were in the assessment phase, 876 were in the cleanup phase, and 1,881 had been completed. Three DOE sites have been cleaned up and deleted from the NPL. http:/ /www.em.doe.gov
Department of the Interior(DOI) operates programs in support of EPA and the U.S. Coast Guard for preparedness and response actions, and performs natural resource damage assessment and
restoration functions during an oil discharge or a release of hazardous materials. DOI is designated as a Natural Resource Trustee and is also responsible for developing the regulations to determine the extent of harm to a natural resource. http://www.doi.gov/ indexj.html
Department of Justice(DOJ) represents EPA and other Federal agencies in judicial actions in Federal Court to enforce the provisions of CERCLA that require PRPs to perform or pay for site
cleanup. DOJ has worked with EPA to transform the Superfund program by prompting responsible parties to enter into settlements or voluntarily comply with administrative orders, rather than litigating with the government. DOJ also represents the Federal trustees when there is a need to recover damages resulting from injuries to natural resources. http://www.usdoj.gov/enrd
Thanking Our Federal Partners
For Further Information . . . on the Superfund program, please consult www.epa.gov/superfund or contact William O. Ross at (703) 603-8798 or ross.william@epa.gov.Department of Toxic Substances Control v. Interstate Non-Ferrous Corp., 99 F. Supp.2d 1123 (E.D. Cal. 2000).
The Court held that SREA applies to non-federal CERCLA enforcement actions pending at the time of its enactment. Therefore, the SREA exemption applies to a state environmental agency's CERCLA Sections 107(a) and 113(g) actions against several scrap metal recyclers. In enacting SREA, Congress did not explicitly mention every class of pending case to which Section 127 liability exemption applies. Nevertheless, SREA’s structure, express language, purpose, and legislative history militate in favor of retrospectivity as to all pending actions brought by any party except the United States.
The Court held that Congressional intent that SREA apply retrospectively to pending cases initiated by parties other than the United States could be gleaned from: [1] the headings used in SREA indicating that Congress intended to clarify, not change, the law; [2] SREA’s stated purpose, which was to exempt eligible recyclers from liability; [3] language throughout SREA, which fixes different requirements based on when the transaction occurred; [4] and, inter alia, the statement of Senator Lott, a chief co-sponsor of SREA, which was not “legislative history,” but was to be accorded substantial weight. The Court, however, did not find SREA to be retroactive, meaning that it did not find that SREA attaches new legal consequences to prior acts, because: [1] no new liability was created, and the State of California’s “rights” were not impaired (it would have cleaned up the site whether or not it thought it could recover costs from the parties it sued); and because [2] SREA clarified existing law, it did not change it.
Nevertheless, the retrospective application of the exemption to pending actions does not result in an automatic exemption because any party seeking to avoid liability under Section 127 must prove by a preponderance of the evidence all of the exemption requirements. In addition, the exemption does not apply retroactively to actions resolved before the passage of SREA.Some commenters presented the view that CERCLA does not authorize EPA to respond to releases of mining wastes, and that sites involving mining wastes should not be included on the NPL. This view is based on the interpretation that mining wastes are not considered hazardous substances under CERCLA. CERCLA includes in its definition of hazardous substances materials that constitute hazardous wastes under the Resource Conservation and Recovery Act (RCRA). In the 1980 amendments to RCRA, the regulation of mining wastes under Subtitle C of RCRA was temporarily suspended and that suspension is presently in effect. For that reason, the commenters believe that mining wastes should not be considered hazardous substances under CERCLA.
EPA disagrees with the commenters' interpretation. The Agency believes that mining wastes can be considered hazardous substances under CERCLA if it meets any of the other statutory criteria (e.g., if the material is also a hazardous air pollutant listed under section 112 of the Clean Air Act). More importantly, however, EPA's authority to respond to mining waste releases, and the Agency's ability to list mining waste sites on the NPL, does not depend on whether mining wastes are hazardous substances. Section 104(a)(l) of CERCLA authorizes EPA to respond to releases of not only "hazardous substances," but also "any pollutant or contaminant." "Pollutant or contaminant" is defined very broadly in section 104(a)(2) to include essentially any substance that may cause an adverse effect on human health. EPA is convinced that mining wastes can satisfy these minimal criteria, that the Agency therefore has the authority to respond to releases of mining wastes, and that listing of mining waste sites on the NPL is appropriate.
Sec. 9604. Response authorities (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;
As described above, however, the response authorities of CERCLA are very broad. As long as EPA has the authority to respond, and no other Federal statute provides authority comparable to CERCLA, the Agency has the obligation at least to evaluate the precise extent of the risk and the possible response actions at all sites that upon preliminary investigation appear to present a significant risk. EPA should also remain free at least to consider all types of response actions at all sites in order to determine which is the most appropriate and cost-effective, and should not limit itself to considering only removal actions at a particular class of facilities. Inclusion of the NPL is appropriate in order to begin the process of determining how to address such sites. Since inclusion on the NPL does not determine whether response actions will be taken or what response is appropriate, EPA is free to develop an approach for responding to mining waste sites that takes into account any unique features of such sites.
Comments also presented the view that the HRS is not an appropriate tool to estimate the risk to health and the environment presented by mining waste sites.
They pointed out that the HRS does not consider concentration levels at the point of impact, but rather the mere presence of the substance in the environment. As explained in Part VII below, however, the purpose of scoring for an observed release without taking level of concentration into account is simply to reflect the likelihood that the subject substances will migrate into the environment, which in the case of an observed release is 100 percent. Future releases, or even current releases for which concentration data do not exist, may raise the level of concentration to the point that it presents a greater risk than the release first observed. While releases from mining waste sites may be somewhat less likely than releases of man-made chemical substances to ever reach extremely high concentrations, harmful concentrations can occur from mining waste sites and the distinction is not sufficient to invalidate the HRS as an appropriate model for scoring mining waste sites.
Another comment was that the locations of mining waste sites are generally rural, so that the only sizable target population are far downstream. The comment alleged that these populations are considered in the HRS scoring but in reality may never be affected. This assumption, however, is false. The HRS considers only those persons living within a three mile radius of the site as constituting the target population. If a mining waste site has a high score for this factor, it indicates that despite the fact that the locations of such sites typically are rural, this particular site has a significant number of people within three miles.
Federal Register Notice
48184 - 48189 Federal Register / Vol. 54, No. 223 / Tuesday, November 21, 1989 / Rules and Regulations
- Summary
- Addresses
- Introduction
- Purpose and Implementation of the NPL
- NPL Update Process
- Contents of this Final Rule
- Response to Comments
- Regulatory Impact Analysis
- Regulatory Flexibility Act Analysis
48184 - 48189 Federal Register / Vol. 54, No. 223 / Tuesday, November 21, 1989 / Rules and Regulations
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 300
[FRL 3681-4]National Priorities List for Uncontrolled Hazardous Waste Sites
AGENCY: Environmental Protection Agency.
ACTION: Final rule.The Environmental Protection Agency ("EPA") is amending the National Priorities List ("NPL"). The NPL is appendix B of the National Oil and Hazardous Substances Pollution Contingency Plan ("NCP"), 40 CFR Part 300. The Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (CERCLA) requires that the NCP include a list of national priorities among the known releases or threatened releases of hazardous substances, pollutants, or contaminants throughout the United States, and that the list be revised at least annually. The NPL, initially promulgated on September 8, 1983 (48 FR 40658), constitutes this list and is being revised today in the following way:
The addition of Radium Chemical Co. Inc., in Woodside, New York, New York, and Forest Glen Mobile Home Subdivision, in Niagara Falls, New York;
the addition of 27 Federal facility sites; and
the expansion of the definition of a previously listed Federal facility site.
After carefully reviewing public comments on these sites, EPA has determined that they meet the eligibility requirements of the NPL and are consistent with the Agency's listing policies. Information supporting these actions is contained in the Superfund Public Dockets.
EFFECTIVE DATE:
The effective date for this amendment to the NCP shall be December 21, 1989. CERCLA section 305 provides for a legislative veto of regulations promulgated under CERCLA. Although INS v. Chadha, 462 U.S. 919, 103 S. Ct. 2764 (1983), cast the validity of the legislative veto into question, EPA has transmitted a copy of this regulation to the Secretary of the Senate and the Clerk of the House of Representatives. If any action by Congress calls the effective date of this regulation into question, the Agency will publish a notice of clarification in the Federal Register .
Addresses for the Headquarters and Regional dockets follow. For further details on what these dockets contain, see Section I of the " SUPPLEMENTARY INFORMATION " portion of this preamble.
Tina Maragousis
Headquarters, U.S. EPA CERCLA Docket Office, OS-245
Waterside Mall
401 M Street, SW.
Washington, DC 20460
202/382-3046Evo Cunha
Region 1, U.S. EPA Waste Management Records Center, HES-CAN 6
J.F. Kennedy Federal Building
Boston, MA 02203
617/565-3300U.S. EPA Region 2
Document Control Center, Superfund Docket
26 Federal Plaza, 7th Floor, Room 740
New York, NY 10278
Latchmin Serrano, 212/264-5540
Ophelia Brown, 212/264-1154Gayle Alston
Region 4, U.S. EPA Library, Room G-6
345 Courtland Street, NE.
Atlanta, GA 30365
404/347-4216Cathy Freeman
Region 5, U.S. EPA, 5 HS-12
230 South Dearborn Street
Chicago, IL 60604
312/886-6214Dolores Eddy
Region 8, U.S. EPA Library
999 18th Street, Suite 500
Denver, CO 80202-2405
303/293-1444Lisa Nelson
Region 9, U.S. EPA Library, 6th Floor
215 Fremont Street
San Francisco, CA 94105
415/768-1377David Bennett
Region 10, U.S. EPA, 9th Floor
1200 6th Avenue, Mail Stop HW-093
Seattle, WA 98101
206/442-2103FOR FURTHER INFORMATION CONTACT:
Martha Otto
Hazardous Site Evaluation Division
Office of Superfund Remediation Technology Innovation (0S-230)
U.S. Environmental Protection Agency
401 M Street, SW.
Washington, DC 20460
or the Superfund Hotline, Phone (800) 424-9346 or (382-3000 in the Washington, DC, metropolitan area).SUPPLEMENTARY INFORMATION:
Table of Contents
I. Introduction II. Purpose and Implementation of the NPL III. NPL Update Process IV. Contents of This NPL Update V. Response to Comments VI. Regulatory Impact Analysis VII. Regulatory Flexibility Act Analysis Institutional Controls in CERCLA Remedies
The procedures for evaluating and selecting remedies conducted under CERCLA authority were
promulgated in a regulation known as the National Contingency Plan (NCP), and codified in 40 CFR
Part 300. In the NCP, EPA stated that institutional controls should be used primarily to supplement
engineering controls, but did not forbid the use of institutional controls as the sole remedy. Specifically,
the following language on the use of institutional controls is provided in 40 CFR Part 300.430:
Institutional controls may be used during the conduct of the remedial
investigation/feasibility study (RI/FS) and implementation of the remedial action and,
where necessary, as a component of the completed remedy. The use of institutional
controls shall not substitute for active response measures (e.g., treatment and/or
containment of source material, restoration of ground waters to their beneficial uses) as
the sole remedy unless such active measures are determined not to be practicable,
based on the balancing of trade-offs among alternatives that is conducted during the
selection of [the] remedy. [40 CFR 300.430 (a) (iii) (D)]
CERCLA Remedy Selection Criteria
The EPA has established nine decision criteria that are to be used for balancing trade-offs, evaluating,
and selecting remedies. These nine criteria are grouped into three categories:
Threshold criteria that must be met to be considered eligible for selection;
• Overall protection of human health and the environment;
• Compliance with applicable or relevant and appropriate requirements (ARARs);
Primary balancing criteria;
• Long-term effectiveness and permanence;
• Reductions of toxicity, mobility, or volume through treatment;
• Short-term effectiveness;
• Implementability;
• Cost;
Modifying criteria;
• State acceptance; and• Community acceptance.
When selecting institutional controls as part of a remedy or as the sole remedy, the NCP prescribes that
permanent solutions should be used to the maximum extent practicable and considers the preference for
treatment as a principal element of a remedy (40 CFR 300.430 (f)). As with all other remedies,
institutional controls need to be evaluated in terms of the nine CERCLA criteria.
EPA Guidance
Although the NCP regulation specifies the conditions under which institutional controls can be
incorporated into a remedy, it does not provide specific guidance on how to incorporate them into the
remedy selection process. To clarify EPA’s intent and address reasonable assumptions in the remedy
selection process, EPA issued a directive entitled “Land Use in the CERCLA Remedy Selection
Process.”4 This directive primarily addresses the role of land use in remedy selection, but also provides
insight into EPA’s position on the use of institutional controls. In this document, EPA specifies that
institutional controls should be evaluated and implemented with the same degree of care as is given to
other elements of the remedy. The directive states that in evaluating a remedy that includes an
institutional control, EPA should determine:
• The type of institutional control to be used;
• The existence of the authority to implement the institutional control; and
• The appropriate entities’ resolve and ability to implement the institutional control.
CERCLA also requires that federal agencies transferring remediated property to non-federal agencies
include a covenant in the deed that states “all action necessary to protect human health and the
environment has been taken with respect to any hazardous substances remaining on the property.”5
CERCLA requires federal agencies to demonstrate to EPA that a remedy is “operating properly and
successfully” before the federal agency can provide the covenant required in the deed.6 If remedial
action is necessary after the property has been transferred, the federal government retains the
responsibility for any contamination that occurred before the property transfer. Exhibit 2-1 provides
more detail on CERCLA “operating properly and successfully” determinations.EPA has developed additional guidance
on the use of institutional controls for
federal facilities being transferred under
CERCLA 120 (h) (3).7 This guidance
establishes the criteria that a federal
facility must demonstrate to EPA in order
for EPA to make the determination that a
remedy is “operating properly and
successfully.” This guidance applies to all
federal facilities where institutional
controls are part of the selected remedy
and the federal agency is planning on
transferring that property to a non-federal
entity. It does not address whether or
not an institutional control is an
appropriate remedy or remedy
component for a particular site; however,
it does state that if the institutional control
can not meet the criteria set forth in the
guidance, then the use of institutional
controls should be reconsidered. The
criteria set forth in the guidance are
summarized in Exhibit 2-2.Exhibit 2-1
CERCLA “Operating Properly and Successfully”
Determinations
CERCLA states that, for purposes of the covenant, all
necessary remedial action has been taken if (a) the
construction and installation of the approved remedial design
has been completed and (b) the federal agency demonstrated
to EPA that the remedy was “operating properly and
successfully.”
A remedy is operating “properly” if it is operating as
designed. A remedy is operating “successfully” if its
operation will achieve the cleanup goals specified in the
record of decision and it will be protective of human health
and the environment.*
In certain circumstances, CERCLA allows the federal agency
to transfer property before all necessary remedial action has
been taken. This early transfer can take place if the EPA or
state governor (depending on the site’s NPL status) makes
the following findings:
• the property is suitable for transfer based on the
intended use;
• the deed provides for necessary use restrictions and
response and remedial actions;
• the public has been informed of the early transfer
request; and
• the transfer will not substantially delay response
action at the site. **
* US EPA, Office of Solid Waste and Emergency Response,
Guidance for Evaluation of Federal Agency Demonstrations
that Remedial Actions are Operating Properly and
Successfully Under CERCLA Section 120(h)(3), August
1996 (interim draft).Exhibit 2-2
Criteria for Institutional Controls
at Federal Facilities Being Transferred
Under CERCLA 120 (h)
• A legal description of the real property.
• A description of the anticipated future use(s) for the
site.
• Identification of the residual hazard or risk.
• The specific institutional control language in
substantially the same form as it will appear in the
transfer document and a description of the institutional
controls and the legal authority for the implementation
of these controls.
• A statement explaining, in the professional opinion of
the transferring agency, that the institutional controls
have been or will be established in conformance with
the legal requirements and how they will be enforceable
against future transferees and successors.
• A description of who will be responsible for monitoring
and the frequency of monitoring.
• A description of the procedure that will be used to
report violations or failures of institutional controls.
• A description of the procedure that will be used to
enforce against violations.
• Assurance that the transferring federal agency will
verify maintenance of the institutional control on a
periodic basis.Federal Land Use Laws
Regardless of which regulatory framework results in institutional controls being selected as part of a
remedy, federal land use laws will affect the use of institutional controls if the land is going to be re-used
by some organization or agency other than DOE, or if the land will be leased, sold, or granted to other
parties.
The DOE can allow re-use of land under the AEA, the DOE Organization Act, or the Hall Amendment
(an amendment to the DOE Organization Act) but each of these three vehicles imposes certain
restrictions. If the area or site that will require institutional controls is being considered for re-use by
any organization other than DOE, the DOE-certified realty specialist should be contacted to determine
the site’s legal status and to clarify how the use of institutional controls may be affected. An in depth
discussion of the impacts of each of these land-transfer vehicles is available in “Resourceful Reuse: A
Guide to Planning Future Land Uses of Department of Energy Sites.”
When DOE does sell or grant land, it retains “ultimate responsibility for monitoring, maintaining and
enforcing the institutional controls” associated with the land.17 This on-going liability for the
effectiveness of institutional controls makes it imperative for ERPMs to fully understand the institutional
controls available to them and the responsibilities inherent in their use if property will be transferred.
Legal Status of Land
The methods available to DOE for re-using land depend on how DOE initially obtained use of the land.
Almost all of the land used by DOE can be categorized by its legal status as either acquired or
withdrawn land. Acquired land was land originally purchased by DOE from private owners.
Withdrawn land is land that is held in the public domain but reserved by the Department of the Interior
(DOI) for a federal agency such as DOE.
Under the Federal Land Policy and Management Act, withdrawn land that is excess to DOE is
relinquished to the DOI to be returned to the public domain. Withdrawn land that is temporarily not
needed by DOE can be leased with DOI approval.
When acquired land is excess to DOE, the Department reports that land use status to the General
Services Administration (GSA) for GSA disposition of the land. The procedure for reporting excess
acquired land is spelled out in the Federal Property and Administrative Services Act and its
accompanying legislation. However, DOE can also dispose of the land under the authority of its
enabling legislation. The Department can also lease acquired land if it is temporarily not needed.16 “In the event radioactive decay cannot result in acceptable risk levels within a reasonable and
acceptable period of time, then either an alternative action must be chosen that will accomplish that risk reduction, or
the ROD must include arrangements for long-term institutional controls” as per the Tennessee Guidance Policy on
Perpetual Institutional Controls. State of Tennessee, January 21, 1998, Tennessee Guidance Policy on Natural
Attenuation and ARAR Waivers for Oak Ridge Reservation CERCLA Decisions.
17 U.S. Environmental Protection Agency, Institutional Controls and Transfer of Real Property under
CERCLA Section 120 (h)(3)(A), (B), or (C), February 2000I. Introduction
Background
In 1980, Congress enacted the Comprehensive Environmental Response, Compensation, and Liability Act, 42 U.S.C. 9601-9657 ("CERCLA" or "the Act") in response to the dangers of uncontrolled or abandoned hazardous waste sites. CERCLA was amended on October 17, 1986, by the Superfund Amendments and Reauthorization Act ("SARA"), Public Law No. 99-499, stat. 1613 et seq . To implement CERCLA, the Environmental Protection Agency ("EPA" or "the Agency") promulgated the revised National Oil and Hazardous Substances Pollution Contingency Plan ("NCP"), 40 CFR part 300, on July 16, 1982 (47 FR 31180), pursuant to CERCLA section 105 and Executive Order 12316 (46 FR 42237, August 20, 1981). The NCP further revised by EPA on September l6, 1985 (50 FR 37624) and November 20, 1985 (50 FR 47912), sets forth the guidelines and procedures needed to respond under CERCLA to releases and threatened releases of hazardous substances, pollutants, or contaminants. On December 21, 1988 (53 FR 51394), EPA proposed revisions to the NCP in response to SARA.
Section 105(a)(8)(A) of CERCLA, as amended by SARA, requires that the NCP include "criteria for determining priorities among releases or threatened releases throughout the United States for the purpose of taking remedial action and, to the extent practicable, taking into account the potential urgency of such action, for the purpose of taking removal action." The discussion below may refer to "releases or threatened releases" simply as "releases," "facilities," or "sites." Removal action involves cleanup or other measures that are taken in response to emergency conditions or on a short-term or temporary basis (CERCLA section 101(23)). Remedial action tends to be long-term in nature and involves response actions that are consistent with a permanent remedy for a release (CERCLA section 101(24)). Criteria for determining priorities for possible remedial actions financed by the Trust Fund established under CERCLA are included in the Hazard Ranking System ("HRS"), which EPA promulgated as Appendix A of the NCP (47 FR 31219, July 16, 1982). On December 23, 1988 (53 FR 51962), EPA proposed revisions to the HRS in response to CERCLA section 105(c), added by SARA.
In addition to the application of the HRS, there are two other mechanisms for listing sites on the NPL. Under CERCLA section 105(a)(8)(B), each State may designate a single site as its top priority, regardless of the HRS score. According to 40 CFR 300.66(b)(4) of the NCP, the Agency also may list sites if the Agency for Toxic Substances and Disease Registry (ATSDR) recommends dissociation of individuals from the release; if EPA determines that the release poses a significant public health threat; and if EPA anticipates that it would be more cost-effective to use remedial rather than removal authorities for cleanup. The three mechanisms are described in more detail in section III of this preamble.
Based in large part on the HRS listing mechanism and pursuant to section 105(a)(8)(B) of CERCLA, as amended by SARA, EPA prepared a list of national priorities among the known releases or threatened releases of hazardous substances, pollutants, or contaminants throughout the United States. The list, which is Appendix B of the NCP, is the National Priorities List ("NPL"). CERCLA section 105(a)(8)(B) also requires that the NPL be revised at least annually. A site can undergo CERCLA-financed remedial action only after it is placed on the final NPL, as provided in the NCP at 40 CFR 300.66(c)(2) and 300.68(a).
An original NPL of 406 sites was promulgated on September 8, 1983 (48 FR 40658). The NPL has been expanded since then, most recently on October 4, 1989 (54 FR 41000/41015). The Agency also has published a number of proposed rulemakings to add sites to the NPL, most recently October 26, 1989 (54 FR 43778).
EPA may delete sites from the NPL where no further response is appropriate, as explained in the NCP at 40 CFR 300.66(c)(7). To date, the Agency has deleted 28 sites from the final NPL, most recently on September 22, 1989 (54 FR 38994) when Cecil Lindsey, Newport, Arkansas, was deleted.
This rule adds two sites and 27 Federal facility sites to the NPL, and expands the definition of 1 previously listed Federal facility site. The two non-Federal sites were proposed to the NPL pursuant to § 300.66(b)(4) of the NCP (August 16, 1989, 54 FR 33846). The comment period for that rule ended on September 15, 1989. The 27 Federal facilities were proposed to the NPL, on the basis of their HRS scores, on July 14, 1989 (54 FR 29820), as was the expansion of the definition of 1 listed Federal facility site. The comment period for that rule ended on September 12, 1989. The other Federal facility sites in the July 1989 proposed rule will be addressed in future final rules.
EPA read all comments received on the sites in today's final rule, including late comments. In past rules, EPA responded even to late comments. However, because of the need to make final decisions on all currently proposed sites prior to the date that the revised HRS takes effect, EPA was not able to respond to all late comments received for sites in this rule. (EPA had previously indicated that it may no longer be able to consider late comments (53 FR 23990, June 24, 1988 and 54 FR 19527, May 5, 1989).) In section V of this preamble, EPA addresses those comments received no later than October 11, 1989 for all sites included in this final rule. Although EPA has not responded to all late comments, it has read all late comments. The Agency has determined that none of the late comments received to date on the sites in today's final rule have brought to EPA's attention a fundamental error in the scoring of a site.
This rule results in a final NPL of 1,010 sites, 79 of them in the Federal section. In addition, 209 sites are currently in proposed status, 38 of them in the Federal section. With these changes, final and proposed sites now total 1,219.
EPA may include on the NPL sites at which there are or have been releases or threatened releases of hazardous substances, pollutants, or contaminants.
Information Available to the Public
The Headquarters and Regional public dockets for the NPL contain documents relating to the listing of these sites (see Addresses portion of this notice). Appointments should be made to view these dockets. The hours of operation for the Headquarters docket are from 9 a.m. to 4 p.m., Monday through Friday excluding Federal holidays. The hours of operation for the Regional dockets are generally from 8 a.m. to 5 p.m., Monday through Friday excluding Federal holidays.
The Headquarters docket for the Federal facility sites added by this rule include the following documents: HRS score sheets; a Documentation Record describing the information used to compute the score; a list of documents referenced in the Documentation Record; and public comments received. The Headquarters docket for the two non-Federal sites contains the same documents in addition to, for each site, a Public Health Advisory issued by ATSDR, and an EPA memorandum addressing for each site, whether the release poses a significant threat to public health and whether it would be more cost-effective to use remedial rather than removal authorities at the sites.
The Regional docket includes all information available in the Headquarters docket, as well as the reference documents, which contain the data EPA relied upon in calculating or evaluating the HRS scores for these sites.
Copies of documents contained in the Headquarters or Regional dockets may be obtained by informal written request addressed to the appropriate docket contact as specified in the Addresses section of this preamble.
II. Purpose and Implementation of the NPL
Purpose
The primary purpose of the NPL is stated in the legislative history of CERCLA (Report of the Committee on Environment and Public Works, Senate Report No. 96-848, 96th Cong., 2d Sess. 60 (1980)):
The priority lists serve primarily informational purposes, identifying for the States and the public those facilities and sites or other releases which appear to warrant remedial actions. Inclusion of a facility or site on the list does not in itself reflect a judgment of the activities of its owner or operator, it does not require those persons to undertake any action, nor does it assign liability to any person. Subsequent government actions in the form of remedial actions or enforcement actions will be necessary in order to do so, and these actions will be attended by all appropriate procedural safeguards.The purpose of the NPL, therefore, is primarily to serve as an informational and management tool. The identification of a site for the NPL assists EPA in determining which sites warrant further investigation to assess the nature and extent of the public health and environmental risks associated with the site and to determine what CERCLA- financed remedial action(s), if any, may be appropriate. The NPL also serves to notify the public of sites that EPA believes warrant further investigation.
Implementation
As outlined in the NCP at 40 CFR 300.66(c)(2) and 300.68(a), Trust Fund monies can be spent for remedial actions only at sites that have been placed on the final NPL. However, EPA may take enforcement actions under CERCLA or other applicable statutes against responsible parties regardless of whether the site is on the NPL, although, as a practical matter, the focus of EPA's CERCLA enforcement actions has been and will continue to be on NPL sites. Similarly, in the case of CERCLA removal actions, EPA has the authority to act at any site, whether listed or not, that meets the criteria of the NCP at 40 CFR 300.65-300.67.
EPA's policy is to pursue cleanup of NPL sites using the appropriate response and/or enforcement actions available to the Agency, including authorities other than CERCLA. Listing a site will serve as notice to any potentially responsible party that the Agency may initiate CERCLA-financed remedial action. The Agency will decide on a site-by-site basis whether to take enforcement or other action under CERCLA or other authorities, proceed directly with CERCLA-financed response actions and seek to recover response costs after cleanup, or do both. To the extent feasible, once sites are on the NPL, EPA will determine high-priority candidates for Superfund-financed response action and/or enforcement action through both State and Federal initiatives. These determinations will take into account which approach is more likely to most expeditiously accomplish cleanup of the site while using CERCLA's limited resources as efficiently as possible.
Remedial response actions will not necessarily be funded in the same order as a site's ranking on the NPL. Most sites are listed in the order of their HRS scores, and the Agency has recognized that the information collected to develop HRS scores is not sufficient in itself to determine either the extent of contamination or the appropriate response for a particular site. EPA relies on further, more detailed studies in the remedial investigation/feasibility study (RI/FS) to address these concerns.
The RI/FS determines the nature and extent of the threat presented by the contamination (40 CFR 300.68(d)). Specifically, it evaluates the amount of contaminants in the environment, the risk to affected populations and environment, the cost to correct problems at the site, and the response actions that have been taken by potentially responsible parties or others. Decisions on the type and extent of action to be taken at these sites are made in accordance with the criteria contained in subpart F of the NCP. After conducting these additional studies, EPA may conclude that it is not desirable to initiate a CERCLA remedial action at some sites on the NPL because of more pressing needs at other sites, or because a private party cleanup is already underway pursuant to an enforcement action. Given the limited resources available in the Trust Fund, the Agency must carefully balance the relative needs for response at the numerous sites it has studied. It also is possible that EPA will conclude, after further analysis, that the site does not warrant remedial action. Federal facility sites are eligible for the NPL pursuant to the NCP at 40 CFR 300.66(c)(2). However, section 111(e)(3) of CERCLA, as amended by SARA, limits the expenditure of CERCLA monies at Federally-owned facilities. Federal facility sites also are subject to the requirements of CERCLA section 120, added by SARA.
III. NPL Update Process
There are three mechanisms for placing sites on the NPL. The principal mechanism is the application of the HRS. The HRS serves as an objective screening device to evaluate the relative potential of uncontrolled hazardous substances to cause human health or safety problems, or ecological or environmental damage. The HRS score represents an estimate of the relative "probability and magnitude of harm to the human population or sensitive environment from exposure to hazardous substances as a result of the contamination of ground water, surface water, or air" (47 FR 31180, July 16, 1982). Sites that score 28.50 or greater on the HRS are eligible for the NPL.
Under the second mechanism for adding sites to the NPL, each State may designate a single site as its top priority, regardless of the HRS score. This mechanism is provided by section 105(a)(8)(B) of CERCLA, as amended by SARA, which requires that, to the extent practicable, the NPL include within the 100 highest priorities, one facility designated by each State representing the greatest danger to public health, welfare, or the environment among known facilities in the State.
The third mechanism for listing, included in the NCP at 40 CFR 300.66(b)(4) (50 FR 37624-28, September 16, 1985), allows certain sites with HRS scores below 28.50 to be eligible for the NPL if all of the following occur:
The Agency for Toxic Substances and Disease Registry (ATSDR) of the U.S. Department of Health and Human Services issues a health advisory that recommends dissociation of individuals from the release.
EPA determines that the release poses a significant threat to public health.
EPA anticipates that it will be more cost-effective to use its remedial authority than to use its removal authority to respond to the release.
The third mechanism was added to the NCP by rulemaking, during which the Agency explained that the HRS may not fully reflect the risk at certain types of sites. For example, direct contact is not included in calculating the total HRS score. Thus, some sites involving direct contact to residents may pose a serious threat but not receive a sufficiently high score to qualify for the NPL. Similarly, where a small number of people are exposed to a hazardous substance, the site may fail to qualify for listing due to the low targets score.
States have the primary responsibility for identifying non-Federal sites, computing HRS scores, and submitting candidate sites to the EPA Regional Offices. EPA Regional Offices conduct a quality control review of the States candidate sites, and may assist in investigating, sampling, monitoring, and scoring sites. Regional Offices also may consider candidate sites in addition to those submitted by States.
Federal agencies have the primary responsibility under CERCLA section 120(C) for identifying Federal facility sites. In conjunction with EPA Regional offices, the Federal agencies perform investigations, sampling, monitoring, and scoring of sites. Regional offices then conduct a quality control review of the candidate sites. EPA Headquarters conducts further quality assurance audits to ensure accuracy and consistency among the various EPA and State offices participating in the scoring. The Agency then proposes the sites that meet one of the three criteria for listing (and EPA's listing policies) and solicits public comment on the proposal. Based on these comments and further review by EPA, the Agency determines final HRS scores and places those sites that still qualify on the final NPL.
IV. Contents Of This Final Rule
This rule adds to the final NPL Radium Chemical Co. Inc., in Woodside, Queens Borough, New York City, New York, and the Forest Glen Mobile Home Subdivision in Niagara Falls, New York. Both were proposed to the NPL on August 16, 1989 (54 FR 33846) based upon § 300.66(b)(4) of the NCP (54 FR 33846). The comment period for these sites ended on September 15, 1989. EPA addresses two comments received regarding one of these sites in Section V of this preamble. A description of these two sites was included in the proposed rule (54 FR 33846, August 16, 1989).
This rule also adds 27 Federal facility sites to the NPL, and finalizes the expansion of the definition of another previously listed Federal facility site. The comment period for these sites ended on September 12, 1989. EPA addresses comments received by October 11, 1989, on these Federal facility sites in section V of this preamble. A brief discussion of the Federal facility expansion is provided below. Table 1 lists sites added to the NPL by this rule. Other Federal facility sites proposed in July 1989 will be addressed in future final rules.
Mather Air Force Base
The Mather Air Force Base (AC&W Disposal Area) located in Sacramento, California, was proposed to the NPL on October 15, 1984 (49 FR 40320) and was listed on July 22, 1987 (52 FR 27620). On July 14, 1989 (54 FR 29822), the Agency proposed to expand the site definition at this facility because it believed that additional areas of the facility were contributing to contamination of the aquifer, and possibly to off-site contamination. At this time, the site is being expanded and renamed "Mather Air Force Base."
Having proven our ability to successfully restore contaminated property at many Superfund sites, generally, EPA's preference is to address the risks posed by the contamination by using well-designed methods of cleanup which allow people to remain safely in their homes and businesses.
Table 1
National Priorities List, Federal Facility Sites, New Final (by Group), November 1989
NPL Gr 1 ST Site Name City/county2
3
4
4
5
5
5
6
7
7
8
8
10
11
11
12
13
13
14
14
16
16
16
16
17
18
18OH
WA
ID
TN
CA
AK
SC
MA
GA
CO
FL
MA
NY
AZ
CA
UT
WA
OH
RI
CA
RI
FL
FL
CA
MN
NY
CAFeed Materials Prod Cent (USDOE)
Bonneville Power Adm Ross (USDOE)
Idaho National Engin Lab (USDOE)
Oak Ridge Reservation (USDOE)
Treasure Island Nav Sta-Hun Pt An.
Eielson Air Force Base
Savannah River Site (USDOE)
Otis Air Nat Guard/Camp Edwards
Marine Corps Logistics Base
Air Force Plant PJKS
Pensacola Naval Air Station
Fort Devens
Brookhaven National Lab (USDOE)
Williams Air Force Base
Barstow Marine Corps Logist Base
Monticello Mill Tailings (USDOE)
Ft. Lewis Logistics Center
Mound Plant (USDOE)
Davisville Naval Constr Batt Center
Camp Pendleton Marine Corps Base
Newport Naval Educat/Training Center
Jacksonville Naval Air Station
Cecil Field Naval Air Station
March Air Force Base
Naval Industrial Reserve Ordnance
Plattsburgh Air Force Base
Travis Air Force BaseFernald
Vancouver
Idaho Falls
Oak Ridge
San Francisco
Fairbanks N Star Bor
Aiken
Falmouth
Albany
Waterton
Pensacola
Fort Devens
Upton
Chandler
Barstow
Monticello
Tillicum
Miamisburg
North Kingstown
San Diego County
Newport
Jacksonville
Jacksonville
Riverside
Fridley
Plattsburgh
Solano County
Number of New Final Federal Facility Sites: 27. 1 Sites are placed in groups (Gr) corresponding to groups of 50 on the final NPL. Table 2
National Priorities List, New Final Sites (by Rank), November 1989
NPL Gr 1 NPL Rank StateSite Name City/County 19
19930
931NY
NYForest Glen Mobile Home Subdivision
Radium Chemical Co., IncNiagra Falls
New York City
Number of New Final Sites: 2. 1 Sites are placed in groups (Gr) corresponding to groups of 50 on the final NPL. The NPL, which is Appendix B of the NCP, and which appears after this preamble, is arranged by HRS scores and is presented in groups of 50 to emphasize that minor differences in scores do not necessarily represent significantly different levels of risk. The two sites listed pursuant to § 300.66(b)(4) of the NCP have HRS scores below 28.50 and are included in the last group on the NPL.
V. Response to Comments
EPA received two comments in favor of listing Radium Chemical Co., Inc. These comments resulted in no change in the HRS score for the site or the Agency's determination that the criteria given at § 300.66(b)(4) of the NCP have been met. No comments were received for the Forest Glen Mobile Home Subdivision.
With respect to the 28 Federal facility sites addressed by this rule, EPA received several comments in support of the listing of Otis Air National Guard Base/Camp Edwards in Falmouth, Massachusetts, Barstow Marine Corps Logistic Base in Barstow, California, and Idaho National Engineering Laboratory in Idaho Falls, Idaho. Some of these comments also included suggestions for cleanup or enforcement strategies. While the Agency appreciates these comments, they are not germane to listing these sites, and so will not be addressed at this time. No timely comments were received regarding the other Federal facility sites in today's final rule.
VI. Regulatory Impact Analysis
The costs of cleanup that may be taken at sites are not directly attributable to listing on the NPL, as explained below. Therefore, the Agency has determined that this rulemaking is not a "major" regulation under Executive Order 12291. EPA has conducted a preliminary analysis of the economic implications of today's final rule to add two new non-Federal sites and 27 Federal facility sites to the NPL, and finds that the kinds of economic effects associated with this revision are generally similar to those identified in the regulatory impact analysis (RIA) prepared in 1982 for revisions to the NCP pursuant to section 105 of CERCLA (47 FR 31180, July 16, 1982) and the economic analysis prepared when amendments to the NCP were proposed (50 FR 5882, February 12, 1985). This rule was submitted to the Office of Management and Budget for review as required by Executive Order 12291.
Costs
EPA has determined that this rulemaking is not a "major" regulation under Executive Order 12291 because inclusion of a site on the NPL does not itself impose any costs. It does not establish that EPA necessarily will undertake remedial action, nor does it require any action by a private party or determine its liability for site response costs. Costs that arise out of site responses result from site-by-site decisions about what actions to take, not directly from the act of listing itself. Nonetheless, it is useful to consider the costs associated with responding to the sites included in this rulemaking.
The major events that follow the listing of a site on the NPL include a search for potentially responsible parties and a remedial investigation/feasibility study (RI/FS) to determine if remedial actions will be undertaken at a site. Design and construction of the selected remedial alternatives follow completion of the RI/FS, and operation and maintenance (O&M) activities may continue after construction has been completed.
EPA initially bears the costs associated with responsible party searches. Responsible parties may bear some or all of the costs of the RI/FS, remedial design and construction, and O&M, or EPA and the States may share costs.
The State cost share for site cleanup activities has been amended by section 104 of SARA. For privately-owned sites as well as for publicly-owned but not publicly-operated sites, EPA will pay for 100% of the costs of the RI/FS and remedial planning, and 90% of the costs associated with remedial action. The State will be responsible for 10% of the remedial action. For publicly-operated sites, the State will pay for at least 50% of all response costs at the site, including the RI/FS and remedial design and construction of the remedial action selected. After the remedy is implemented, costs fall into two categories:
For restoration of ground water and surface water, EPA will share in startup costs according to the criteria in the previous paragraph for 10 years or until a sufficient level of protectiveness is achieved before the end of 10 years.
For other cleanups, EPA will share for up to 1 year the cost of that portion of response needed to assure that a remedy is operational and functional. After that, the State assumes full responsibilities for O&M.
In previous NPL rulemakings, the Agency estimated the costs associated with these activities (RI/FS, remedial design, remedial action, and O&M) on an average total cost per site basis. EPA will continue with this approach, using the most recent cost estimates available (1988). These estimates are presented below. However, there is wide variation in costs for individual sites, depending on the amount, type, and extent of contamination. Additionally, EPA is unable to predict what portions of the total costs responsible parties will bear since the distribution of costs depends on the extent of voluntary and negotiated response and the success of any cost-recovery actions.
Cost category Average total cost per site 1 RI/FS 1,100,000 Remedial Design 750,000 Remedial Action 13,500,000 2 Net present value of O&M 3 3,770,000 2
Source: Office of Program Management, Office of Superfund Remediation Technology Innovation, U.S. EPA. 1 1988 U.S. Dollars.
2 Includes State cost-share.
3 Assumes cost of O&M over 30 years, $400,000 for the first year and 10% discount rate.Costs to States associated with today's rule arise from the required State cost-share of:
10% of remedial actions and 10% of first-year O&M costs at privately-owned sites and sites that are publicly-owned but not publicly operated; and
at least 50% of the remedial planning (RI/FS and remedial design), remedial action, and first-year O&M costs at publicly-operated sites.
The State will assume the costs generated by O&M, following EPA's period of participation. The Radium Chemical Company Site and the Forest Glen Mobile Home Subdivision Site are both privately-owned. Therefore, using the budget projections presented above, State costs arising from Federal remedial planning and action, excluding O&M costs, can be expected to reach approximately $2.5 million. State O&M costs cannot be accurately determined because EPA, as noted above, will share O&M costs for up to 10 years for restoration of ground water and surface water, and it is not known if these sites will require this treatment and for how long. However, based on past experience, EPA believes a reasonable estimate is that it will share startup costs for up to 10 years at 25% of sites.
Placing a hazardous waste site on the NPL does not itself cause firms responsible for the site to bear cleanup costs. Nonetheless, a listing may induce firms to clean up the sites voluntarily, or it may act as a potential trigger for subsequent enforcement or cost recovery actions. Such actions may impose costs on firms, but the decision to take such actions are discretionary and made solely on a case-by-case basis. Consequently, precise estimates of these effects cannot be made. EPA does not believe that every site will be cleaned up by a responsible party. EPA cannot project at this time which firms or industry sectors will bear specific portions of the response costs, but the Agency considers: the volume and nature of the waste at the site; the strength of the evidence linking the wastes at the site to the parties; the parties' ability to pay; and other factors when deciding whether and how to proceed against the parties.
Economy-wide effects of this amendment to the NCP are aggregations of effects on firms and State and local governments. Although effects could be felt by some individual firms and States, the total impact of this final rule on output, prices, and employment is expected to be negligible at the national level, as was the case in the 1982 RIA.
Benefits
The benefits associated with adding two sites and 27 Federal facility sites to the NPL are increased health and environmental protection as a result of increased public awareness of potential hazards. In addition to the potential for more Federally-financed remedial actions, expansion of the NPL can accelerate privately-financed, voluntary cleanup efforts. Identifying sites as national priority targets also may give States increased support for funding responses at particular sites.
As a result of additional CERCLA remedies, there will be lower human exposure to high-risk chemicals, and higher-quality surface water, ground water, soil, and air. These benefits are expected to be significant, although difficult to estimate in advance of completing the RI/FS at these sites.
VII. Regulatory Flexibility Act Analysis
The Regulatory Flexibility Act of 1980 requires EPA to review the impacts of this action on small entities, or certify that the action will not have a significant impact on a substantial number of small entities. By small entities, the Act refers to small businesses, small government jurisdictions, and nonprofit organizations.
While these modifications to the NPL are considered revisions to the NCP, they are not typical regulatory changes since the revisions do not automatically impose costs. Placing sites on the NPL does not in itself require any action by any private party, nor does it determine the liability of any party for the cost of cleanup at the site. Further, no identifiable groups are affected as a whole. As a consequence, it is hard to predict impacts on any group. A site's inclusion on the NPL could increase the likelihood that adverse impacts to responsible parties (in the form of cleanup costs) will occur, but EPA cannot identify the potentially affected business at this time nor estimate the number of small businesses that might be affected.
The Agency does expect that certain industries and firms within industries that have caused a proportionately high percentage of waste site problems could be significantly affected by CERCLA actions. However, EPA does not expect the impacts from the listing of these sites to have a significant economic impact on a substantial number of small businesses.
In any case, economic impacts would only occur through enforcement and cost-recovery actions, which are taken at EPA's discretion on a site-by-site basis. EPA considers many factors when determining what enforcement actions to take, including not only the firm's contribution to the problem, but also the firm's ability to pay.
The impacts (from cost recovery) on small governments and nonprofit organizations will be determined on similar case-by-case basis.
List of Subjects in 40 CFR Part 300Air pollution control, Chemicals, Hazardous materials, Intergovernmental relations, Natural resources, Oil pollution, Reporting and recordkeeping requirements, Superfund, Waste treatment and disposal, Water pollution control, Water supply.
Dated: November 14, 1989.
M. A. Gade,
Acting Assistant Administrator, Office of Solid Waste and Emergency Response.PART 300 - [AMENDED]
40 CFR part 300 is amended as follows:
1. The authority citation for part 300 continues to read as follows:
Authority: 42 U.S.C. 9605; 42 U.S.C. 9620; 33 U.S.C. 1321(c)(2); E.O. 11735 (38 FR 21243); E.O. 12580 (52 FR 2923).
[FR Doc. 89-27209 Filed 11-20-89; 8:45 am]
BILLING CODE 6560-50-M
A dynamic page generation error occurred
on the EPA's Web Server.
the Internet address of the missing file (ex. http://www.epa.gov/superfund/sites/query/queryhtm/nplfin.htm) and/or
the Internet address of the file containing the non-working links (ex. http://www.epa.gov/superfund/sites/query/queryhtm/nplfin.htm)
Also include the Internet address of the page from which you are linking. Please confirm the Internet address. This information will aid in expediting your request.
Thank you for your interest in the Environmental Protection Agency.
IRON MOUNTAIN MINE (EPA ID: CAD980498612)
Current human exposures at this site are under control
Activities Underway Activity Leading
OrganizationArea of Site
Addressed (OU)Start Date REMEDIAL ACTION
( see glossary )EPA Fund-Financed SEDIMENTS (05) 08/28/2008 POTENTIALLY RESPONSIBLE PARTY LONG-TERM RESPONSE ACTION
( see glossary )Responsible Party SLICKROCK CREEK AREA SOURCE (04) 09/24/2004 COMBINED REMEDIAL INVESTIGATION/FEASIBILITY STUDY
( see glossary )EPA Fund-Financed BOULDER CREEK AREA SOURCE (06) 09/29/1996 OPERATIONS AND MAINTENANCE
( see glossary )Responsible Party OLD/NO. 8 MINE SEEP (03) 09/15/1994 OPERATIONS AND MAINTENANCE
( see glossary )Responsible Party SOURCE CONTROL (02) 09/15/1994 OPERATIONS AND MAINTENANCE
( see glossary )Responsible Party WATER MANAGEMENT (01) 01/02/1991
GPRA Measures at IRON MOUNTAIN MINE (EPA ID: CAD980498612) The data and content on this page were last updated on Tuesday, January 04, 2011.
The Government Performance and Results Act (GPRA) is an EPA reform initiative that was passed in 1993 to hold federal agencies accountable for using resources wisely and achieving program results. GPRA requires agencies to develop plans for what they intend to accomplish, measure how well they are doing, make appropriate decisions based on the information they have gathered, and communicate information about their performance to Congress and to the public. EPA is required to report on the following Superfund measures under GPRA:
The chemical substances (i.e., hazardous substances, pollutants, or contaminants) listed below were identified as contaminants of concern (COC) for the site. COCs are the chemical substances found at the site that the EPA has determined pose an unacceptable risk to human health or the environment. These are the substances that are addressed by cleanup actions at the site. Identifying COCs is a process where the EPA identifies people and ecological resources that could be exposed to contamination found at the site, determines the amount and type of contaminants present, and identifies the possible negative human health or ecological effects that could result from contact with the contaminants.
The contaminants of concern at this site are sorted below by contaminant name. You may also sort this list by the area of the site on which it is found, called operable units (OUs) , or sort this list according to the media in which they were found (e.g. soil or ground water) .
see the glossary for definitions of contaminated media and operable units (OUs) >>CAS # Contaminant Name Contaminated
MediaArea of Site
Found (OU)More Information 7429-90-5 ALUMINUM (FUME OR DUST) Surface Water OLD/NO. 8 MINE SEEP (03) ATSDR Profile 7429-90-5 ALUMINUM (FUME OR DUST) Surface Water SLICKROCK CREEK AREA SOURCE (04) ATSDR Profile 7440-36-0 ANTIMONY Sediment SOURCE CONTROL (02) ATSDR Profile 7440-38-2 ARSENIC Sediment SOURCE CONTROL (02) ATSDR Profile 7440-38-2 ARSENIC Sediment SEDIMENTS (05) ATSDR Profile 7440-38-2 ARSENIC Surface Water SOURCE CONTROL (02) ATSDR Profile 7440-38-2 ARSENIC Surface Water OLD/NO. 8 MINE SEEP (03) ATSDR Profile 7440-38-2 ARSENIC Surface Water SLICKROCK CREEK AREA SOURCE (04) ATSDR Profile TBD-00000002 BASE NEUTRAL ACIDS Soil SOURCE CONTROL (02) TBD-00000002 BASE NEUTRAL ACIDS Solid Waste SOURCE CONTROL (02) 39638-32-9 CADMIUM Sediment SOURCE CONTROL (02) 39638-32-9 CADMIUM Sediment SEDIMENTS (05) 39638-32-9 CADMIUM Surface Water SOURCE CONTROL (02) 39638-32-9 CADMIUM Surface Water OLD/NO. 8 MINE SEEP (03) 39638-32-9 CADMIUM Surface Water SLICKROCK CREEK AREA SOURCE (04) 7440-43-9 CADMIUM Surface Water WATER MANAGEMENT (01) ATSDR Profile 7440-50-8 COPPER Sediment SOURCE CONTROL (02) ATSDR Profile 7440-50-8 COPPER Sediment SEDIMENTS (05) ATSDR Profile 7440-50-8 COPPER Surface Water WATER MANAGEMENT (01) ATSDR Profile 7440-50-8 COPPER Surface Water SOURCE CONTROL (02) ATSDR Profile 7440-50-8 COPPER Surface Water OLD/NO. 8 MINE SEEP (03) ATSDR Profile 7440-50-8 COPPER Surface Water SLICKROCK CREEK AREA SOURCE (04) ATSDR Profile 7439-89-6 IRON Sediment SEDIMENTS (05) 7439-92-1 LEAD Surface Water SOURCE CONTROL (02) ATSDR Profile 7439-92-1 LEAD, INORGANIC Sediment SOURCE CONTROL (02) ATSDR Profile 7439-92-1 LEAD, INORGANIC Surface Water SOURCE CONTROL (02) ATSDR Profile 7439-97-6 MERCURY Sediment SOURCE CONTROL (02) ATSDR Profile 7439-97-6 MERCURY Surface Water SOURCE CONTROL (02) ATSDR Profile 7440-02-0 NICKEL Sediment SEDIMENTS (05) ATSDR Profile 7440-22-4 SILVER Sediment SOURCE CONTROL (02) ATSDR Profile 7440-22-4 SILVER Surface Water SOURCE CONTROL (02) ATSDR Profile 7440-28-0 THALLIUM Sediment SOURCE CONTROL (02) ATSDR Profile 7440-28-0 THALLIUM Surface Water SOURCE CONTROL (02) ATSDR Profile 7440-31-5 TIN Surface Water SOURCE CONTROL (02) ATSDR Profile 7440-66-6 ZINC Sediment SOURCE CONTROL (02) ATSDR Profile 7440-66-6 ZINC Sediment SEDIMENTS (05) ATSDR Profile 7440-66-6 ZINC Surface Water WATER MANAGEMENT (01) ATSDR Profile 7440-66-6 ZINC Surface Water SOURCE CONTROL (02) ATSDR Profile 7440-66-6 ZINC Surface Water OLD/NO. 8 MINE SEEP (03) ATSDR Profile 7440-66-6 ZINC Surface Water SLICKROCK CREEK AREA SOURCE (04) ATSDR Profile motion to compel complete discovery under Rule 37
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.
Construction Complete
No
Site-Wide Ready for Anticipated Use
No Purpose and Implementation of the NPL
Purpose
The primary purpose of the NPL is stated in the legislative history of CERCLA (Report of the Committee on Environment and Public Works, Senate Report No. 96-848, 96th Cong., 2d Sess. 60 (1980)):
The priority lists serve primarily informational purposes, identifying for the States and the public those facilities and sites or other releases which appear to warrant remedial actions. Inclusion of a facility or site on the list does not in itself reflect a judgment of the activities of its owner or operator, it does not require those persons to undertake any action, nor does it assign liability to any person. Subsequent government actions in the form of remedial actions or enforcement actions will be necessary in order to do so, and these actions will be attended by all appropriate procedural safeguards.Implementation
As outlined in the NCP at 40 CFR 300.66(c)(2) and 300.68(a), Trust Fund monies can be spent for remedial actions only at sites that have been placed on the final NPL. However, EPA may take enforcement actions under CERCLA or other applicable statutes against responsible parties regardless of whether the site is on the NPL, although, as a practical matter, the focus of EPA's CERCLA enforcement actions has been and will continue to be on NPL sites. Similarly, in the case of CERCLA removal actions, EPA has the authority to act at any site, whether listed or not, that meets the criteria of the NCP at 40 CFR 300.65-300.67.
NPL listing is not a general requirement under the NCP. We see the NPL as a limitation on remedial, or long-term, actions--as opposed to removal, or short-term, actions--particularly federally funded remedial actions. The provisions requiring the establishment of NPL criteria and listing appear to limit their own application to remedial actions. Section 9605(8)(A) requires EPA to include in the NCP "criteria for determining priorities among releases or threatened releases ... for the purpose of taking remedial action and, to the extent practicable taking into account the potential urgency of such action, for the purpose of taking removal action." And section 9605(8)(B), which requires EPA to draw up the NPL, refers to "priorities for remedial action." Accord 126 Cong.Rec. 30,933 (statement of Sen. Randolph), reprinted in 1 CERCLA Legislative History, supra, at 689; 40 C.F.R. Sec. 300.68(a) (1984). And section 9604, which authorizes and governs federal response actions, reveals the special role of the NPL for federally sponsored remedial actions. Section 9604(c)(3) states that federal remedial actions can be taken only if "the State in which the release occurs first enters into a contract or cooperative agreement" with the federal government, thus setting up a joint federal-state cost-sharing and cleanup effort. At the same time, section 9604(d)(1) states that such joint efforts must be taken "in accordance with criteria and priorities established pursuant to section 9605(8)"--the NPL provision. If the NPL criteria and listing were a general requirement for action "consistent with" the NCP, this language would be surplusage. See supra text accompanying note 18.
34CERCLA's legislative history also supports our conclusion. Congress did not intend listing on the NPL to be a requisite to all response actions. Neither the earlier House nor Senate version included the NPL in the NCP, see S.1480, 96th Cong., 2d Sess. Secs. 3(c)(5), 6(a)(2)(B), 126 Cong.Rec. 30,908, 30,913, reprinted in 1 CERCLA Legislative History, supra, at 482-84, 529-30; H.R.7020, 96th Cong., 2d Sess. Secs. 3032(b), 3042, 126 Cong.Rec. 26,775, 26,777, reprinted in 2 CERCLA Legislative History, supra, at 404, 420-23, although the Senate version limited joint federal-state responses to sites on the NPL, see S.1480, 96th Cong., 2d Sess. Sec. 6(a)(2)(B), 126 Cong.Rec. 30,913, reprinted in 1 CERCLA Legislative History, supra, at 529-30; see also Senate Report, supra, at 60 ("To receive reimbursement from the Fund, [joint federal-state] response actions may be undertaken only at facilities or sites which are in accordance with the national priority list...."), reprinted in 1 CERCLA Legislative History, supra, at 367. It is also instructive to note that the Senate Report described the NPL as serving "primarily informational purposes, identifying for the States and the public those facilities and sites or other releases which appear to warrant remedial actions." Id. (emphasis added). In reviewing the changes made by the compromise, no one mentioned that NPL listing would be a requirement for removal action or even a general requirement under the NCP.
35Moreover, limiting the scope of NPL listing as a requirement for response action is consistent with the purpose of CERCLA. The NPL is a relatively short list when compared with the huge number of hazardous waste facilities Congress sought to clean up. See 126 Cong.Rec. 30,931 (statement of Sen. Randolph), reprinted in 1 CERCLA Legislative History, supra, at 683-84; id. at 31,964 (statement of Rep. Florio), reprinted in 1 CERCLA Legislative History, supra, at 776. And it makes sense for the federal government to limit only those long-term--remedial--efforts that are federally funded. We hold that Congress intended that, while federally funded remedial efforts be focused solely on those sites on the NPL, states have more flexibility when acting on their own. See Pinole Point Properties, Inc. v. Bethlehem Steel Corp., 596 F.Supp. 283, 290 (N.D.Cal.1984).
EPA is authorized to take remedial or removal actions only if they are consistent with the NCP, Pub. L. No. 96-510, 5 104(a), 94 Stat. 2767, 2774, to be codified at 42 U.S.C. 5 9604(a). It can secure reimbursement of expenditures for remedial actions only if they are consistent with the NCP under 5 107(a) of Superfund. EPA's enforcement of Superfund is impliedly to be consistent with the NCP. See note 4, supra.
"Immediate removal, planned removal, and remedial actions are authorized for descending levels of imminence of hazard. Since there are differing restrictions on EPA's authority to act under each of these various levels, wrongful classification of imminence could result in unauthorized government action. See Pub. L. No. 96-510, 5 104,94 Stat. 2767,2774-79, to be codified at 42 U.S.C. 5 9604, and 40 C.F.R. 5G300.64 to .68,47 Fed. Reg. 31214-17 (July 16, 1982). "See note 15, supra and 40 C.F.R. 5 300.68(g)-(j), 47 Fed. Reg. 31217 (July 16, 1982).See 40 C.F.R. 4 300.69, 48 Fed. Reg. 31217-18 (July 16, 1982). 1°78 F.R.D. 214 (E.D. Wisc. 1978).
"See Portland Cement Ass'n v. Ruckelshaus, 486 F.2d 375, 369 (D.C. Cir. 1973). "See Amoco Oil Co. v. EPA, 502 F.2d 722, 743 (D.C. Cir. 1974)."United States v. Pennsylvania Engineering Chemical Corp., 411 U.S. 655 (1973), and United States v. Martin, 517 F. Supp. 21 1 (D.S.C. 1981). I4United States v. Cargill, Inc., 508 F. Supp. 734 (D. Del. 1981). "See Dept . of Justice, Principles of Federal Prosecution, pp. 1 1-12 (1980). I6Menzel v. County Utilities Corp., 501 F. Supp. 354 (E.D. Va. 1979).
"United States v. ITT Rayonier, Inc., 627 F.2d 997 (9th Cir. 1980). "See note 24, supra.Federal Facilities Streamlined Oversight Directive
PDF Version (12 pp, 327K, About PDF )
On this page
- Purpose
- Background
- Proposal
- Implementation
- Conclusion
- Attachment: Model FFA List of Primary and Secondary Documents
November 29, 1996
OSWER Directive No. 9230.0-75
MEMORANDUM
SUBJECT: Federal Facilities Streamlined Oversight Directive FROM: Jim Woolford, Director
Federal Facilities Restoration and Reuse Office, OSWER
Craig Hooks, Acting Director
Federal Facilities Enforcement Office, OECA TO: Director, Office of Site Remediation and Restoration, EPA - New England
Director, Emergency and Remedial Response Division, Region II
Director, Hazardous Waste Management Division, Regions III, IX
Director, Waste Management Division, Region IV
Director, Superfund Division, Regions V, VI, VII
Assistant Regional Administrator, Office of Ecosystems Protection and Remediation, Region VIII
Director, Environmental Cleanup Office, Region X
Regional Counsels, Regions I - XPurpose
On October 2, 1995, Administrator Browner announced several Superfund Reforms including one to reduce oversight activities at sites where there are cooperative private parties that are performing quality work. Consistent with this Reform, for federal facilities on the Superfund National Priorities List (NPL), we are pursuing a similar initiative to streamline our oversight activities.
EPA is responsible for overseeing the Superfund remedial activities at NPL federal facility sites. EPA's oversight is shaped by a variety of factors including statutory requirements, regulations, guidance, Federal Facility Agreements (FFA), Site Management Plans (SMP), and common practice. EPA's oversight activities of federal facilities include ensuring that, generally,work conducted by federal facilities is equivalent to work that EPA would conduct if that site were EPA-lead.
This Directive focuses on streamlining the regulatory oversight processes at federal facilities in a systematic, planned manner based on site-specific factors and general streamlining techniques. The intent of streamlining the oversight is to improve the efficiency and overall effectiveness of the oversight for the regulators and the federal facilities, while ensuring protection of human health and the environment. Additionally, a streamlined process may facilitate more effective community participation and involvement in the cleanup process by making the process more accessible to the public.
EPA Regions are already implementing components of streamlined oversight at several federal facilities. As such, the concepts described below are not new. What is required is a more systematic approach to ensure that EPA, federal agencies, states, and citizens impacted by contamination at federal facilities and associated activities secure benefits of a streamlined oversight approach. It is important to realize that the streamlined approach may not be applicable at each site or facility, but each facility should be evaluated for opportunities to streamline the oversight process.
Background
There are currently estimated to be more than 61,000 contaminated sites at over 2,000 federal facilities in the United States. As of June 1, 1996, there are 160 proposed and final federal facilities on the NPL. The Department of Defense (DoD) currently is responsible for about 82% of the federal facilities on the NPL. The Department of Energy (DOE) has 11%, but far more releases/sites on each of its facilities than does the military or other federal agencies (e.g., DOI, USDA, NASA). According to EPA's CERCLIS information system, there are currently over 450 ongoing Remedial Investigation/ Feasibility Studies (RI/FSs), over 100 Remedial Designs (RDs) and over 100 ongoing Remedial Actions (RAs). In parallel, there are also several time-critical and non time-critical removal actions ongoing. Regional programs may or may not be overseeing these removal actions.
Relative to federal facilities, the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, (CERCLA) as amended by the Superfund Amendments and Reauthorization Act of 1986 (SARA), provides the framework for Superfund federal facilities cleanup. Section 120(a) requires that federal facilities comply with CERCLA requirements to the same extent as private facilities. Section 120(d) sets forth requirements for facility site assessment, evaluation and NPL listing. Section 120(e) establishes remedial cleanup and cleanup agreement requirements.
Section 120(e) of CERCLA requires the federal facility to enter into a negotiated Interagency Agreement (IAG) with EPA within 180 days of EPA's review of the RI/FS. (As a matter of policy and where resources permit, EPA tries to negotiate the IAG after final listing on the NPL. In this context, the IAG is also known as a Federal Facility Agreement, and will be referred to as FFA in the text that follows.) Under CERCLA Section 120 and the FFA, EPA oversees all of the phases of remedial activity (RI/FS, RD, RA, operation and maintenance) to be undertaken at a federal facility NPL site. States are usually signatories to the FFA. The FFA provides the technical, legal, and management framework to conduct the federal facility activities. The FFA is an enforceable document and contains, among other things, a description of the remedy selection alternatives, procedures for submission and review of documents, schedules of cleanup activities, and provisions for dispute resolution.
In addition to EPA, the states and Indian tribes, as regulators, also may have an oversight role. The particulars of these roles are established in the FFA at each facility.
In 1988, after agreement from DoD and DOE, EPA issued model provisions for FFAs for DoD and DOE (Attachment) to guide the oversight relationship between the federal facilities and EPA. The model FFA identifies primary documents and secondary documents. In addition, a specific consultation process is outlined both with regard to EPA comments and federal facility response to comments on primary and secondary documents, as well as other aspects of the cleanup process.
Oversight activities traditionally involve the production of a document by a federal agency or their contractor, delivery of the document, EPA review and written comments, revision of the document, another round of review and comment, ultimately ending with Agency concurrence on the document. At times there are multiple rounds of comments and revisions to these documents. Specific time frames for review, comment and response to comment are usually laid out in the FFA. Analysis has revealed that more than half of the time spent on the RI/FS process may be involved in this comment and review process.
EPA's oversight at federal facilities consists of ensuring that the federal facilities comply with CERCLA, the National Contingency Plan (NCP), the signed FFA and other agreements; and other statutes, as appropriate (e.g., RCRA); assisting in the determination of cleanup remedies or potentially selecting the remedies; concurring that there is consistency with all relevant guidances and policies determined by EPA to be appropriate for the facility; and determining that decisions protect human health and the environment and are technically sound.
Additional EPA activities include promoting community involvement through the community advisory boards, providing Technical Assistance Grants (TAGs), providing technical advice and assistance (e.g., assisting in identifying and implementing the sampling strategies and analytical requirements), identifying cleanup actions that are not justified based on risk, reviewing design documents and federal agency pollution abatement plans, and resolving disputes regarding noncompliance.
There are several EPA and other agency initiatives that are designed to improve (i.e., modify, streamline, etc.) how cleanup and oversight of cleanup is performed at NPL sites. This Directive incorporates aspects of several of these initiatives, especially Superfund Accelerated Cleanup Model (SACM), Data Quality Objectives (DQO) Process, Reduced Federal Oversight at Superfund Sites with Cooperative and Capable Parties, Variable Oversight (a DoD pilot), Streamlined Approach for Environmental Restoration (SAFER, a DOE pilot). All of these initiatives address the interaction between regulators and federal facilities, with partnership and/or cooperation emphasized in the Reduced Oversight, Variable Oversight, and SAFER models. The SACM, DQO Approach, Variable Oversight, and SAFER initiatives in particular stress upfront planning and scoping to optimize remediation and data collection. This Directive builds on the Variable Oversight model with the emphasis on partnership, upfront scoping and planning, and streamlined document review but also includes principles from other initiatives.
Proposal
This guidance applies to all federal facilities on the NPL. It requires that EPA Regions evaluate opportunities for streamlining oversight of the remedial process for NPL federal facility sites and discusses key areas for process implementation. Where all parties agree on streamlining activities that will affect requirements and/or milestones in an existing FFA, changes to the FFA and/or the Site Management Plan (SMP) should be implemented, as appropriate.
Streamlining regulatory oversight will tailor requirements in a systematic, planned manner based on site-specific factors and streamlining approaches. These site-specific factors include the relationship among the federal facility, the regulators, and community; the complexity of the site cleanup; the current status of the cleanup; and the rate of progress that has been made. The streamlined process should improve the efficiency of both the oversight and the site cleanup actions, enhance public involvement by highlighting issues of greatest interest to the public, and ensure that these issues are not obscured by excessive paper and discussions of methodologies.
Problems with Current Process
For CERCLA cleanup activities, a framework of extensive government regulation and guidance (federal and/or state) outlines the cleanup process and the associated requirements. Although the regulations and guidance provide flexibility, it is not clear that full advantage is taken of the flexibility. The traditional oversight system tends to place heavy emphasis on end-of-process activities such as inspection, review, and comment of documents and deliverables, and not as much on early planning and collaborating. Many documents repeat the same information (e.g., site descriptions) that regulators will comment on time and time again. Significant time and money may be spent on generating more data and documents than necessary.
In addition, the large number and size of documents inhibits public participation as the general non-technical public is overwhelmed by the documents. One outcome of a streamlined process could be more effective public participation in the federal facility cleanup process. Many members of restoration advisory boards and site-specific advisory boards have indicated that streamlined documents are very desirable and will facilitate their participation.
Identifying Sites for Streamlining Oversight
This guidance applies to all NPL federal facility sites requiring EPA oversight. Effective immediately, the Regions should use the criteria below to identify those facilities or, as appropriate, sites on the facility, where the oversight can be streamlined without reducing the level of protection at the site. This evaluation should be done at every site where the federal facility is performing the RI/FS, the RD/RA, or the engineering evaluation/cost analysis (EE/CA) and response action for non-time critical removals. If a facility (or site) does not currently meet the criteria, the facility may be reconsidered at an appropriate later date for application of streamlined oversight.
The regulated federal agencies may propose possible sites as candidates for streamlined oversight. The Regions should work with the federal agencies to identify appropriate sites.
Criteria for Evaluating Federal Facility Sites
Cooperativeness/Compliance (Federal Facility/Agency Relationship)
Federal facility has agreed to reasonable time frames for completing site work (including deliverables), and has historically completed such work on a timely basis.
Federal facility has been and remains substantially in compliance with the terms of the FFA, other agreements, and environmental laws and regulations.
Federal facility follows through on commitments made to EPA.
Technical Capability (Based on Site Complexity)
Federal facility consistently produces technically sound documents.
The following are some additional criteria that should be considered when determining the appropriate oversight at a federal facility site.
Site-Based Criteria
The community has reason to believe additional oversight is necessary. In response, EPA may increase site monitoring. At a minimum, EPA should discuss with the federal facility and the affected community at the site the Agency's plan concerning the site.
At sites where the remedy involves a complex technical model, EPA may decide to carefully monitor all critical site work.
The severity of risk to human health or environment posed by the site will be considered in determining applicable oversight.
Implementation
EPA believes that at sites that may be amenable to streamlining oversight after applying the criteria above, Regions should work with the federal facilities, states, local governments, and communities, as appropriate, to develop an effective partnership in implementing this reform. The FFA and/or the SMP may also need to be revised to implement this reform but opportunities should be examined that will not require formal renegotiation. Streamlining the oversight activities should be implemented as soon as possible. This streamlining of monitoring activities should lead to a reduction in oversight costs and also decrease the time needed to complete that phase of the response action.
Opportunities for Streamlining Oversight
The following is a list of some activities that can be instituted, modified or streamlined, as appropriate, to facilitate streamlining the oversight and cleanup process. They are dependent on each other in that success in one area will increase the chances for success in the other areas. In particular, an effective working partnership lays the groundwork and fosters cooperation that leads to progress in the other areas. The activities can be separated into four broad categories although there is overlap between the categories. Activities that may be implemented include, but are not limited to:
Partnering
Developing partnerships among federal facility, EPA, state, tribes, and stakeholders
Early and Substantial Regulator Involvement
Engaging in installation-wide joint planning efforts
Developing common cleanup "vision" with goals and objectives
Participating in federal facility budget formulation and execution process
Establishing cleanup standards on the basis of existing and reasonably anticipated future land use as soon as possible in the remedial process
Improving scoping and planning
Optimizing the data review process
Utilizing computerized file/document transfer
Defining Each Regulator's Role
Clearly defining role of EPA and state in terms of oversight responsibilities including establishing a lead regulator, wherever possible
Eliminating or otherwise mitigating RCRA/CERCLA overlap
Developing appropriate side agreements to facilitate environmental restoration process (e.g., memorandum of understanding (MOU) with EPA Region, state, and the Defense Nuclear Facility Safety Board (DNFSB))
Streamlining Documentation and Review
Using standard operating procedures (SOPs) and standard document formats
Reducing production of documents by increasing the use of in-person meetings, briefings, and other communication methods to identify issues early on and resolve identified issues
Eliminating interim deliverables or milestones, where applicable, while continuing accountability to produce an acceptable end product
The FFA/SMP should incorporate the above activities to the extent practical depending on the site. These elements are not necessarily enforceable portions of the FFA.
Some of these activities are described below.
Partnership
One key to streamlining oversight is creating and then maintaining a framework for partnership between EPA, the federal facility, state, tribes and the community. The history of federal facilities cleanup has been one marked with considerable distrust between the communities, the regulators, and the federal facility. One outcome of this distrust was a need for extensive regulator and community oversight of cleanup activities. At some facilities, the atmosphere of distrust has changed or is being changed. At other facilities, much needs to be done and, in some cases, this section may not be appropriate for these facilities.
Creating and maintaining an effective working relationship often requires extensive interaction at both a site (RPM) level and at a Regional (supervisory) level. Additionally, training to support effective partnering is often required. Where this approach has been successfully implemented, the result has been to dramatically improve the cleanup process. Communication is key among partners. In addition to planned meetings, the use of informal and technology-assisted communication (e.g., telephone, e-mail, fax) is encouraged.
One goal of the partnership is to establish a long-term working relationship in which the parties can commit to up-front agreements designed to produce savings in terms of time and resources needed for cleanup. The participants work together to define the site problems and develop potential options for addressing the problems. The direction of investigation and cleanup work by a working partnership allows parties to focus on key issues that are critical and provides a means to resolve substantive issues prior to action. The partnership approach recognizes that there may be significant initial differences of opinion concerning decisions affecting site cleanup. The partnership should acknowledge that each individual is responsible for representing their agency. The ground rules require that the team agree on the goal, such as site remediation, and that consensus must be reached to achieve the agreed upon goal. The partnership promotes the building of trust and the confidence that important issues are addressed and resolved at appropriate times.
An effective partnership requires working relationship at all levels of the decision chain and a clear understanding of individual roles, scopes of authority, and responsibilities within each organization. Participants in partnerships must: communicate the workings of their organization, the decision-making process within their organization, and the boundaries of their authority; understand and respect each other's expectations and constraints; be empowered to make decisions within the scope of their authority, bring others to the table when necessary, and be supported by their organization; and be sufficiently trained and experienced to exercise professional judgment as appropriate to the needs of the site.
Early and Substantial Regulator Involvement
Develop Common "Vision" with Goals, Objectives and Priorities
Even without "partnering", it is generally productive to develop a common vision for the near-term to long-term future for the facility and related cleanup objectives, activities, and priorities. The vision may include concrete goals and objectives that direct the remediation efforts. The vision should be integral to the scoping and planning efforts for the site. It should be verified on a recurring basis that the scoping and planning and the progress at the site are consistent with the vision.
As part of developing this vision, EPA and other stakeholders need to continue to participate in the application and evaluation of the outcomes of DoD's and DOE's "relative risk" evaluation models. The results of these models are being used as the point of departure for establishing site cleanup priorities but other factors must be considered. EPA participation is critical to ensuring that our mission to protect human health and the environment is part of the prioritization process.
Budget Formulation and Execution Process
Consistent with the consensus principles and recommendations of the April 1996 Final Report of the Federal Facilities Environmental Restoration Dialogue Committee, EPA Regions should be actively engaged in the budget formulation and execution process surrounding DoD and DOE site cleanup activities. Such involvement facilitates EPA's understanding of how and why funding decisions are made and affords EPA the opportunity to influence these decisions. EPA's participation on the budget could include an annual review of federal facility cleanup progress on a basewide level in relation to the current and planned budget, in sufficient time to be able to influence the process and decisions. In addition, meetings/phone contacts should include a frequent (i.e., monthly) discussion on the current status of site budget issues. Discussions could include what projects have been put out to bid, what projects have been awarded, the potential for end-of-year funding and forward funding projects, and the results from prioritization dialogues.
Improve Project Scoping and Planning
The purpose of project scoping and planning is to reach cleanup decisions and actions in the most efficient manner. By effectively tying data collection to a specific decision, scoping and planning activities streamlines the oversight process. The time and expense of planning, producing, and reviewing excess data and additional superfluous material, (e.g., site descriptions repeated in each deliverable) can be minimized through efficient project definition.
The streamlined process should focus on upfront scoping and identification of what is actually needed at a particular site to make a particular decision. Various alternatives to focus project planning are commonly used, such as the Data Quality Objectives (DQO) process, the Streamlined Approach for Environmental Restoration (SAFER), Expedited Site Characterization, the Observational Approach, Superfund Accelerated Cleanup Model (SACM), etc. The DQO and SAFER processes emphasize teamwork and consensus building whereas the Expedited Site Characterization and the Observational Approach do not necessarily stress communication. However, all the various approaches develop answers to the same basic questions and can contribute to streamlining activities:
- What questions do you want to answer?
- What data are necessary to answer the question?
- What degree of uncertainty is acceptable?
- What is the strategy to gather information?
Focusing on the definition of the problem and the decision that will be made is critical to support an environmental action and to frame the necessary degree and specific mechanism of the oversight role.
Data collection is typically planned during scoping and conducted as part of the RI. Defining the review requirements (i.e., parameters, limits, quality assurance, etc.) upfront and focusing on data elements that will affect decisions (e.g., contaminants of concern at or above action limits) saves time and resources for all parties. The review process should concentrate on the data that will be used in decision-making at the site. For example, exhaustive review of detection limit level contaminants two to three orders of magnitude below or above an action level uses valuable resources but does not add value or contribute to the decision-making process. In this case, the relatively high uncertainty will not change the decision. However, questionable presence or high uncertainty at an action level should trigger rigorous evaluation.
As part of the planning process, the participants need to consider alternative investigative approaches, such as the use of on-site analytical measurements with or without field labs, and innovative sampling methods and well installation techniques. Additionally, the RPMs need to participate and be available in field decisions to accommodate changes in the sampling plan.
The last step of the scoping phase is to ensure that all participants understand and reach a consensus on the planning process. Consensus building may be a time-consuming and taxing process. However, the investment upfront at the scoping stage of a project will generally provide significant savings later in terms of shorter review and revision cycles, and a final product that addresses participants' concerns.
Optimizing the Data Review Process
Current interagency efforts to develop required data sets and an electronic transmission standard offer significant opportunities to improve quality and efficiency of the review processes. Standardization allows efficient sharing of site information and automation of the review process through the use of software developed by EPA for Superfund analytical data. This data review software has been adapted by DOE (and potentially by DoD) to meet broader program needs (e.g., radionuclides and RCRA compliance).
Defining Each Regulator's Role
The role of EPA and state in terms of oversight responsibilities should be clearly defined, including establishing a lead regulator, wherever possible. Having a lead regulator conserves regulator resources, and minimizes duplicative requirements and conflict between the regulators. However, EPA is still responsible for ensuring that the remedy is protective of human health and the environment and that, ultimately, the site can be deleted from the NPL. Therefore, effective communication between regulators is especially important in implementing the lead regulator concept.
The EPA RPM should assume the responsibility to serve as liaison between RCRA and CERCLA and assure that CERCLA actions will satisfy RCRA concerns and that fundamental RCRA requirements are integrated into the FFA process and schedules and visa versa. In non-authorized states, the RPM can be granted RCRA corrective action and decision-making authority.
Streamlining Documentation and Review
Standard Operating Procedures and Document Formats
In addition to reaching up-front agreements, developing Standard Operating Procedures once that will cover all cleanup activities for the federal facility will streamline the oversight process. These may include: a Health and Safety Plan; Quality Assurance Plan; Field Sampling and Analysis Plan; Investigation Derived Waste Plan; ARARs list; and a stand alone background document describing the environmental setting of the facility, as well as the history. In addition, for the sake of consistency, document formats can be developed for: RI/FS work plans and reports; Risk Assessment Reports; RD/RA work plans and reports; and RODs. These will ensure that all the required components of each document will be included the first time around.
Eliminating Interim Deliverables or Milestones
A large number of documents are typically generated on a site-specific (or operable unit specific) basis to describe and support site-specific decisions. Regions should evaluate opportunities to eliminate interim deliverables and to generate more focused documents that answer specific questions. In some cases, drafts may be eliminated, or an entire deliverable may be eliminated, depending on the site-specific project needs. Attached is the Model FFA list of primary and secondary documents. There may be situations where some of these deliverables can be eliminated, such as when a presumptive remedy is being utilized.
Conclusion
Streamlined oversight can enhance cooperation among the stakeholders; expedite the cleanup of federal facilities; and avoid the unnecessarily high cost of the current oversight process with no decrease in protection to human health and the environment.
The major statutes and regulations that implement cleanup requirements at NPL sites establish the involvement of numerous institutions and individuals in that process. The roles of EPA, the states, the tribes, the federal facility, and community groups and other external stakeholders are carefully prescribed. Guidance and regulations establish the framework in which cleanup is to be carried out. Nonetheless, there is a wide range of flexibility in the details of the cleanup action and how individual responsibilities are carried out. It is up to all the participants in the federal facility remediation process to use the flexibility to conserve resources while ensuring adequate environmental protection.
NOTICE: This Directive is primarily for the use of U.S. EPA personnel. EPA reserves the right to change this Directive at any time, without prior notice, or to act at variance to this Directive. This Directive does not create any rights, duties, or obligations, implied or otherwise, in any third parties.
Attachment
cc: Elliott Laws
Tim Fields
Steve Luftig
Barry Breen
Federal Facilities Leadership Council, Regions I-XAttachment: Model FFA List of Primary and Secondary Documents
(This list may be modified based on individual partnership needs.)
Primary Documents
- RI/FS Scope of Work
- RI/FS Work Plan - including Sampling and Analysis Plan and QAPP
- Risk Assessment
- RI Report
- Initial Screening of Alternative
- FS Report
- Proposed Plan
- Record of Decision
- Remedial Design
- Remedial Action Work Plan
Secondary Documents
- Initial Remedial Action/Data Quality Objectives
- Site Characterization Summary
- Detailed Analysis of Alternatives
- Post-screening Investigation Work Plans
- Treatability Studies
- Sampling and Data Results
Generally, secondary documents are seen as "feeder" documents and are not subject to dispute resolution as are primary documents.
CERCLA EARLY TRANSFER
Office of Real Property Disposal
How does CERCLA affect the Federal
Real Property Disposal process?
CERCLA §120(h) imposes several requirements on all
transfers of federal real property "owned by the
United States" to non-federal entities.
With regard to the Federal Property Real Disposal
Process, CERCLA requires the Federal Government to:
• give notice of hazardous substance activity to the
grantee,
• include a covenant in the deed that "all remedial
action necessary to protect human health and the
environment with respect to any such substance
remaining on the property has been taken before
the date of such transfer,"
• include a deed covenant that the United States
will return and perform any additional response
action that may be required in the future, and
• retain a perpetual right of access necessary to
do such additional response actions.
As noted above, these requirements only apply to fee
conveyances of real property out of federal ownership.
They do not apply to interagency federal real
property transfers or to leases, licenses, or easements
granted for the use of federal land. CERCLA
§120(h) also does not apply to personal property
disposals.What CERCLA-related information must
landholding agencies provide GSA with
the Report of Excess?
GSA requires that landholding agencies complete
GSA’s "Hazardous Substance Activity Certification,"
which is located in GSA’s Excess Real Property
Checklist. Completion of this form enables GSA
either to include the required notice and covenants
in the deed for a "Timely Transfer" or to work with
the landholding agency to pursue one of CERCLA’s
other transfer mechanisms, described at the end
of this document. The Standard Form 118 in GSA’s
Excess Real Property Checklist can be found on the
Resource Center Web site at:
http://rc.gsa.gov/ResourceCenter/
There are two components of the Hazardous
Substance Activity Certification:
1. The landholding agency must provide notice of
any hazardous substance activity, based upon a
complete search of agency files.
The landholding agency must assert either that
(a) there is no evidence of hazardous substance
activity, or (b) there is evidence of hazardous
substance activity that occurred on the property.
If (b), the landholding agency has a "due diligence"
obligation to provide detailed, accurate
information on all "reportable quantities" of hazardous
substances stored, released, or disposed
of on property that it reports to GSA for disposal.
The specific substances that must be reported
under CERCLA and their reporting limits are
described in 40 CFR §302.4 and 40 CFR §373.
2. If the landholding agency discloses that (b) hazardous
substance activity took place on the
property, then it must assert whether or not all
remedial action necessary to protect human
health and the environment has been taken
with respect to those hazardous substances.What does "all remedial action
necessary" mean?
The term "all remedial action necessary to protect
human health and the environment" is not defined
in CERCLA. However, it is reasonable to interpret
these words to include "removal actions" and thus,
all forms of "response action" taken to address potential
releases of hazardous substances into the
environment. GSA thus includes the CERLA §120(h)
(3) covenant even if no remedial action was ever
necessary. For example, the deed covenant is included
if a CERCLA preliminary assessment or site
inspection has verified that no discernible release
has occurred from a past activity or when it has
been determined that any onsite contamination is
below the "action levels" required for remediation.
EPA has developed specific cleanup standards for
individual contaminants. These standards can
vary depending on the proposed use of the property.
Cleanup standards for commercial or industrial
use are in most instances less stringent than
those for residential use.
Landholding agencies must report any remedial
actions previously completed on the property. If
residual contamination remains at levels that can
be addressed with land-use controls (LUCs), the
landholding agency should describe these LUCs
that are required to run with the land to protect
cleanup remedies and to prevent exposure to
these contaminants.What are "land-use controls" (LUCs),
and how do they relate to CERCLA
cleanup remedies and residual
contamination?
LUCs consist of institutional controls (e.g., restrictive
covenants) and engineering controls (e.g.,
fences and landfill caps) designed to prevent exposure
to residual contamination and to protect
cleanup remedies. LUCs can apply to a portion of
surplus property or to the entire site. They can
apply to proposed remedial actions to be completed
by the landholding agency or the property’s
purchaser. Post-transfer LUC management responsibilities
vary from state to state and even from
one project to another, depending on state statutes
and regulators’ decisions. Assignment of
these LUC responsibilities should be clarified with
the landholding agency, the proposed grantee, and
with regulators, as necessary. LUCs should be
described in the conveyance documents.
How much due diligence information
should landholding agencies provide to
GSA with their Reports of Excess?
This depends on the condition of the property.
For all excess parcels, landholding agencies should
summarize the results of their records searches
and any preliminary assessments, site inspections,
remedial investigations, or Environmental Site
Assessments they performed. Sites with ongoing
or completed response actions should include
maps delineating the cleanup areas, evidence of
regulators’ concurrence, and a summary of the
cleanup process.What are the different mechanisms in
CERCLA §120(h) for conveying real
property out of federal ownership?
GSA uses the terms "Timely Transfer," "Early Transfer,"
and "Clean Transfer" to describe the different
authorities contained within CERCLA §120(h) for
conveying federal real property out of federal ownership.
CERCLA §120(h)(3) provides for the different
Timely Transfers as well as the specific provision
in CERCLA §120(h)(3)(C) for Early Transfer.
CERCLA §120(h)(4) also includes a provision for
the seldom-used Clean Transfer.
These six different ways that the Federal Government
may comply with CERCLA §120(h) in real
property disposal are described below.
1. Timely Transfer
This mechanism applies where (a) there is no
record of hazardous substance activity, (b) contamination
is below actions levels with no restrictions
on use, or (c) contamination is above action
levels but controlled through LUCs, including deed
restrictions.
2. Timely Transfer - Operating Properly
and Successfully (OPS)
This mechanism can take place when the remedy is
not yet complete but EPA has determined that it is
"operating properly and successfully" (e.g., an
ongoing "pump and treat" groundwater cleanup
system).
3. Timely Transfer - Petroleum
This mechanism may occur when the only actionable
release is petroleum, which is not a CERCLA
hazardous substance according to CERCLA §101(14)
(unless the petroleum is contaminated with
hazardous substances and, thus, would be
actionable under CERCLA).4. Timely Transfer – Potentially
Responsible Party (PRP)
This mechanism pertains to those transactions
when the grantee is also a "potentially responsible
party" under CERCLA with respect to the property.
CERCLA specifically excludes transfers to PRPs from
the requirement that the United States provide the
CERCLA §120(h)(3)(A)(ii) deed covenants.
5. Early Transfer under CERCLA §120(h)(3)(C)
This mechanism allows federal property to be
transferred prior to remedy completion via deferral
of the covenant that "all remedial action necessary…
has been taken" until post-conveyance. This
"Early Transfer Authority" (ETA) requires the concurrence
of the State’s Governor [and the U.S. EPA
for those sites listed on the National Priorities List
(NPL)], and regulatory approval of the cleanup
schedule. For more information, see GSA’s
Fact Sheet on Early Transfer Authority.
6. Clean Transfer under CERCLA §120(h)(4)
This mechanism allows for property transfer when
no release of any hazardous substances or petroleum
products has occurred. GSA does not use
this authority, as the procedures that need to be
followed to qualify for a Clean Transfer are more
onerous than the requirements for a Timely
Transfer. Grantees can obtain the same level of
protection from the Government through a
CERCLA §120(h)(3) Timely Transfer, which,
typically, is available for use in most cases that
might otherwise appear to be eligible for transfer
under the Clean Transfer provisions.To be considered for early transfer,
the agency or department
transferring the property must
demonstrate the following:
• The new owner will use the
property in a manner suitable for
the site, and the new land use
will not pose an unacceptable
risk to human health or
the environment.
• The deed or agreement contains
certain assurances with regard to
response actions.
• The federal agency provides
public notice on the proposed
transfer, allowing the public to
provide comments.
• Early transfer will not
substantially delay any cleanup
actions on the property.For an NPL site, both EPA and the
state governor must concur on the
early transfer approval. EPA regional
offices will work closely with state
officials to review the
early transfer request
and determine whether
the criteria have been
met to merit an early
transfer. Early transfer
cannot occur until the
CERCLA guarantee
(covenant) is explicitly
deferred by EPA and the state,
through the early transfer approval
process. An Interagency Agreement
(IAG) between EPA and the
landholding federal agency is not
required but will significantly help
EPA make the covenant deferral
decision. Once the transfer has
occurred and the
proposed remedy for the
contaminated site is
"operating properly and
successfully," the
transferring agency or
department shall provide
the new owner with a
written guarantee that all
necessary response actions have been
taken, regardless of whether the
cleanup was conducted by the federal
government or the new owner.For more information about Early
Transfer Guidance, visit:
http://www.epa.gov/swerffrr
/doc/hkcover.htm
To learn more about federal facility
cleanup and reuse, visit:
http://www.epa.gov/swerffrr
Or contact:
U.S. EPA/FFRRO
401 M Street, SW. (5101)
Washington, DC 20460
Phone: 202 260-2856
E-mail: kelly.sheila@epa.gov
For guidance issued by DoD on the early
transfer of non-NPL sites, visit the BRAC
Environmental Cleanup Web Page:
http://www.dtic.mil/dtic/
6.2 Early Transfer Authority
CERCLA was recently amended to include the authority to defer the CERCLA § 120(h)(3)(A)(ii) covenant that
all remedial actions necessary to protect human health and the environment have been taken, and to transfer
property by deed, subject to certain additional statutory requirements. DoD intends to use this “Early
Transfer Authority” (ETA) to assist communities in expediting reuse of former defense facilities. By enabling
an LRA and other stakeholders to obtain full ownership of property earlier, those parties gain greater control
over the future of their community. One major benefit of ETA is that it allows for the productive reuse of
property right away rather than delaying final implementation of a reuse plan until cleanup is completed.
The ETA is a deferral, not a waiver, of the CERCLA covenant requirement. DoD (or any other Federal agency)
is still required to issue the warranty required under CERCLA, when all response actions necessary to protect
human health and the environment have been taken, or when there has been a demonstration to EPA that the
approved remedy is “operating properly and successfully.” The timing of this warranty will depend on the
selected remedy and can only occur when one of these two conditions can be met. At that time, the
transferring Federal Agency shall execute and deliver to the transferee an appropriate document containing
the warranty that all remedial action has been taken.
The ETA is self-implementing and can be used right now. Although no additional authority or regulations are
required, the DoD, EPA, and the states have guidance to implement the process. The EPA guidance only
addresses property on the NPL, while the DoD guidance extends to property not on the NPL.
Successful implementation of this authority requires that the DoD, the purchaser, the community, and the
regulatory agencies work very closely together. Not only is this partnership in the spirit of the BRAC process,
but it is mandated by statute. The Governor and EPA Administrator have approval authority to determine if
the protections and response action assurances required by statute are in place to allow the property transfer
to go forward.Deferral of the CERCLA covenant is based on a finding that:
I. The property is suitable for transfer for the use intended by the transferee, and the intended use is consistent with protection of human health and the environment;
II. The deed or other agreement proposed to govern the transfer between the U.S. and the transferee of the property contains the assurances set forth in clause (ii);
III. The Federal agency requesting deferral has provided notice, by publication in a newspaper of general circulation in the vicinity of the property, of the proposed transfer and of the opportunity for the public to submit, within a period of not less than 30 days after the date of the notice, written comments on the suitability of the property for the transfer; and
IV. The deferral and the transfer of the property will not substantially delay any necessary response action at the property.
Component must provide the following response action assurances:
I. Any necessary restrictions on the use of the property to ensure the protection of human health and the environment;
II. There will be restrictions on the use necessary to ensure that required remedial investigations, response action, and oversight activities will not be disrupted;
III. All necessary response action will be taken and identify the schedules for investigation and completion of all necessary response action as approved by the appropriate regulatory agency; and
IV. The Federal agency responsible for the property subject to transfer will submit a budget request to the Director of the Office of Management and Budget that adequately addresses schedules for investigation and completion of all necessary response action, subject to congressional authorizations and appropriations.
BCT BRAC Cleanup Team
BRAC Base Realignment and Closure
CERCLA Comprehensive Environmental Response, Compensation, and Liability Act
DoD Department of Defense
EPA Environmental Protection Agency
ETA Early Transfer Authority
FOSET Finding of Suitability for Early Transfer
LRA Local Redevelopment Authorities
LUCs Land Use Controls
NPL National Priorities List
ODUSD(I&E)EM Offi ce of the Deputy Under Secretary of Defense (Installations and Environment)
Environmental Management
RAB Restoration Advisory Board26.7 - Exhibit 12
42 U.S.C. 9620(h) REQUIREMENTS FOR CONVEYANCE OR TRANSFER OF FEDERAL REAL PROPERTY
Timely Transfer under 120(h) (3) .
Pursuant to 42 USC 9620(h) (1), the contract for sale or other transfer of real property on which any hazardous substance was stored for one year or more, known to have been released, or was disposed of, shall include a notice of the type and quantity of such hazardous substance and notice of the time at which such storage, release, or disposal took place, to the extent such information is available on the basis of a complete search of agency files.
Pursuant to 42 USC 9620(h)(3)(A)(i), each deed entered into for the transfer of such property by the United States to any other person or entity shall contain, to the extent such information is available on the basis of a complete search of agency files:
- a notice of the type and quantity of such hazardous substances,
- notice of the time at which such storage, release, or disposal took place, and
- a description of the response or corrective action taken, if any. [This includes a description of all institutional and engineering controls put into action on the property and of the conditions upon which these controls may be lifted.]
Pursuant to 42 USC 9620(h) (3) (A) (ii), except in cases where the person or entity to whom the real property is transferred is a potentially responsible party with respect to such property [42 USC 9620(h) (3) (B)], or in cases where a deferral is granted pursuant to 42 USC 9620(h) (3) (C), the deed shall also contain a covenant warranting that:
- all response action necessary to protect human health and the environment with respect to any such substance remaining on the property has been taken 1 before the date of such transfer , and that
- any additional response action found to be necessary after the date of such transfer shall be conducted by the United States.
Additionally, pursuant to 42 USC 9620(h)(3)(A)(iii), the deed shall also include a clause granting the United States access to the property i n any case in which response or corrective action is found to be necessary after the date of such transfer .
26.7 - Exhibit 12--Continued
Pursuant to CERCLA Section 104, as delegated by Executive Order 12580, the Forest Service generally has the lead agency authority with respect to the cleanup of hazardous substances on National Forest System (NFS) lands. Under CERCLA and the National Contingency Plan (NCP), 40 C.F.R. Part 300, the role of the State with respect to a Forest Service lead response action on NFS lands is to identify the State's applicable or relevant and appropriate requirements (ARARs). The State has no authority to oversee a Forest Service lead CERCLA response action on NFS lands, require the Forest Service to enter into an agreement under the State's Voluntary Cleanup Program (VCP), or require the Forest Service to pay the State's oversight costs. However, there may be unique circumstances where a State's role may go beyond responding to the Forest Service's request to identify State ARARs. For example, depending on the facts of a particular site, the State may attempt to assert its authority with respect to “hazardous waste” under the Resource Conservation and Recovery Act (RCRA). Consult with OGC PCT concerning sites where a State environmental enforcement agency is seeking to assert its RCRA authority, e.g., through issuing a Notice of Violation (NOV) or administrative order.
CERCLA Section 120(h)(3)(A)(ii)(I) requires a deed covenant that all response actions necessary to protect human health and the environment have been taken before the transfer . Pursuant to CERCLA and the NCP, the Forest Service is responsible for making that determination at Forest Service lead sites on NFS lands. In addition, pursuant to Section 120(h)(3)(A)(ii)(II), the Forest Service must covenant that any additional response action found to be necessary after the transfer , with respect to hazardous substances on the property before the transfer , will be conducted by the United States. There may be situations where the transferee may request a “no further action” determination by a State, as a condition of the negotiated property transfer agreement. Such a provision in the transfer agreement is not recommended because the State may then seek to assert an “oversight” role in the cleanup. In most cases, the determination that no further response actions are necessary will be made solely by the Forest Service and the Forest Service will then be able to give the Section 120(h)(3)(A)(ii)(I) & (II) “no further action” and “comeback” covenants. Generally, these covenants should be sufficient to market the property and the “comeback” covenant, in particular, should be more than sufficient assurance to the transferee that the United States stands behind the environmental condition of the property.
Section 120(h)(3)(B) provides that, for purposes of the 120(h)(3)(A)(ii)(I) “no further action” covenant, the agency can covenant that all necessary response action has been taken before the date of the transfer if construction and installation of the approved remedy has been completed and has been demonstrated to Environmental Protection Agency (EPA) that the remedy is “operating properly and successfully” (OPS). Carrying out long-term pumping and treating or operations and maintenance requirements will no preclude an OPS determination. Pursuant to Section 120 (h)(3)(B), the OPS determination is made by EPA, not the State.
26.7 - Exhibit 12--Continued
Early Transfer under Section 120(h)(3)(C), Covenant Deferral Request (CDR) .
An alternative that may be available is for the Forest Service to proceed with an “ Early Transfer ” under a CERCLA Section 120(h)(3)(C) Covenant Deferral, which allows the transfer of contaminated property by deferring the Section 120(h)(3)(A)(ii)(I) covenant that all necessary response action has been taken until after the transfer , provided that certain requirements are met, including obtaining concurrence from the Governor of the State (for non-NPL site), or the Administrator of the EPA (for NPL sites), that the property is “suitable” for early transfer . The suitability determination must be based on a finding that: (1) the property is suitable for the intended use by the transferee, and the intended use is consistent with protection of human health and the environment; (2) the deed contains “response action assurances”, including provisions for any necessary use restrictions on the property to ensure protection of human health and the environment and any necessary use restriction so that the cleanup will not be disrupted; (3) the agency has provided notice in the Federal Register and a 30-day opportunity for public comment on the suitability of the property; and (4) the early transfer will not substantially delay any necessary response action. A considerable amount of coordination must be done with the proposed transferee to “privatize” the cleanup, i.e., where the transferee agrees to conduct the cleanup. Such an agreement with the transferee can satisfy the “response action assurances” requirement of the suitability determination. Under an “ Early Transfer ” where the cleanup is “privatized”, the transferee will then bear the responsibility of interaction with the State concerning satisfying State requirements. At a non-NPL site, the State will have to agree with this arrangement in its concurrence to the suitability determination.
Pursuant to 42 USC 9620(h)(3)(C)(ii), in cases where the Administrator, with the concurrence of the Governor of the State in which the facility is located (in the case of real property at a Federal facility that is listed on the National Priorities List), or the Governor of the State in which the facility is located (in the case of real property at a Federal facility not listed on the National Priorities List) grants a deferral under 42 USC 9620(h)(3)(C), concerning the requirement to undertake all response action necessary to protect human health and the environment before the date of the transfer , the deed shall contain assurances that—
- provide for any necessary restrictions on the use of the property to ensure the protection of human health and the environment;
- provide that there will be restrictions on use necessary to ensure that required remedial investigations, response action, and oversight activities will not be disrupted;
26.7 - Exhibit 12--Continued
- provide that all necessary response action will be taken and identify the schedules for investigation and completion of all necessary response action as approved by the appropriate regulatory agency; and
- provide that the Federal agency responsible for the property subject to transfer will submit a budget request to the Director of the Office of Management and Budget that adequately addresses schedules for investigation and completion
of all necessary response action, subject to congressional authorizations and appropriations.
In the case where a deferral under 42 USC 9620(h)(3)(C) has been granted, once all response action necessary to protect human health and the environment with respect to any hazardous substance remaining on the property on the date of transfer has been taken 1 , the United States shall execute and deliver to the transferee, pursuant to 42 USC 9620(h)(3)(C)(iii), an appropriate document containing a warranty that all such response action has been taken.
Clean Transfers under Section 120(h)(4).
“Clean Transfers” are authorized under Section 120(h)(4), which was added to CERCLA Section 120(h) as part of the Community Environmental Response Facilitation Act, primarily to expedite the transfer of “clean” portions of military bases that were being closed under the base closure laws. In addition to properties being transferred under the base closure laws, Section 120(h)(4) authorizes the transfer of “uncontaminated” property “on which the United States plans to terminate Federal Government operations” (TFGO). “Uncontaminated” for purposes of Section120(h)(4) means that “no hazardous substances and no petroleum products or their derivatives were known to have been released or disposed of” on the property. The investigation required under Section 120(h)(4) is different from, and more complex than, the “complete search of agency files” required under Section 120(h)(1) - (3). With respect to properties located within NPL sites, EPA is responsible for concurrence with the finding that the property is “uncontaminated.” For properties not on the NPL, the State DEQ or equivalent agency is responsible for concurrence with findings that properties are “uncontaminated” by hazardous substances under Section 120(h)(4).
Because of the vague and potentially complex requirements to qualify a parcel for a “Clean Transfer ” under Section 120(h)(4), the United States General Services Administration (GSA) has indicated that the Section 120(h)(4) authority has rarely been used and recommends that the authority be avoided. GSA and OGC PCT have opined that Federal agencies have the discretion to use Section 120(h)(3) “Timely Transfer ” procedures, instead of Section 120(h)(4) “Clean Transfer ,” whenever Section 120(h)(3) is otherwise applicable. Therefore, for properties where
26.7 - Exhibit 12--Continued
there is no record of hazardous substance activity, or no evidence of releases of hazardous substances that require a response action, the Forest Service should assert that “all necessary
response actions” have been taken and assert the Section 120(h)(3)(A)(i) “Timely Transfer ” deed covenants.
In the event that the Forest Service, in its discretion, determines that it is in the interest of the Forest Service to use the Section 120(h)(4) “Clean Transfer ” authority, the Forest Service should consult with OGC PCT concerning coordination with the State. Transaction screening worksheets and/or Phase I/II reports must be submitted for DEQ review no less than 6 months in advance of expected termination of Forest Service operations on the property. Concurrence is deemed obtained if the State does not respond within 90 days. Because of the Constitutional principle of Supremacy of the Federal Government, a State's non-concurrence cannot prevent a Federal agency from transferring the property. In many cases the State will provide comments or a letter stating that no further action is needed. Although State approval is not required, the authorized officer should make every effort to address any comments or concerns offered by the State prior to conveyance (See EM-2160-2, Forest Service Guide to Land Transactions, for additional information related to TFGO). Consult with the OGC Pollution Control Team concerning issues relating to obtaining State concurrences under CERCLA Section 120(h)(4).
Under 42 USC 9620(h)(4), the term “Termination of Federal Government Operations” refers to the termination of discrete activities or functions by an agency (e.g., administrative sites and work centers where there is a federal workforce present) at the subject property upon which the property will be conveyed. TFGO does not include operations by permittees or concessionaires. Pursuant to 42 USC 9620(h)(4), when a property will be transferred upon Termination of Federal Government Operations, a detailed investigation of the real property shall be completed at least 6 months before the termination of operations to determine or discover the obviousness of the presence or likely presence of a release or threatened release of any hazardous substance or any petroleum product or its derivatives, including aviation fuel and motor oil , on the real property.
The results of the investigation shall be provided immediately to the Administrator and State and local government officials, and made available to the public [provide public notice]. The primary purpose of this investigation is to speed the transfer and beneficial reuse of the property by enabling the segregation of “uncontaminated” and “contaminated” parcels, since 42 USC 9620(h)(4) enables the transfer of the “uncontaminated” parcels while the cleanup of the “contaminated” parcels is completed.
The investigation is deemed to be complete when, in the case of real property that is part of a facility on the National Priorities List, the Administrator of the EPA [or his designated official] concurs with the results of the investigation, or, in the case of real property that is not part of a facility on the National Priorities List, the appropriate State official concurs. In the case when
26.7 - Exhibit 12--Continued
concurrence is required from a State official, the concurrence is deemed to be obtained if, within 90 days after receiving a request for the concurrence, the State official has not acted (by either concurring or declining to concur) on the request for concurrence. Because of constitutional principles relating to supremacy of the Federal Government, a State's refusal to concur cannot prevent the transfer . However, the agency should document in its files the reasons why it disagrees with the State's rationale for declining to concur.
Pursuant to 42 USC 9620(h)(4)(D), the deed entered into for the sale or transfer of any “uncontaminated” parcel of such property by the United States to any other person or entity shall contain—
- a covenant warranting that any response action or corrective action found to be necessary after the date of such sale or transfer shall be conducted by the United States; and
- a clause granting the United States access to the property in any case in which a response action or corrective action is found to be necessary after such date at such property, or such access is necessary to carry out a response action or corrective action on adjoining property.
Transmittal of "EPA Guidance on the Transfer of Federal Property by Deed Before All Necessary Remedial Action Has Been Taken Pursuant to CERCLA Section 120(h)(3)"
MEMORANDUM
SUBJECT: Transmittal of "EPA Guidance on the Transfer of Federal Property by Deed Before All Necessary Remedial Action Has Been Taken Pursuant to CERCLA Section 120(h)(3)" FROM: Timothy Fields, Jr. (SIGNED)
Acting Assistant Administrator TO: Superfund National Program Managers, Regions I-X
Office of Regional Counsel, Regions I-X DATE: June 16, 1998This memorandum transmits the "EPA Guidance on the Transfer of Federal Property by Deed Before All Necessary Remedial Action Has Been Taken Pursuant to CERCLA Section 120(h)(3)," otherwise known as the Early Transfer Guidance. This guidance is for the EPA Regions to use when reviewing requests from federal departments and agencies that are transferring property to defer the CERCLA Section 120(h)(3) covenant that all necessary remedial actions have been taken.
EPA is fully supportive of the early transfer process. When a transferee agrees to conduct the response action, this new authority provides other federal departments and agencies with an opportunity to secure cleanup by having other non-federal parties conduct cleanup. This could yield significant benefits to human health and the environment and savings to the taxpayer. In all instances, however, the landholding federal agency remains responsible for cleanup.
The Early Transfer Guidance benefits from the input of an interagency workgroup composed of EPA, the Department of Defense, the Department of Energy, and the General Services Administration. The interagency workgroup discussed several issues related to early transfer that are covered in this policy. Earlier versions of the guidance were also shared with ASTSWMO. This is, however, an EPA policy, not an interagency product.
The guidance establishes a process by which an EPA regional office should review an early transfer request. This process begins with the transferring federal agency submitting information of a sufficient quality and quantity to EPA which will support its request for a deferral and provide a basis for EPA to make its determination. This information should be submitted to EPA in the form of a Covenant Deferral Request (CDR). At base closure sites where an early transfer is being sought, EPA anticipates that the Base Closure Team, including the EPA representative, will work together in drafting the CDR to expedite the transfer.
Finally it is important to note that states play an important role in this process regardless of whether the parcel under review is on the National Priority List Federal Facility or not. States must also concur on the early transfer.
I believe this Early Transfer Guidance provides useful information to the Regions to assist federal departments and agencies in expediting the early transfer of property. If you have any questions regarding this guidance, please contact the Federal Facilities Restoration and Reuse Office at (202) 260-9924.
cc: Craig Hooks, Federal Facilities Enforcement Office
Lisa Friedman, Office of General Counsel
Kathy Gorospe, American Indian Environmental Office
Federal Facility Leadership Council
Defense Environmental Restoration Task Force
Sherri W. Goodman, Department of Defense
Raymond Fatz, Department of Army
Ellsie Munsell, Department of Navy
Thomas McCall, Jr., Department of Air Force
Al Lowas, Air Force Base Conversion Agency
James Owendoff, Department of Energy
Jim Fiori, Department of Energy
Robert DeGrasse, Department of Energy
Brian Polly, General Services Administration
Willie Taylor, Department of Interior
Tom Kennedy, Association of State and Territorial Solid Waste Management Officials
Stan Phillipe, Association of State and Territorial Solid Waste Management Officials
Jerry Pardilla, National Tribal Environmental Council
Despite mounting pressure from environmentalists and regulators, the coal industry is betting big that its low cost and abundance will fuel future growth.
WRIGHT, WYO . • Every minute, a machine at Peabody Energy Corp.'s North Antelope Rochelle mine scrapes an 80-foot wall of coal with a giant steel claw. With each swipe, the beast pivots and deposits a heap of black rock into a waiting truck.
From a distance, the yellow CAT looks like a Tonka toy. But it stands two stories tall, with 12-foot tires. On its side, a display resembling a basketball shot clock records the weight of each load.
This one reads 398 tons — enough to power a typical American household for 60 years.
That a single machine can extract decades' worth of energy underscores the scale of mining here in Powder River Basin, the source for 40 percent of the nation's coal and the fuel for 80 percent of Missouri's electricity. "We move in a day what some of the mines in the Midwest move in a month, or small Appalachian mines move in a year," boasts Jeane Hull, a Peabody group vice president who oversees the company's Western U.S. operations.
The breathtaking scope translates directly into the low costs that drive America's continuing addiction to coal-fired power — despite dire climate-change warnings and the growing chorus calling for clean fuels. At today's prices, it would take $60 in natural gas to produce the same energy as a $14 ton of Powder River Basin coal. Coal costs more to ship to market, but even if you tripled its price to account for rail transport to far-flung plants, it's still cheaper than raw natural gas — without adding in pipeline costs, said Steven F. Leer, chief executive of Creve Coeur-based Arch Coal Inc., the second-largest producer in the basin after St. Louis-based Peabody.
Arch and Peabody executives say that's not likely to change over the next decade, despite rising coal production costs, falling natural gas prices, the push for wind and solar power, and an alphabet soup of new environmental and safety restrictions.
Big Coal's expansion plans have prompted the Sierra Club and other environmentalists to use the courts and everything else in their power to stop them. They believe pollution rules and declining costs for alternatives will combine to erode coal's historic price edge. Bruce Nilles, chief of the Sierra Club's Beyond Coal campaign, confidently pronounces the "old days" of cheap coal "long gone."
The coal industry begs to differ. Indeed, companies such as Arch and Peabody are pushing more chips into the pot, betting big that demand for coal — particularly the premium variety mined here in the Powder River Basin — will continue to grow. That growth may come at the expense of other coal producing regions, especially Central Appalachia. And utility executives concede that sweeping climate change legislation, if it ever passes, could make coal-fired energy prices spike.
But the industry has a backup plan that could create a whole new battlefield with environmentalists: exporting Wyoming's rich reserves to power-hungry countries such as China, where economists see the demand curve trending higher for years, if not decades, as billions of people seek to claw their way into the modern world.
The other fundamental question the opponents of coal struggle to answer: If not coal, what? No alternative energy source — or combination of sources — can yet provide enough power to fire the factories and cool the homes of a nation spoiled for decades by cheap electricity.
Robert Clayton, chairman of the five-member Missouri Public Service Commission, said coal will remain the workhorse fuel in the state for years to come.
"At the end of the day, the consumers want the lights on when they turn them on," he said. "And it's up to us to make sure the utilities have the power to do that."
DIGGING IN
Altogether, coal companies work a dozen mines in the Powder River Basin, clustered together in a narrow north-south strip near Gillette, Wyo., the self-proclaimed "Energy Capital of America." Peabody and Arch own five of them, including the two largest. Together, the two companies control more than 4 billion tons of basin reserves and last year accounted for more than half of the coal mined here.
Peabody, the world's largest private-sector coal miner, has a permit to dig into a new 800 million-ton block of coal just north of its flagship North Antelope Rochelle mine, which will produce more than 100 million tons of coal this year.
The new School Creek mine could be tapped as soon as next year. The company has said it will produce up to 35 million tons a year.
To outsiders, coal is coal. But School Creek represents the coal qualities sought by utilities — high energy content and low sulfur. Vic Svec, a Peabody senior vice president, discusses it with the reverence that a wine collector speaks about a prized vintage.
"This is a fantastic reserve block that will be developed," Svec said. "It's just a matter of timing."
Creve Coeur-based Arch is growing in other ways. A year ago, it paid rival Rio Tinto Plc $761 million for Jacobs Ranch, a sprawling mine that shares a border with its giant Black Thunder operation. The combination yielded the world's largest mining complex, producing a staggering 4 tons of coal per second.
CLIMATE FOR COAL
Big Coal executives have little doubt that the Powder River Basin output will continue to grow. But they can extract only what their customers — power producers, such Ameren Corp. in St. Louis — will buy. And the optimism in the coal fields stands in stark contrast to how some others, particularly regulators and environmentalists, view its future. The industry faces political threats on two fronts: a slew of new rules to curb pollution by existing plants and the longer-term prospect of climate change legislation.
The white-hot politics of climate change remain a wild card. Many climate scientists warn that nothing short of a drastic reduction in emissions of carbon dioxide and other heat-trapping gases will prevent the worst effects of global warming. And no single source puts off as much CO2 as coal-burning power plants.
Congressional Democrats failed to pass climate legislation last year, and the chance for such a measure dimmed considerably when Republicans grabbed control of the House last month. But the Obama administration is pursuing another avenue. Spurred by a landmark Supreme Court decision in 2007, the EPA has declared greenhouse gases a health threat. New EPA restrictions on new sources of CO2 will take effect Jan. 2 — making it nearly impossible to build or expand a coal-fired power plant. The agency on Wednesday said new rules affecting existing power plants could be issued in 2015 or 2016.
"I think it's safe to say that getting a coal plant built is going to be a high hurdle going forward," said Shawn Schukar, who oversees environmental compliance strategy at Ameren, one of the nation's most coal-heavy utilities.
POLLUTION CONTROL
While the carbon regulations only will affect the industry's ability to expand, the nation's 500 existing power plants must soon grapple with separate regulatory pressures on their bottom line: Air- and water-quality regulations expected to be phased in over the next several years. The EPA is developing new rules that would force power plant operators to curb all sorts of pollution — nitrogen oxides, ozone, sulfur dioxide, particulates, mercury. The agency is also considering regulating disposal of toxic coal ash, in the wake of the 2008 disaster in Tennessee, where a disposal pond wall collapsed, coating 300 acres with wet coal ash and polluting two rivers.
The Brattle Group of Cambridge, Mass., estimates new federal environmental regulations could shut down almost one in every five coal-fired power plants nationwide, reducing coal use by 15 percent in the next decade.
The coal industry believes such threats are overblown. Arch recently performed an internal analysis, examining the fate of every coal-fired boiler in the country. (The 500 or so plants collectively include about 1,000 boilers.) The company concluded that more than 400 of the least efficient — some of which date back to the 1940s — would likely be retired under new EPA regulations.
Even if all of those boilers shut down over the next decade — unlikely, says Arch's Leer — it would only reduce annual coal burn by 118 million tons, or about 11 percent. That's because most of these inefficient plants often sat idle even in a good economy.
U.S. coal plants that escape the regulatory ax would, however, face costly retrofits, said Metin Celebi, a co-author of the Brattle report. The firm predicts that power producers might ultimately have to spend up to $180 billion on new pollution controls.
With the timing and severity of climate change legislation unclear, utility executives face a dilemma: Do they spend hundreds of millions of dollars to retrofit a coal-fired power plant when future political action could render it a white elephant? "If you make an investment and then slap on a high carbon tax," Schukar said, "it may make that investment look bad."
Of course, the EPA has already delayed some of the new rules. Many will be litigated for years. And the coal industry is spending millions of dollars lobbying Congress to fight every change. Peabody, for instance, sued the EPA, challenging its finding that greenhouse gases are a health threat. The company fought efforts in Colorado to switch four coal-burning power plants to natural gas. Peabody ultimately lost both challenges, but showed the will to tie up regulatory efforts in extended and expensive battles.
THE CAPACITY GAP
For all of the heat on King Coal, every other energy source faces its own vexing challenges. Wind, solar, natural gas and nuclear each face a different set of issues involving supply, capital investment, price or politics. Last year, coal-fired power accounted for nearly half of all electricity used in America; none of its opponents has yet offered any comprehensive plan to make up that gap, even with aggressive energy efficiency goals.
Renewable energy use is growing fast, propelled by state mandates and taxpayer-financed federal incentives. And while wind and the sun are free, turbines and solar farms remain expensive to build, especially compared to a coal-fired power plant that's already paid for, analysts say.
What's more, solar and wind farms can't generate power 24 hours a day, seven days a week, producing so-called baseload electricity. Wind farms in northwest Missouri, for instance, are available only about 25 percent of the time.
Nuclear power remains cheap to produce, but new plants could cost $10 billion or more, and Wall Street has so far been unwilling to make that bet — to say nothing of safety issues involving radioactive waste disposal that remain a political third rail.
The biggest threat to coal is cleaner-burning natural gas, specifically gas produced from shale rock. The Energy Information Administration, an arm of the U.S. Energy Department, this month more than doubled its estimate of technically recoverable natural gas reserves from shale. The flood of new supply and a weak U.S. economy has helped push down natural gas prices to $4.08 per thousand cubic feet from a high of $14 in mid-2008.
Energy consultants Black & Veatch estimate natural gas, which will be used to power 21 percent of electricity in 2011, will see its market share grow to 40 percent by 2035 while coal's shrinks from 48 percent to 21 percent.
But the new gas boom faces environmental problems, too. The technique for pulling gas out of shale rock with high-pressuring water — called hydraulic fracturing, or fracking — has sparked a public backlash over contamination of groundwater and drinking water in nearby neighborhoods.
And some question the wisdom of making a long-term bet on natural gas — a fuel that Duke Energy Corp. CEO Jim Rogers referred to as the "crack cocaine" of the power industry. Utilities in the past have gotten hooked on cheap gas and made huge investments, only to see prices spike and plants idled.
Gas won't be stealing much market share from coal anytime soon, said Bill O'Grady, a longtime energy analyst and chief market strategist at Confluence Investment Management LLC.
"I'm skeptical that these gas companies can pull this stuff out of the ground as cheaply as the current market price says they can," he said.
Like it or not, analysts say, the nation's energy future will rely heavily on sprawling strip mines like North Antelope Rochelle — dusty moonscapes where supersized machines and explosives scoop, shovel and blast away 24 hours a day to keep the lights on hundreds of miles away.
Even if coal executives are overestimating U.S. demand, they know that customers in a larger, faster-growing energy market — Asia — will take up the slack.
Peabody and Arch are both studying opportunities to ship millions of tons to places such as China, Taiwan, South Korea and perhaps India. Such plans could simultaneously pave the way for growth in the Powder River Basin and further galvanize environmental opposition.
"Exporting coal is a line in the sand to us," said Sierra Club's Nilles. "Why on God's green Earth would we ever enable that?"
Monday, January 3, 2011
Obama NOAA chief refuses to fire employees involved in misconduct, transfers prosecutor named in abuse to high level post in New Bedford, Mass.
.
1/2/2011, " NOAA's transfer of 'investigator' draws fire ," Gloucester Times
" A National Oceanic and Atmospheric "criminal investigator " tied to the NOAA law enforcement's notorious push against the Gloucester Seafood Display Auction
- is being reassigned to the enforcement office out of New Bedford.
And that city's mayor is outraged, calling the move "ill-advised," "uninformed," "insensitive" and "retaliatory."
Mayor Scott Lang's remarks, made to the Standard-Times of New Bedford and reported through the industry news site SavingsSeafood.com, come on the heels of reports last week that
- Susan Williams, a criminal investigator in the NOAA's Boston/Chelsea fisheries law enforcement office is in the process of
- being reassigned to the agency's New Bedford office , according to several sources inside and outside NOAA.
Williams played a role in an infamous prosecution of the Gloucester Auction, which, at one point, included an authorized entry by NOAA agents into the auction as documented by Gloucester police,
- and excessive tactics that sparked an investigation and
damning report from the Department of Commerce's Inspector General's office.
The IG's probe found widespread prosecutorial abuse and
- selective prosecution in the New England fishery,
- which embattled NOAA chief administrator Jane Lubchenco has pledged to correct.
And late last year, in a sworn deposition in the Gloucester auction case, special agent Michael R. Henry testified that higher-ups at NOAA,
- including Williams,
- participated in drafting a misleading affidavit
- to obtain a search warrant from an administrative judge.
However, repeated decisions now to transfer rather than fire employees involved in the abuses — including ousted NOAA police chief Dale Jones and formerly Gloucester-based NOAA prosecutor Charles Juliand — have caused the fishing industry to doubt Lubchenco's and other Obama administration officials' commitment in reforming the agency, and has raised the wrath of both Republican and Democratic members of Congress who represent coastal communities from Maine to North Carolina.
- The cities of Gloucester and New Bedford , the nation's oldest and highest-value oldest seaports, respectively, are also currently suing Lubchenco and Commerce Secretary Gary Locke for the agency's
- implementation of the Obama administration's "catch share" fisheries management policy,
which pushes for further consolidation of the New England groundfish fleet into the hands of the largest and wealthiest vessel owners, causing unemployment, and wreaking economic havoc in the two cities.
- The word that Williams is in line for reassignment to New Bedford, Lang indicated, only raises further questions regarding Lubchenco's giving serious attention to the growing NOAA enforcement scandal.
" We're apprehensive about anyone who was involved in the abuses that were documented in the inspector general's report now being transferred to New Bedford, " Mayor Lang told the Standard-Times.
- Lang said that New Bedford's local NOAA office — unlike in Gloucester, where NOAA regulates fisheries from Maine to the Carolinas from its Northeast regional headquarters in Blackburn Industrial Park —
- has generally enjoyed a good, solid relationship with the fishing fleet.
" The individuals who work out of New Bedford, by and large, are highly respected by the fishing community," Lang said. "To bring someone into the mix
- (who was) part of the inspector general's focus is something that I don't quite understand.
"She should be monitoring freshwater pike in the Great Lakes," Lang said, not assigned to the No. 1 value fishing port in the nation, he said."
####
8/23/10, " The longtime federal fisheries police chief, Dale Jones was put on paid administrative leave in April following the first report by Inspector General Todd Zinser,
9/24/10, " Feds find abuse of power in prosecuting fishermen , " Newsday by Mark Harrington
- b ut Jones remains on the NOAA payroll to the tune of $150,000 a year.".. .
released the latest in a series of reports finding fisheries lawyers and enforcement officers abused their power in prosecuting fishermen and dealers like (Warren) Kremin, who lives in Rockland County. Among the most recent charges were
- " On Thursday, investigators for the U.S . Commerce Department 's Office of Inspector General
- cases of excessive fines and prosecutions that all but mandated costly settlements."...
7/13/10, " Lawyer cites ethics issues with NOAA Counsel funds, " Gloucester Times, Richard Gaines
- #####
NOAA built a $49 million slush fund obtained by pressuring fishermen which the federal employees used for their own enjoyment, travel, personal vehicles. This is on top of their $5 billion budget.
Obama's NOAA chief Lubchenco will not allow it.
- No one has been fired or even punished for the crimes.
####
- In a recent investigation of NOAA, the US Inspector General was met by a lack of cooperation from NOAA counsel Lois Schiffer , a Lubchenco hire.
7/13/10, Gloucester Times: " The letter also openly challenges Schiffer's written plan not to look back at any miscarriages of justice by NOAA lawyers and agents. Due to Internet transmission problems, Schiffer's office could not be presented with questions about today's story until nearly deadline, so no responses were available....
- Congressional reaction to the (US Inspector General's) IG's report has been angry and varied."...
These distinctions between rules of repose of statutes of limitations are
Preemption laws are construed narrowly, and it is
particularly significant in the context of Section 9658. Rules of repose create substantive
rights, which would be abrogated if Section 9658 were held to affect state rules of repose
— a significantly more ambitious legislative objective than tolling the statute of
limitations. And because the concepts of tolling and accrual are (under state law)
inapplicable to rules of repose, it seems counter-intuitive to toll a rule of repose by means
of a federally-imposed accrual date
generally presumed that Congress does not preempt state law by statute unless it clearly
expresses the intent to do so. See, e.g., New York State Dept. of Social Servs. v.
Dublino, 413 U.S. 405 (1973) (“If Congress is authorized to act in a field, it should
manifest its intention clearly. It will not be presumed that a federal statute was intended
to supersede the exercise of the power of the state unless there is a clear manifestation of
intention to do so. The exercise of federal supremacy is not lightly to be presumed.”).
Requiring that Section 9658 apply only to statutes of limitation (which are
unambiguously referenced in the text of the statute) is consistent with this principle of
narrow construction.
A construction of CERCLA not encompassing rules of repose would also allow
courts to avoid potentially difficult constitutional questions in the application of Section
9658. If the FRCD were held to affect the rule of repose in a case where the repose
period had ended prior to the 1986 enactment of the SARA Amendments, Section 9658
could have the effect of “reviving” a cause of action that is substantively extinct (as
opposed to being only procedurally barred by a statute of limitations). Along the same
lines, it would extinguish the repose rights of potential defendants, arguably violating
their due process rights. See Alfred R. Light, New Federalism, Old Due Process, and
Retroactive Revival: Constitutional Problems with CERCLA’s Amendment of State Law,
40 U. Kan. L. Rev. 365, 392-95 (1992).Conclusion
Even as the states reach consensus on the recognition of a “discovery rule” for
toxic tort type claims, the application of CERCLA Section 9658 to state statutes of
limitations remains important to litigants, particularly in situations where there is no
underlying CERCLA cleanup involved. The battle lines, however, are also clearly being
drawn in response to the increased number of cases where plaintiffs seek to invoke
CERCLA as a means to circumvent the application of state rules of repose. Despite the
passage of two decades since the enactment of the provision, courts that have addressed
this issue to date are divided on whether Congress intended that Section 9658 should
apply in this context. Until courts achieve clarity on the issue, toxic tort litigants are
well-advised to consider carefully the complexities of CERCLA’s potential application to
state rules of repose, as well as statutes of limitation.The distinction appears to be recognized in certain other federal laws, as well. 28 U.S.C. § 1658(b)(2), for
example, creates a five-year statute of repose for private actions involving securities fraud. This period
(which is not specifically denoted a “repose” period) is not tolled by fraud and is not (unlike the general
statute of limitations for federal claims set forth in 28 U.S.C. § 1658(a)) dependent on the date on which the
action accrues.AIG Didn't Report $18.7 Billion of Company Guarantees
December 29, 2010, 3:03 PM EST
By Andrew Frye and Hugh Son
(Updates with consumer advocate in the fourth paragraph, AIG spokesman in the sixth.)
Dec. 29 (Bloomberg) -- American International Group Inc., the bailed-out U.S. insurer, failed to report $18.7 billion of policyholder guarantees at two property-casualty subsidiaries in 2008, a Pennsylvania regulator said.
National Union Fire Insurance Co. of Pittsburgh and American Home Assurance Co., which issued the guarantees to bolster other AIG units, had contingent liabilities tied to the promises of $157 billion on Dec. 31, 2008, compared with the $138.3 billion disclosed at the time, Robert Pratter, the state's acting insurance commissioner, said today in a report.
AIG was instructed by the regulator to limit or end its intra-group guarantees, according to the report. It doesn't face financial penalties, Rosanne Placey, a spokeswoman for the Pennsylvania regulator, said in an e-mail. The New York-based insurer, once the world's largest, was brought to the brink of collapse in September 2008 when the company was unable to meet its obligations without a cash injection from the government.
Failing to report contingent liabilities may be “a serious problem because of the systemic risk for the whole enterprise,” said Robert Hunter, a former Texas insurance commissioner who is now insurance director at the Washington-based Consumer Federation of America.
Insurance companies are required to disclose their subsidiaries' guarantees to state regulators. They aren't bound to recognize the obligations as liabilities on balance sheets.
Remediation Plan
“We have adopted a remediation plan to ensure that our disclosures are more accurate going forward,” Mark Herr, an AIG spokesman, said in an e-mailed statement. “We are not required to establish a liability for these guarantees in which the likelihood of payment is remote.”
AIG came under investigation in Pennsylvania as rivals including Chubb Corp. and Liberty Mutual Holding Co. complained that the company's government backstop was allowing the insurer to sell policies below competitive rates.
Pennsylvania said in the report that AIG's pricing and underwriting were “not out of line” with competitors. The Government Accountability Office, the investigative arm of the U.S. Congress, said in a March 2009 report it found no evidence of under-pricing by AIG.
AIG agrees with Pennsylvania's findings, Robert Schimek, chief financial officer of Chartis, the company's property- casualty business, said in a Dec. 7 letter to the regulator. AIG's units “have the appropriate controls to ensure more accurate disclosures,” Schimek said in the letter, which was attached to the report.
--With assistance from Noah Buhayar in New York. Editors: Dan Reichl, Rick Green.
To contact the reporters on this story: Andrew Frye in New York at afrye@bloomberg.net; Hugh Son in New York at hson1@bloomberg.net
To contact the editors responsible for this story: Dan Kraut at dkraut2@bloomberg.net; David Scheer at dscheer@bloomberg.net.
AIG chief invokes Ayn Rand while defending his bailout
Robert Benmosche, chief executive of American International Group (AIG), feels so vindicated by his company's turnaround from bailout-recipient to a company with actual value that he told the Wall Street Journal he was wondering whether he was going to get phone calls saying he was right:
"I was wondering if I might get a call from someone saying maybe 'you were right,' because we look better than we did last May and we can see the finish line from here, and it comes with a profit for the taxpayers," Mr. Benmosche said in an email. "But as I learned in [Ayn Rand's book] 'Atlas Shrugged,' find your Thank Yous from within."
When did Benmosche read "Atlas Shrugged"? After his company received a $182.3 billion bailout from taxpayers, where Uncle Sam became chief shareholder, owning 92 percent of his company? I can't seem to recall the part of the book where Rand said that your company should follow the Federal Reserve in lockstep and not disclose important information to taxpayers regarding what you're doing with their money:
AIG said in a draft of a regulatory filing that the insurer paid banks, which included Goldman Sachs Group Inc. and Societe Generale SA, 100 cents on the dollar for credit-default swaps they bought from the firm. The New York Fed crossed out the reference, according to the e-mails, and AIG excluded the language when the filing was made public on Dec. 24, 2008. The e-mails were obtained by Representative Darrell Issa, ranking member of the House Oversight and Government Reform Committee.
The New York Fed took over negotiations between AIG and the banks in November 2008 as losses on the swaps, which were contracts tied to subprime home loans, threatened to swamp the insurer weeks after its taxpayer-funded rescue. The regulator decided that Goldman Sachs and more than a dozen banks would be fully repaid for $62.1 billion of the swaps, prompting lawmakers to call the AIG rescue a "backdoor bailout" of financial firms.
Yes, Mr. Benmosche, you're a regular John Galt. I'll be sure to call you and tell you just that.
There are two mandates of the Federal Reserve Bank. Those are to promote stable prices and to maximum employment. Very soon they will be shown to completely fail on both accounts. The Bureau of Labor Statistics (BLS) after DECADES of rigging the unemployment numbers lower with insane adjustments and flat out lies will REVERSE their biased slant and start reporting realistic numbers as of January 1, 2011 in order to help demolish the Federal Reserve Banking system in the United States. US Changes How IT Reports Long-Term Unemployment
http://www.usatoday.com/news/nation/2010-12-28-1Ajobless28_ST_N.htm This is NOT an accident or a false flag to steer us away from the truth....THIS IS PART OF THE TAKE DOWN OF THE FEDERAL RESERVE SYSTEM! Part 2 will be a hyper-inflationary price hikes in all commodities (gold and silver especially!) starting in early January.
Part 3 will be Ron Paul cracking open the secret files of the Fed to expose the fraud, manipulation and VAST secret monetary creation. the finally the the Fed will DIE. As in Dead. Kaput. Over. 2011 will be the turning point for the rebirth of our great nation.area Development Homepage >> Asset Management >>
Government Funding Sweetens Site Redevelopment With grants and incentives available from the federal to the local levels, brownfields are attracting businesses seeking well-positioned sites.
Concordia res parvae crescent - Work together to accomplish more
Moylan slams EPA for joining lawsuit
By Steven H. Foskett Jr. TELEGRAM & GAZETTE STAFF
sfoskett@telegram.com
Read more: http://www.telegram.com/article/20110105/NEWS/101050435/1003/NEWS03#ixzz1AD03oceG WORCESTER — In a blisteringly worded memo, Department of Public Works and Parks Commissioner Robert L. Moylan Jr. called for national reform of how the U.S. Environmental Protection Agency deals with pollution controls imposed on cities and towns.
Mr. Moylan's letter was a response to recent news that the EPA had decided to join a lawsuit filed by the Conservation Law Foundation against the Boston Water and Sewer Commission.
The ramifications of the Boston case, which alleges the city has failed to effectively control storm-water pollution into the Charles, Mystic and Neponset rivers, could affect how Worcester's own storm-water runoff efforts are viewed by the EPA.
Mr. Moylan wrote that the EPA's decision to join the CLF suit is cause for concern, because Worcester holds the same EPA-issued storm-water permit. And also like Boston, the city's current permit has expired and a new permit is awaited. Mr. Moylan has said new orders the EPA has discussed for permit renewal could cost the city $1.2 billion.
“While this legal case does not directly involve Worcester, the actions by the EPA are both disturbing and telling and should cause every municipality great concern,” Mr. Moylan wrote.
The EPA does not seem to be taking into account budgetary struggles of cities such as Worcester, Mr. Moylan wrote. And Mr. Moylan wrote that he was puzzled why the EPA, with “practically unlimited” authority to act against permit violators, even joined the suit.
Mr. Moylan called the CLF an activist group with an extremist viewpoint.
“Worcester needs to be very concerned because like Boston, Worcester does not operate in a perfect world,” he wrote.
Read more: http://www.telegram.com/article/20110105/NEWS/101050435/1003/NEWS03#ixzz1ACzn4GorHaven of Vermont: Thinking Local to Be Global-ized??
Submitted by Simha Bode on Wed, 12/29/2010 - 12:45pm.
It has been proven to me, we live in a world where White can mean Black and 2+2 can equal 5. Think Global act Local... Sounds positive. Is it?
Who is ICLEI? International Council for Local Environmental Initiatives What do they do? They are an NGO that specializes in regional "sustainable development" helping local governments and town councils implement Agenda 21. If you don't know what The Agenda for the 21st Century is, I would advise you to look into it. It is an all-encompassing UN Action Plan (1992). The other part of this big plan is in the Global Biodiversity Assessment Report. (resource links bellow)
I am not getting into all that this action plan does, it is basically a Global plan implemented on a Local level by "Non Government" fronts, who implement UN Policies that take control of our representative government and put it into the hands of regional, non-elected boards. You can guess who these boards are working for and what their goals are. If you don't think they could pull this off, open your eyes, A. 21 already has deep roots in all aspects of our society across the country.
Our educational system has been deeply infiltrated, from grammar school to high school the children are being taught to "think Global", Universities are spitting out "sustainable Development" activists. Some 550 communities across the US are ICLEI member and pay dues to them and are required to follow the ICLEI charter. The Obama admin. just pushed to make Millions of undeveloped acreage into protected fed. lands (which is the beginning of the "wild-lands" of Agenda 21). Senate Bill 787 the Clean Water Act puts our water under fed. control. Canada just passed Bill C 36, which is compared to our patriots act. Don't think it is in VT?
Think again... we have three community members of ICLEI; Burlington, S. Burlington and Brattleboro. Look at the title of Vermont's Law School's Initiative for the Environment, RECALIBRATING THE LAW OF HUMANS WITH THE LAWS OF NATURE....Sounds harmless enough? When you realize the implications of giving Nature superior rights over humans, you wont think so.
Agenda 21's "smart growth communities" and "wildlands" plan, separates man from nature so he wont endanger it; i.e Nature has rights over man. Sounds ludicrous I know.
(*added) This just posted on Vt Digger: 46 municipalities to receive $417,660 for planning as part of Vermont's "smart growth strategy." Smart Growth Vermont has a nice web site and it all "sounds" great. Is it just coincidence they use the same terminology as the UN's A.21 plan, have the same principals and are located in a ICLEI member community? If they are following A.21 Smart Growth why is there no reference on the web site?
Are we selling our sovereignty because our federal reserve notes have been stolen, and this is the remedy the thieves have offered?
I AM ALL FOR LOCAL, ORGANIC, CONSERVATION, ECOLOGY AND ALL THAT JAZZ! Don't get me wrong... It is just the fact that 2+2=5. Some towns have had enough of ICLEI and are taking action. Spokane, WA is one of them, they drafted a municipal code to be able to sever ties with ICLEI and an amendment to the city charter. I will quote one section of the code,
"WHEREAS, the people of the City of Spokane wish to see the Constitution and its Republican form of government upheld, along with the natural rights of each and every American to the unencumbered fruits of their labor, it is necessary to sever all ties with ICLEI, the United Nations, or any other entity that wishes to work against the Constitution and natural rights of the people of the United States of America."
A big goal of A.21 is to abolish private property, remember they use a slow phased programming so it will be excepted with little objection!... Do some research, figure it out for yourself and then take action, we need all hands on deck! Any group claiming "local action" is to be examined, we need to understand their origins, ties, the plans they are following and specifically the MONEY trail! Now is the perfect time for ICLEI to come in...(*guess I spoke to soon) Do you think our towns and elected officials are looking for funding during the recession? ICLEI will come into help, they aren't the only NGO's doing this either. They start with the lowest levels of governance, this is their cloak. Remember this is a Word-Smithing Game, It all sound so great; sustainable, green, bio-diversity, local, etc etc etc. Put on your goggles of humility, don't assume 2+2=4. Spread the word.
In Solidarity, Simha
I did a lot of reading of the original documents for this piece, which I recommend. I will leave you with just two links on the same site. their home page that is the best data base, with relevant documents and information (+Videos), that I could find, and their ICLEI Primer page.... Maybe I will post some more later. (copy and paste)
http://www.freedomadvocates.org
We conclude that failure to obtain written consent and in the absence of harm or injury and without QA or QAPP is arbitrary and capricious and is punishable for FEDERAL GOVERNMENT TYRANNY, EXTORTION, FRAUD AND DERELICTION OF DUTIES damages and civil penalties under THE MORRILL ACT, SHERMAN ACT, AND CLAYTON ACT FOR RETRIBUTION of $450,000 per day ESTABLISHMENT OF RELIGION AND SLAVERY SINCE JANUARY 1, 1983.
TITLE 33 > CHAPTER 26 > SUBCHAPTER V > § 1371. Authority under other laws and regulations
In these and the like Cases, when the Government is dissolved, the People are at liberty to provide for themselves, by erecting a new Legislative, differing from the other, by the change of Persons, or Form, or both as they shall find it most for their safety and good. For the Society can never, by the fault of another, lose the Native and Original Right it has to preserve it self, which can only be done by a settled Legislative, and a fair and impartial execution of the Laws made by it. But the state of Mankind is not so miserable that they are not capable of using this Remedy, till it be too late to look for any. To tell People they may provide for themselves, by erecting a new Legislative, when by Oppression, Artifice, or being delivered over to a Foreign Power, their old one is gone, is only to tell them they may expect Relief, when it is too late, and the evil is past Cure. This is in effect no more than to bid them first be Slaves, and then to take care of their Liberty; and when their Chains are on, tell them, they may act like Freemen. This, if barely so, is rather Mockery than Relief; and Men can never be secure from Tyranny, if there be no means to escape it, till they are perfectly under it: And therefore it is, that they have not only a Right to get out of it, but to prevent it. - Locke
“Whenever the Federal Government assumes undelegated powers, its acts are unaithoritative, void, and of no force.” Thomas Jefferson
Securing the Republic
Thomas Jefferson, Preamble to a Bill for the More General Diffusion of Knowledge
Fall 1778 Papers 2:526--27
Whereas it appeareth that however certain forms of government are better calculated than others to protect individuals in the free exercise of their natural rights, and are at the same time themselves better guarded against degeneracy, yet experience hath shewn, that even under the best forms, those entrusted with power have, in time, and by slow operations, perverted it into tyranny; and it is believed that the most effectual means of preventing this would be, to illuminate, as far as practicable, the minds of the people at large, and more especially to give them knowledge of those facts, which history exhibiteth, that, possessed thereby of the experience of other ages and countries, they may be enabled to know ambition under all its shapes, and prompt to exert their natural powers to defeat its purposes; And whereas it is generally true that that people will be happiest whose laws are best, and are best administered, and that laws will be wisely formed, and honestly administered, in proportion as those who form and administer them are wise and honest; whence it becomes expedient for promoting the publick happiness that those persons, whom nature hath endowed with genius and virtue, should be rendered by liberal education worthy to receive, and able to guard the sacred deposit of the rights and liberties of their fellow citizens, and that they should be called to that charge without regard to wealth, birth or other accidental condition or circumstance; but the indigence of the greater number disabling them from so educating, at their own expence, those of their children whom nature hath fitly formed and disposed to become useful instruments for the public, it is better that such should be sought for and educated at the common expence of all, than that the happiness of all should be confided to the weak or wicked: . . .
The Founders' Constitution
Volume 1, Chapter 18, Document 11
http://press-pubs.uchicago.edu/founders/documents/v1ch18s11.html
The University of Chicago PressThe Papers of Thomas Jefferson . Edited by Julian P. Boyd et al. Princeton: Princeton University Press, 1950--.
MANUFACTURED JURISDICTION: "the circumstances relied upon to establish federal jurisdiction over the offenses charged were artificially created by the Government in an attempt to exceed the proper scope of federal law enforcement." 501 F.Supp. at 1205. 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. COPPER, CADMIUM, AND ZINC; QAPP Information: QA Info Missing; Keswick dam to Cottonwood creek; Final Listing Decision: Delist from 303(d) list. JUNE 15, 2010;
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
Regional Screening Levels (Formerly PRGs)
Regional Screening Level Resources
Online Screen Level Calculator
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.
Region 9 PRGs 2004 Table (PDF) (16pp, 962 K)
WATER RESOURCES CONTROL BOARD, CA - JOINT & SEVERAL TRESSPASSERS
Stimulus Funds Awarded: $25,592,671.40 - LIQUIDATED DAMAGES; DUNS: 808321913 SEIZURE & EJECTMENT
Wednesday, December 29, 2010
Water Quality Bills in the Remainder of the 111th Congress
Claudia Copeland
Specialist in Resources and Environmental Policy
The Senate and House could consider a number of water quality bills some time during the remaining days of the 111 th Congress. Recent press reports have indicated that legislators, especially in the Senate, are seeking to gather support for several bills, possibly packaged with others dealing with public lands and wildlife protection. This report describes 10 water quality bills pending in the Senate that could be candidates for consideration during the lame duck session of the 111 th Congress.
All of the water quality issues discussed below have been highlighted in recent press reports for inclusion in a package. All but one would amend the Clean Water Act (CWA), and all were approved by the Senate Environment and Public Works Committee in recent weeks. Similar House bills have been introduced for all but one of the Senate measures discussed in this report, and the House has passed two of them. With the exception of a bill on Chesapeake Bay, the individual bills are not likely to be considered controversial. Most of the individual bills would either reauthorize existing CWA provisions that address water quality concerns in specified geographic areas, or would establish similar provisions for other regions or watersheds. These water quality issues and related 111 th Congress bills are:
- Estuaries under the CWA's National Estuary Program (H.R. 4715),
- Chesapeake Bay (S. 1816),
- Columbia River Basin (S. 4016),
- Great Lakes (S. 3073 and S. 933),
- Gulf of Mexico (S. 1311),
- Lake Tahoe (S. 2724),
- Long Island Sound (S. 3119),
- P uget Sound (S. 2739), and
- S an Francisco Bay (S. 3539).
The descriptions in this report are based on bills as reported by the Senate Environment and Public Works Committee, although if any of the bills were to receive further consideration, provisions could differ from the reported version or amendments offered. Further, if the Senate or House were to consider a group of water quality bills, the package might include more or fewer than those discussed here. Also, whether sufficient time remains for necessary action by both the Senate and House is highly uncertain.
$336,706,450 + $93,590,773 = $430,297,223 PAYABLE TO BEGIN SUPERFUND REMEDIATION
* 9 = $3,872,675,007 NONUPLED DAMAGES
TITLE 28 > PART V > CHAPTER 125 > § 1964 Prev | Next
§ 1964. Constructive notice of pending actions
How Current is This? Where the law of a State requires a notice of an action concerning real property pending in a court of the State to be registered, recorded, docketed, or indexed in a particular manner, or in a certain office or county or parish in order to give constructive notice of the action as it relates to the real property, and such law authorizes a notice of an action concerning real property pending in a United States district court to be registered, recorded, docketed, or indexed in the same manner, or in the same place, those requirements of the State law must be complied with in order to give constructive notice of such an action pending in a United States district court as it relates to real property in such State.
TITLE 28 > PART VI > CHAPTER 151 > § 2201 Prev | Next
§ 2201. Creation of remedy
How Current is This?(a) In a case of actual controversy within its jurisdiction, except with respect to Federal taxes other than actions brought under section 7428 of the Internal Revenue Code of 1986, a proceeding under section 505 or 1146 of title 11 , or in any civil action involving an antidumping or countervailing duty proceeding regarding a class or kind of merchandise of a free trade area country (as defined in section 516A(f)(10) of the Tariff Act of 1930), as determined by the administering authority, any court of the United States, upon the filing of an appropriate pleading, may declare the rights and other legal relations of any interested party seeking such declaration, whether or not further relief is or could be sought. Any such declaration shall have the force and effect of a final judgment or decree and shall be reviewable as such. (b) For limitations on actions brought with respect to drug patents see section 505 or 512 of the Federal Food, Drug, and Cosmetic Act.
TITLE 28 > PART VI > CHAPTER 151 > § 2202 Prev | Next
§ 2202. Further relief
How Current is This? Further necessary or proper relief based on a declaratory judgment or decree may be granted, after reasonable notice and hearing, against any adverse party whose rights have been determined by such judgment.
TITLE 28 > PART VI
PART VI—PARTICULAR PROCEEDINGS
- CHAPTER 151 —DECLARATORY JUDGMENTS (§§ 2201—2202)
- CHAPTER 153 —HABEAS CORPUS (§§ 2241—2256)
- CHAPTER 154 —SPECIAL HABEAS CORPUS PROCEDURES IN CAPITAL CASES (§§ 2261—2266)
- CHAPTER 155 —INJUNCTIONS; THREE-JUDGE COURTS (§§ 2281,_2282—2284)
- CHAPTER 157 —SURFACE TRANSPORTATION BOARD ORDERS; ENFORCEMENT AND REVIEW (§§ 2321—2324,_2325)
- CHAPTER 158 —ORDERS OF FEDERAL AGENCIES; REVIEW (§§ 2341—2353)
- CHAPTER 159 —INTERPLEADER (§ 2361)
- CHAPTER 161 —UNITED STATES AS PARTY GENERALLY (§§ 2401—2416)
- CHAPTER 163 —FINES, PENALTIES AND FORFEITURES (§§ 2461—2467)
- CHAPTER 165 —UNITED STATES COURT OF FEDERAL CLAIMS PROCEDURE (§§ 2501—2522)
- [CHAPTER 167 —REPEALED] (§ 2601_to_2604)
- CHAPTER 169 —COURT OF INTERNATIONAL TRADE PROCEDURE (§§ 2631—2647)
- CHAPTER 171 —TORT CLAIMS PROCEDURE (§§ 2671—2680)
- CHAPTER 173 —ATTACHMENT IN POSTAL SUITS (§§ 2710—2718)
- [CHAPTER 175 —REPEALED] (§ 2901_to_2906)
- CHAPTER 176 —FEDERAL DEBT COLLECTION PROCEDURE (§§ 3001—3308)
- CHAPTER 178 —PROFESSIONAL AND AMATEUR SPORTS PROTECTION (§§ 3701—3704)
- CHAPTER 179 —JUDICIAL REVIEW OF CERTAIN ACTIONS BY PRESIDENTIAL OFFICES (§§ 3901—3908)
- CHAPTER 180 —ASSUMPTION OF CERTAIN CONTRACTUAL OBLIGATIONS (§ 4001)
TITLE 28 > PART IV > CHAPTER 91 > § 1503 Prev | Next
§ 1503. Set-offs
How Current is This? The United States Court of Federal Claims shall have jurisdiction to render judgment upon any set-off or demand by the United States against any plaintiff in such court.
SET-OFF
Defalcation; a demand which a defendant makes against the plaintiff in the suit for the purpose of liquidating the whole or a part of his claim.
A set-off was unknown to the common law, according to which mutual debts were distinct and inextinguishable except by actual payment or release.
The statute 2 Geo. II., which has been generally adopted in the United States with some modifications however, allowed, in cases of mutual debts, the defendant to set his debt against the other, either by pleading it in bar, or giving it in evidence, when proper notice had been given of such intention, under the general issue. The statute being made for the benefit of the defendant, is not compulsory the defendant may Waive his right, and bring a cross action against the plaintiff.
It seems, however, that in some cases of intestate estates, and of insolvent estates, perhaps owing to the peculiar wording of the law, the statute has been held to operate on the rights of the parties before action brought, or an act done by either of them.
Set-off takes place only in actions on contracts for the payment of money, as assumpsit, debt and covenant. A set-off is not allowed in actions arising ex delicto, as, upon the case, trespass, replevin or detinue.
The matters which may be set off, may be mutual liquidated debts or damages, but unliquidated damages cannot be set off. The statutes refer only to mutual unconnected debts; for at common law, when the nature of the employment, transaction or dealings necessarily constitute an account consisting of receipts and payments, debts and credits, the balance only is considered to be the debt, and therefore in an action, it is not necessary in such cases either to plead or give notice of set-off.
In general, when the government is plaintiff, no set-off will be allowed. But when an act of congress authorizes such set-off, it may be made.
Judgments in the same rights may be set off against each other at the discretion of the court.
TITLE 28 > PART IV > CHAPTER 91 > § 1505 Prev | Next
§ 1505. Indian claims
How Current is This? The United States Court of Federal Claims shall have jurisdiction of any claim against the United States accruing after August 13, 1946, in favor of any tribe, band, or other identifiable group of American Indians residing within the territorial limits of the United States or Alaska whenever such claim is one arising under the Constitution, laws or treaties of the United States, or Executive orders of the President, or is one which otherwise would be cognizable in the Court of Federal Claims if the claimant were not an Indian tribe, band or group.
TITLE 28 > PART IV > CHAPTER 91 > § 1498 Prev | Next
§ 1498. Patent and copyright cases
How Current is This?(a) Whenever an invention described in and covered by a patent of the United States is used or manufactured by or for the United States without license of the owner thereof or lawful right to use or manufacture the same, the owner's remedy shall be by action against the United States in the United States Court of Federal Claims for the recovery of his reasonable and entire compensation for such use and manufacture. Reasonable and entire compensation shall include the owner's reasonable costs, including reasonable fees for expert witnesses and attorneys, in pursuing the action if the owner is an independent inventor, a nonprofit organization, or an entity that had no more than 500 employees at any time during the 5-year period preceding the use or manufacture of the patented invention by or for the United States. Nothwithstanding [1] the preceding sentences, unless the action has been pending for more than 10 years from the time of filing to the time that the owner applies for such costs and fees, reasonable and entire compensation shall not include such costs and fees if the court finds that the position of the United States was substantially justified or that special circumstances make an award unjust. For the purposes of this section, the use or manufacture of an invention described in and covered by a patent of the United States by a contractor, a subcontractor, or any person, firm, or corporation for the Government and with the authorization or consent of the Government, shall be construed as use or manufacture for the United States. The court shall not award compensation under this section if the claim is based on the use or manufacture by or for the United States of any article owned, leased, used by, or in the possession of the United States prior to July 1, 1918. A Government employee shall have the right to bring suit against the Government under this section except where he was in a position to order, influence, or induce use of the invention by the Government. This section shall not confer a right of action on any patentee or any assignee of such patentee with respect to any invention discovered or invented by a person while in the employment or service of the United States, where the invention was related to the official functions of the employee, in cases in which such functions included research and development, or in the making of which Government time, materials or facilities were used. (b) Hereafter, whenever the copyright in any work protected under the copyright laws of the United States shall be infringed by the United States, by a corporation owned or controlled by the United States, or by a contractor, subcontractor, or any person, firm, or corporation acting for the Government and with the authorization or consent of the Government, the exclusive action which may be brought for such infringement shall be an action by the copyright owner against the United States in the Court of Federal Claims for the recovery of his reasonable and entire compensation as damages for such infringement, including the minimum statutory damages as set forth in section 504 (c) of title 17 , United States Code: Provided, That a Government employee shall have a right of action against the Government under this subsection except where he was in a position to order, influence, or induce use of the copyrighted work by the Government: Provided, however, That this subsection shall not confer a right of action on any copyright owner or any assignee of such owner with respect to any copyrighted work prepared by a person while in the employment or service of the United States, where the copyrighted work was prepared as a part of the official functions of the employee, or in the preparation of which Government time, material, or facilities were used: And provided further, That before such action against the United States has been instituted the appropriate corporation owned or controlled by the United States or the head of the appropriate department or agency of the Government, as the case may be, is authorized to enter into an agreement with the copyright owner in full settlement and compromise for the damages accruing to him by reason of such infringement and to settle the claim administratively out of available appropriations. Except as otherwise provided by law, no recovery shall be had for any infringement of a copyright covered by this subsection committed more than three years prior to the filing of the complaint or counterclaim for infringement in the action, except that the period between the date of receipt of a written claim for compensation by the Department or agency of the Government or corporation owned or controlled by the United States, as the case may be, having authority to settle such claim and the date of mailing by the Government of a notice to the claimant that his claim has been denied shall not be counted as a part of the three years, unless suit is brought before the last-mentioned date. (c) The provisions of this section shall not apply to any claim arising in a foreign country. (d) Hereafter, whenever a plant variety protected by a certificate of plant variety protection under the laws of the United States shall be infringed by the United States, by a corporation owned or controlled by the United States, or by a contractor, subcontractor, or any person, firm, or corporation acting for the Government, and with the authorization and consent of the Government, the exclusive remedy of the owner of such certificate shall be by action against the United States in the Court of Federal Claims for the recovery of his reasonable and entire compensation as damages for such infringement: Provided, That a Government employee shall have a right of action against the Government under this subsection except where he was in a position to order, influence, or induce use of the protected plant variety by the Government: Provided, however, That this subsection shall not confer a right of action on any certificate owner or any assignee of such owner with respect to any protected plant variety made by a person while in the employment or service of the United States, where such variety was prepared as a part of the official functions of the employee, or in the preparation of which Government time, material, or facilities were used: And provided further, That before such action against the United States has been instituted, the appropriate corporation owned or controlled by the United States or the head of the appropriate agency of the Government, as the case may be, is authorized to enter into an agreement with the certificate owner in full settlement and compromise, for the damages accrued to him by reason of such infringement and to settle the claim administratively out of available appropriations. (e) Subsections (b) and (c) of this section apply to exclusive rights in mask works under chapter 9 of title 17 , and to exclusive rights in designs under chapter 13 of title 17 , to the same extent as such subsections apply to copyrights.
TITLE 28 > PART V > CHAPTER 115 > § 1738C Prev | Next
§ 1738C. Certain acts, records, and proceedings and the effect thereof
How Current is This? No State, territory, or possession of the United States, or Indian tribe, shall be required to give effect to any public act, record, or judicial proceeding of any other State, territory, possession, or tribe respecting a relationship between persons of the same sex that is treated as a marriage under the laws of such other State, territory, possession, or tribe, or a right or claim arising from such relationship.
TITLE 28 > PART V > CHAPTER 121 > § 1861 Prev | Next
§ 1861. Declaration of policy
How Current is This? It is the policy of the United States that all litigants in Federal courts entitled to trial by jury shall have the right to grand and petit juries selected at random from a fair cross section of the community in the district or division wherein the court convenes. It is further the policy of the United States that all citizens shall have the opportunity to be considered for service on grand and petit juries in the district courts of the United States, and shall have an obligation to serve as jurors when summoned for that purpose.
TITLE 28 > PART V > CHAPTER 121 > § 1872 Prev | Next
§ 1872. Issues of fact in Supreme Court
How Current is This? In all original actions at law in the Supreme Court against citizens of the United States, issues of fact shall be tried by a jury.
TITLE 28 > PART V > CHAPTER 121 > § 1873 Prev | Next
§ 1873. Admiralty and maritime cases
How Current is This? In any case of admiralty and maritime jurisdiction relating to any matter of contract or tort arising upon or concerning any vessel of twenty tons or upward, enrolled and licensed for the coasting trade, and employed in the business of commerce and navigation between places in different states upon the lakes and navigable waters connecting said lakes, the trial of all issues of fact shall be by jury if either party demands it.
TITLE 28 > PART V > CHAPTER 127 > § 2007 Prev | Next
§ 2007. Imprisonment for debt
How Current is This? Wherever, under any law of the United States or under any rule, regulation, order, or requirement made pursuant to law, any matter is required or permitted to be supported, evidenced, established, or proved by the sworn declaration, verification, certificate, statement, oath, or affidavit, in writing of the person making the same (other than a deposition, or an oath of office, or an oath required to be taken before a specified official other than a notary public), such matter may, with like force and effect, be supported, evidenced, established, or proved by the unsworn declaration, certificate, verification, or statement, in writing of such person which is subscribed by him, as true under penalty of perjury, and dated, in substantially the following form:(a) A person shall not be imprisoned for debt on a writ of execution or other process issued from a court of the United States in any State wherein imprisonment for debt has been abolished. All modifications, conditions, and restrictions upon such imprisonment provided by State law shall apply to any writ of execution or process issued from a court of the United States in accordance with the procedure applicable in such State. (b) Any person arrested or imprisoned in any State on a writ of execution or other process issued from any court of the United States in a civil action shall have the same jail privileges and be governed by the same regulations as persons confined in like cases on process issued from the courts of such State. The same requirements governing discharge as are applicable in such State shall apply. Any proceedings for discharge shall be conducted before a United States magistrate judge for the judicial district wherein the defendant is held.
DECLARATION OF MR. T.W. ARMAN - DEMAND FOR ANSWER
INTERVENTION IN THE UNITED STATES OF AMERICA
EASTERN DISTRICT COURT OF CALIFORNIATWO MINERS & 360, 2744, 4400, 8000,
52,000, 88,000, 103 million ACRES of LAND
T.W. ARMAN and IRON MOUNTAIN
MINES, INC. et al, OWNER & OPERATOR
and on behalf of all others similarly situated
CITIZENS and STATESMEN in loco parentis,
parens patriae, supersedeas, qui tam, intervention.
v.
UNITED STATES OF AMERICA
STATE OF CALIFORNIA v.
BAYER CROP SCIENCE FKA AVENTIS
FRAUDULENT DELECTUS PERSONAE
ABSOLUTE SUPERSEDEAS OF RIGHT
WRIT DE EJECTIONE FIRMAE; WASTE
PETITION FOR ADVERSE CLAIMS WRITS
OF POSSESSION & EJECTMENT; FRAUD &
DECLARED DETRIMENT & NEGLECT &
FAILURE; DECEIT: NONUPLED DAMAGES
JOINT AND SEVERAL TRESPASSERS,
SURRENDER & EJECTMENT & TRUSTSCiv. 2:91-cv-00768- USCA No. 09−17411,
in re: USCA No. 09-70047, USCA No 09-71150
USCFC No. 09-207 L
FILED UNDER THE GREAT SEAL
INTERVENTION OF RIGHT, VOID & VACATE
ABSOLUTE ORDER FOR INSPECTION
PETITION FOR EMERGENCY REVIEW
ORDER FOR REINSTATMENT OF CLAIMS
ORDER FOR CONSOLIDATION OF COURTS
CLOSE AND HOLD OF THE MORMAER –
WRONGFUL TAKING, FALSE PRETENSES, &c.
ABSENCE OF DELECTUS PERSONAE, QUI TAM
INTERVENTION IN CAMERA STELLATA, TRUSTS
AND ILLEGAL COMBINATIONS, DEMAND FOR
SECURITY AND COLLATERAL. CLAYTON ACT
MR. T.W. ARMAN Annuit Coeptis; persona Insidiae;
Qui tam; in camera stellata: audacibus annue coeptis;
APPLICATION OF THE MONROE DOCTRINE
WITH VERIFICATION BY AFFIDAVIT, DANGER
TO OUR PEACE AND SAFETY,
FRAUD UPON THE COURT;
AUTHORITIES OF JUSTICES JAY, BRANDEIS,
TANEY, MENDOZA, BRANNON, & MARSHALL
GIVE US OUR LIBERTY! EVACUATE.
APEX LAW ACTION, REMISSION, REVERSION,
DETINUE SUR BAILMENT
LIEN & FORECLOSURE ON PIRACYCONSPIRACY; EVIL UPON THE PUBLIC TRUST; APEX LAW AGGRAVATED
LARCENY OF MINING COMPANY SECURITY & COLLATERAL LR10-20762
INNOCENT PRISONERS OF THE EPA - DOJ SINCE 1983
FREE MR. T.W. ARMAN & IRON MOUNTAIN MINES, INC.
Administrative - EPA Order 3120.1b Scientific misconduct, fabrication or knowing falsification of
data, research procedures, or data analysis is an offense which can result in immediate removal/ Suspension
and Debarment / Civil Sanctions / Fines / Local AUSA Must Decide If Fraud Meets Criminal
Prosecution Threshold / Culpability / Harm
Laboratory Fraud, Title 18 United States Criminal Code; Is It Criminal or Civil?
Fraud - 18 USC 1341 - 1343 , PROCEDURAL FRAUD, MEASUREMENT FRAUD
False Statements - 18 USC 1001
Conspiracy - 18 USC 371
Concealment of a felony - 18 USC 4 (misprision)
False Claims - 18 USC 287
Obstruction of Justice - 18 USC 1505
Penalties up to 20 years imprisonment for destroying, concealing or falsifying records with intent to
obstruct or impede a legal investigation
"Government is not reason; it is not eloquence; it is force. Like fire; it is a dangerous servant and a
fearful master." - George WashingtonINTERVENTION OF RIGHT, REINSTATEMENT AND CONSOLIDATION
We consider a question that has split the federal courts: May a non-settling PRP intervene in litigation
to oppose a consent decree incorporating a settlement that, if approved, would bar contribution from
the settling PRP? We join the Eighth and Tenth Circuits in holding that the answer is “yes.”
in looking at the substance of the matter, they can see that it "is a clear, unmistakable infringement
of rights secured by the fundamental law." Booth v. Illinois , 184 U.S. 425 , 429 .
ABSENCE OF DELECTUS PERSONAE
I have received copies by fax of motions and orders from your court and most recent correspondence
from John Hutchens such as the following. Your court is a manifest injustice in error coram vobis.
TO THE CLERK OF THE COURT MR. HARRY VINE AND JUDGE JOHN MENDEZ
ERROR AND MISTAKE OF IDENTITY, FATAL DEFECT OF SERVICE, FRAUD JUDGE
Dear Mr. Harry Vine,
I received an envelope at P.O. box 182, Canyon, Ca. 94516, but apparently addressed to Mr. T.W.
Arman. As you know, Mr. Arman has been the subject of litigation in your Court since 1991, so you
should be able to address correspondence to him without my assistance.
As this is not the first time I have informed you of this matter, I assume no responsibility for your
failure to effect service upon Mr. T.W. Arman in these matters.
That said, I would like to take this opportunity to inform you of some other corrections that need to
be made to your court that you should be aware of.
First, there appears to be some confusion in your court concerning ARMAN. Your court continues to
oppress Mr. T.W. Arman regarding certain mine drainage at Iron Mountain Mine, which is actually
the result of the actions of ARMAN, “archaeal Richmond Mine acidophilic nanoorganisms”, so
named by Dr. Jillian Banfield of the University of California at Berkeley, and if you would have addressed
your summary judgment to ARMAN at this address, would probably have been correct.
As the curator for the College of the Hummingbird and the Hummingbird Institute, and at the behest
of Mr. T.W. Arman, the Arman Mines Institute, the Arman Mines Ministry of Natural Resources, the
Arman Mines Hazard and Remediation Directorate and Disaster Assistance Directorate, it is my duty
as resident expert to convey to you the facts concerning allegations of ‘hazardous’ substances.
Since there are no "hazardous" materials at Iron Mountain Mines we wish you would stop demonizing,
libeling and slandering the good name of Iron Mountain Mine and Mr. T.W. Arman, as these damages
continue to mount against the United States of America State of California and your court.
Furthermore, since Mr. T.W. Arman has been trying for years to supply his minerals to farmers, gardeners,
landscapers, horticulturalists, and others who work in agricultural enterprises that provide our
food and sustain our environment, and it is well documented that minerals are necessary, for instance:
“Minerals in the soil control the metabolism of plants, animals and man.
All of life will be either healthy or unhealthy according to the fertility of the soil.” This was a
statement made by Dr Alexus Carrel, Nobel Prize Winner, in 1912. Almost a hundred years
later, agriculturist and writer, Graham Harvey, wrote in The Daily Telegraph , 18 February
2006: “Britain's once fertile soil has been systematically stripped of its crucial minerals by industrial
farming, leaving our fruit and vegetables tasteless and a nation in chronic ill health.”
William Albrecht (1896-1974 Illinois), referred to as the Father of Soil Research for his pioneering
studies of the effects of infertile soil on plants and animals, warned in 1930s that if the
land was not remineralised, there would be a massive increase in human degenerative diseases.
Therefore, we are of the opinion that your actions are an act of aggression and war crime of attrition
on us. Please void and vacate, grant us intervention, remission, reversion, & detinue sur bailment.
In fact our minerals were naturally distributed by the cycles of the seasons and the annual flooding
that for half a million years fertilized the great valleys of California. In 1943 the United States of
America State of California constructed the Shasta dam forever destroying this process, at the same
time killing all the native anadramous (invasive and migratory species) such as Chinook Salmon of
the McCloud river that were propagated around the world by the United States Baird Hatchery.
Now this court has apparently tried to blame Mr. T.W. Arman for these fisheries demise.
We really must take exception to the federal government perpetration such a heinous deception.
That you and your court aid and abet the perpetrators of this villainy is despotic and alarming."There is no crueler tyranny than that which is exercised under cover of law, and with the colors
of justice" - U.S. v. Jannotti, 673 F.2d 578, 614 (3d Cir. 1982)TITLE 15 > CHAPTER 1 > § 1
§ 1. Trusts, etc., in restraint of trade illegal; penalty
Every contract, combination in the form of trust or otherwise, or conspiracy, in restraint of trade or
commerce among the several States, or with foreign nations, is declared to be illegal. Every person
who shall make any contract or engage in any combination or conspiracy hereby declared to be illegal
shall be deemed guilty of a felony, and, on conviction thereof, shall be punished by fine not exceeding
$100,000,000 if a corporation, or, if any other person, $1,000,000, or by imprisonment not
exceeding 10 years, or by both said punishments, in the discretion of the court.
TITLE 15 > CHAPTER 1 > § 2
§ 2. Monopolizing trade a felony; penalty
Every person who shall monopolize, or attempt to monopolize, or combine or conspire with any
other person or persons, to monopolize any part of the trade or commerce among the several States,
or with foreign nations, shall be deemed guilty of a felony, and, on conviction thereof, shall be punished
by fine not exceeding $100,000,000 if a corporation, or, if any other person, $1,000,000, or by
imprisonment not exceeding 10 years, or by both said punishments, in the discretion of the court.
TITLE 15 > CHAPTER 1 > § 3
§ 3. Trusts in Territories or District of Columbia illegal; combination a felony
(a) Every contract, combination in form of trust or otherwise, or conspiracy, in restraint of trade or
commerce in any Territory of the United States or of the District of Columbia, or in restraint of tradeTITLE 15 > CHAPTER 1 > § 1
§ 1. Trusts, etc., in restraint of trade illegal; penalty
Every contract, combination in the form of trust or otherwise, or conspiracy, in restraint of trade or
commerce among the several States, or with foreign nations, is declared to be illegal. Every person
who shall make any contract or engage in any combination or conspiracy hereby declared to be illegal
shall be deemed guilty of a felony, and, on conviction thereof, shall be punished by fine not exceeding
$100,000,000 if a corporation, or, if any other person, $1,000,000, or by imprisonment not
exceeding 10 years, or by both said punishments, in the discretion of the court.
TITLE 15 > CHAPTER 1 > § 2
§ 2. Monopolizing trade a felony; penalty
Every person who shall monopolize, or attempt to monopolize, or combine or conspire with any
other person or persons, to monopolize any part of the trade or commerce among the several States,
or with foreign nations, shall be deemed guilty of a felony, and, on conviction thereof, shall be punished
by fine not exceeding $100,000,000 if a corporation, or, if any other person, $1,000,000, or by
imprisonment not exceeding 10 years, or by both said punishments, in the discretion of the court.
TITLE 15 > CHAPTER 1 > § 3
§ 3. Trusts in Territories or District of Columbia illegal; combination a felony
(a) Every contract, combination in form of trust or otherwise, or conspiracy, in restraint of trade or
commerce in any Territory of the United States or of the District of Columbia, or in restraint of tradeTITLE 15 > CHAPTER 1 > § 1
§ 1. Trusts, etc., in restraint of trade illegal; penalty
Every contract, combination in the form of trust or otherwise, or conspiracy, in restraint of trade or
commerce among the several States, or with foreign nations, is declared to be illegal. Every person
who shall make any contract or engage in any combination or conspiracy hereby declared to be illegal
shall be deemed guilty of a felony, and, on conviction thereof, shall be punished by fine not exceeding
$100,000,000 if a corporation, or, if any other person, $1,000,000, or by imprisonment not
exceeding 10 years, or by both said punishments, in the discretion of the court.
TITLE 15 > CHAPTER 1 > § 2
§ 2. Monopolizing trade a felony; penalty
Every person who shall monopolize, or attempt to monopolize, or combine or conspire with any
other person or persons, to monopolize any part of the trade or commerce among the several States,
or with foreign nations, shall be deemed guilty of a felony, and, on conviction thereof, shall be punished
by fine not exceeding $100,000,000 if a corporation, or, if any other person, $1,000,000, or by
imprisonment not exceeding 10 years, or by both said punishments, in the discretion of the court.
TITLE 15 > CHAPTER 1 > § 3
§ 3. Trusts in Territories or District of Columbia illegal; combination a felony
(a) Every contract, combination in form of trust or otherwise, or conspiracy, in restraint of trade or
commerce in any Territory of the United States or of the District of Columbia, or in restraint of tradeTITLE 15 > CHAPTER 1 > § 1
§ 1. Trusts, etc., in restraint of trade illegal; penalty
Every contract, combination in the form of trust or otherwise, or conspiracy, in restraint of trade or
commerce among the several States, or with foreign nations, is declared to be illegal. Every person
who shall make any contract or engage in any combination or conspiracy hereby declared to be illegal
shall be deemed guilty of a felony, and, on conviction thereof, shall be punished by fine not exceeding
$100,000,000 if a corporation, or, if any other person, $1,000,000, or by imprisonment not
exceeding 10 years, or by both said punishments, in the discretion of the court.
TITLE 15 > CHAPTER 1 > § 2
§ 2. Monopolizing trade a felony; penalty
Every person who shall monopolize, or attempt to monopolize, or combine or conspire with any
other person or persons, to monopolize any part of the trade or commerce among the several States,
or with foreign nations, shall be deemed guilty of a felony, and, on conviction thereof, shall be punished
by fine not exceeding $100,000,000 if a corporation, or, if any other person, $1,000,000, or by
imprisonment not exceeding 10 years, or by both said punishments, in the discretion of the court.
TITLE 15 > CHAPTER 1 > § 3
§ 3. Trusts in Territories or District of Columbia illegal; combination a felony
(a) Every contract, combination in form of trust or otherwise, or conspiracy, in restraint of trade or
commerce in any Territory of the United States or of the District of Columbia, or in restraint of tradesuch manufacturing technologies to United States industries. (c) Reports The Council, through the
Director of the National Nanotechnology Coordination Office, shall submit to the Senate Committee
on Commerce, Science, and Transportation and the House of Representatives Committee on Science—
(1) within 6 months after December 3, 2003, a report identifying which agency shall be the
lead agency and which other agencies, if any, will be responsible for establishing the Centers described
in this section; and (2) within 18 months after December 3, 2003, a report describing how the
Centers described in this section have been established.
TITLE 15 > CHAPTER 1 > § 21
§ 21. Enforcement provisions
(a) Commission, Board, or Secretary authorized to enforce compliance Authority to enforce compliance
with sections 13 , 14 , 18 , and 19 of this title by the persons respectively subject thereto is
vested in the Surface Transportation Board where applicable to common carriers subject to jurisdiction
under subtitle IV of title 49 ; in the Federal Communications Commission where applicable to
common carriers engaged in wire or radio communication or radio transmission of energy; in the
Secretary of Transportation where applicable to air carriers and foreign air carriers subject to part A
of subtitle VII of title 49 ; in the Board of Governors of the Federal Reserve System where applicable
to banks, banking associations, and trust companies; and in the Federal Trade Commission where
applicable to all other character of commerce to be exercised as follows: (b) Issuance of complaints
for violations; hearing; intervention; filing of testimony; report; cease and desist orders; reopening
and alteration of reports or orders Whenever the Commission, Board, or Secretary vested with jurisdiction
thereof shall have reason to believe that any person is violating or has violated any of the
provisions of sections 13 , 14 , 18 , and 19 of this title, it shall issue and serve upon such person and
the Attorney General a complaint stating its charges in that respect, and containing a notice of a hearing
upon a day and at a place therein fixed at least thirty days after the service of said complaint. The
person so complained of shall have the right to appear at the place and time so fixed and show cause
why an order should not be entered by the Commission, Board, or Secretary requiring such person to
cease and desist from the violation of the law so charged in said complaint. The Attorney General
shall have the right to intervene and appear in said proceeding and any person may make application,and upon good cause shown may be allowed by the Commission, Board, or Secretary, to intervene
and appear in said proceeding by counsel or in person. The testimony in any such proceeding shall be
reduced to writing and filed in the office of the Commission, Board, or Secretary. If upon such hearing
the Commission, Board, or Secretary, as the case may be, shall be of the opinion that any of the
provisions of said sections have been or are being violated, it shall make a report in writing, in which
it shall state its findings as to the facts, and shall issue and cause to be served on such person an order
requiring such person to cease and desist from such violations, and divest itself of the stock, or other
share capital, or assets, held or rid itself of the directors chosen contrary to the provisions of sections
18 and 19 of this title, if any there be, in the manner and within the time fixed by said order. Until the
expiration of the time allowed for filing a petition for review, if no such petition has been duly filed
within such time, or, if a petition for review has been filed within such time then until the record in
the proceeding has been filed in a court of appeals of the United States, as hereinafter provided, the
Commission, Board, or Secretary may at any time, upon such notice and in such manner as it shall
deem proper, modify or set aside, in whole or in part, any report or any order made or issued by it
under this section. After the expiration of the time allowed for filing a petition for review, if no such
petition has been duly filed within such time, the Commission, Board, or Secretary may at any time,
after notice and opportunity for hearing, reopen and alter, modify, or set aside, in whole or in part,
any report or order made or issued by it under this section, whenever in the opinion of the Commission,
Board, or Secretary conditions of fact or of law have so changed as to require such action or if
the public interest shall so require: Provided, however, That the said person may, within sixty days
after service upon him or it of said report or order entered after such a reopening, obtain a review
thereof in the appropriate court of appeals of the United States, in the manner provided in subsection
(c) of this section. (c) Review of orders; jurisdiction; filing of petition and record of proceeding; conclusiveness
of findings; additional evidence; modification of findings; finality of judgment and decree
Any person required by such order of the commission, board, or Secretary to cease and desist
from any such violation may obtain a review of such order in the court of appeals of the United
States for any circuit within which such violation occurred or within which such person resides or
carries on business, by filing in the court, within sixty days after the date of the service of such order,a written petition praying that the order of the commission, board, or Secretary be set aside. A copy
of such petition shall be forthwith transmitted by the clerk of the court to the commission, board, or
Secretary, and thereupon the commission, board, or Secretary shall file in the court the record in the
proceeding, as provided in section 2112 of title 28 . Upon such filing of the petition the court shall
have jurisdiction of the proceeding and of the question determined therein concurrently with the
commission, board, or Secretary until the filing of the record, and shall have power to make and enter
a decree affirming, modifying, or setting aside the order of the commission, board, or Secretary, and
enforcing the same to the extent that such order is affirmed, and to issue such writs as are ancillary to
its jurisdiction or are necessary in its judgment to prevent injury to the public or to competitors
pendente lite. The findings of the commission, board, or Secretary as to the facts, if supported by
substantial evidence, shall be conclusive. To the extent that the order of the commission, board, or
Secretary is affirmed, the court shall issue its own order commanding obedience to the terms of such
order of the commission, board, or Secretary. If either party shall apply to the court for leave to adduce
additional evidence, and shall show to the satisfaction of the court that such additional evidence
is material and that there were reasonable grounds for the failure to adduce such evidence in the proceeding
before the commission, board, or Secretary, the court may order such additional evidence to
be taken before the commission, board, or Secretary, and to be adduced upon the hearing in such
manner and upon such terms and conditions as to the court may seem proper. The commission,
board, or Secretary may modify its findings as to the facts, or make new findings, by reason of the
additional evidence so taken, and shall file such modified or new findings, which if supported by
substantial evidence, shall be conclusive, and its recommendation, if any, for the modification or setting
aside of its original order, with the return of such additional evidence. The judgment and decree
of the court shall be final, except that the same shall be subject to review by the Supreme Court upon
certiorari, as provided in section 1254 of title 28 . (d) Exclusive jurisdiction of Court of Appeals
Upon the filing of the record with its jurisdiction of the court of appeals to affirm, enforce, modify, or
set aside orders of the commission, board, or Secretary shall be exclusive. (e) Liability under antitrust
laws No order of the commission, board, or Secretary or judgment of the court to enforce the same
shall in anywise relieve or absolve any person from any liability under the antitrust laws. (f) Serviceof complaints, orders and other processes Complaints, orders, and other processes of the commission,
board, or Secretary under this section may be serviced by anyone duly authorized by the commission,
board, or Secretary, either (1) by delivering a copy thereof to the person to be served, or to a member
of the partnership to be served, or to the president, secretary, or other executive officer or a director
of the corporation to be served; or (2) by leaving a copy thereof at the residence or the principal office
or place of business of such person; or (3) by mailing by registered or certified mail a copy
thereof addressed to such person at his or its residence or principal office or place of business. The
verified return by the person so serving said complaint, order, or other process setting forth the manner
of said service shall be proof of the same, and the return post office receipt for said complaint,
order, or other process mailed by registered or certified mail as aforesaid shall be proof of the service
of the same. (g) Finality of orders generally Any order issued under subsection (b) of this section
shall become final— (1) upon the expiration of the time allowed for filing a petition for review, if no
such petition has been duly filed within such time; but the commission, board, or Secretary may
thereafter modify or set aside its order to the extent provided in the last sentence of subsection (b) of
this section; or (2) upon the expiration of the time allowed for filing a petition for certiorari, if the
order of the commission, board, or Secretary has been affirmed, or the petition for review has been
dismissed by the court of appeals, and no petition for certiorari has been duly filed; or (3) upon the
denial of a petition for certiorari, if the order of the commission, board, or Secretary has been affirmed
or the petition for review has been dismissed by the court of appeals; or (4) upon the expiration
of thirty days from the date of issuance of the mandate of the Supreme Court, if such Court directs
that the order of the commission, board, or Secretary be affirmed or the petition for review be
dismissed. (h) Finality of orders modified by Supreme Court If the Supreme Court directs that the
order of the commission, board, or Secretary be modified or set aside, the order of the commission,
board, or Secretary rendered in accordance with the mandate of the Supreme Court shall become final
upon the expiration of thirty days from the time it was rendered, unless within such thirty days
either party has instituted proceedings to have such order corrected to accord with the mandate, in
which event the order of the commission, board, or Secretary shall become final when so corrected.
(i) Finality of orders modified by Court of Appeals If the order of the commission, board, or Secretary is modified or set aside by the court of appeals, and if (1) the time allowed for filing a petition
for certiorari has expired and no such petition has been duly filed, or (2) the petition for certiorari has
been denied, or (3) the decision of the court has been affirmed by the Supreme Court then the order
of the commission, board, or Secretary rendered in accordance with the mandate of the court of appeals
shall become final on the expiration of thirty days from the time such order of the commission,
board, or Secretary was rendered, unless within such thirty days either party has instituted proceedings
to have such order corrected so that it will accord with the mandate, in which event the order of
the commission, board, or Secretary shall become final when so corrected. (j) Finality of orders issued
on rehearing ordered by Court of Appeals or Supreme Court If the Supreme Court orders a rehearing;
or if the case is remanded by the court of appeals to the commission, board, or Secretary for
a rehearing, and if (1) the time allowed for filing a petition for certiorari has expired, and no such petition
has been duly filed, or (2) the petition for certiorari has been denied, or (3) the decision of the
court has been affirmed by the Supreme Court, then the order of the commission, board, or Secretary
rendered upon such rehearing shall become final in the same manner as though no prior order of the
commission, board, or Secretary had been rendered. (k) “Mandate” defined As used in this section
the term “mandate”, in case a mandate has been recalled prior to the expiration of thirty days from
the date of issuance thereof, means the final mandate. (l) Penalties Any person who violates any order
issued by the commission, board, or Secretary under subsection (b) of this section after such order
has become final, and while such order is in effect, shall forfeit and pay to the United States a
civil penalty of not more than $5,000 for each violation, which shall accrue to the United States and
may be recovered in a civil action brought by the United States. Each separate violation of any such
order shall be a separate offense, except that in the case of a violation through continuing failure or
neglect to obey a final order of the commission, board, or Secretary each day of continuance of such
failure or neglect shall be deemed a separate offense.STRIKE THE CONSENT DECREE, VOID AND VACATE, REMISSION, REVERSION,
DETINUE SUR BAILMENT. QUANTUM DAMNIFICATUS REMEDY DEMANDED
CONDEMNATION OF THE CHAPPIE-SHASTA OHVA, ON MERITS - ADVERSE CLAIMS
All premises having been duly considered, Relator now moves this honorable Court, on behalf of the
United States of America State of California as private attorneys general and Inspector General:
QUANTUM DAMNIFICATUS QUARE IMPEDIT
The name of a writ directed by the king to the sheriff, by which he is required to command certain
persons by name to permit him, the king, to present a fit person to a certain church, which is void, and
which belongs to his gift, and of which the said defendants hinder the king, as it is said, and unless,
etc. then to summon, etc. the defendants so that they be and appear, etc. GRANT US OUR PEACE.
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). LIQUIDATE AIG, CLAWBACK TARP, OPEN THE MINT.
Commission of the Hazard And Remediation Directorate::_______________________________
/s/ T.W. Arman, owner of Iron Mountain and Arman Mines Ministry Arboretum, Gales & Stannaries
I, T.W. Arman, 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.
Date:_July 27, 2010_ Signature:_________________________________
Verified affidavit: /s/ T.W. Arman, Mayor of the Armanshire, Prime Minister of Natural Resources
Grantee, Patentee, Locator, Senior Directorate of the Ministry of Mining & Principles of Pigments.
Owner of ‘ARMAN’, “archaeal Richmond Mine acidophilic nanoorganisms”, SENIOR DIRECTOR
OF THE ARMAN MINES MINISTRY OF NATURE ARBORETUM, GALES, AND STANNARIES
PRIVATE INSPECTOR GENERAL OF THE IRON MOUNTAIN MINE SUPERFUND SITE
Nature's Own Nano Gold Found
Larry O'Hanlon, Discovery News
July 17, 2008 -- Miniscule triangular and hexagonal plates of gold less than 20 nanometers thin and identical to those manufactured by humans have been found occurring naturally in salty groundwaters of Western Australia.
The Aussie nano gold in the water gets as thin as six nanometers and previously escaped detection by electron microscopes, say Australian researchers. Nano gold is being developed for use in for drug delivery , optics, superconductors and catalysts, but until now, it was thought to be entirely manmade.
"It's very, very similar to the colloidal gold people have been growing in laboratories," said Robert Hough of the Mining and Exploration branch of Australian government's research agency, CSIRO . He is the lead author of a paper describing the nano gold in the July issue of Geology .
The gold nano particles had appeared as ghostly grey shapes in scanning electron microscope (SEM) images. By applying what's called "high-resolution secondary electron imaging in a field emission SEM," Hough and his team were able to look directly at the ultra thin gold particles.
"I am surprised," said Pablo Jadzinsky who uses nanogold in organic chemistry research at Stanford University.
Nano gold is currently a hot topic for research and development, Jadzinsky said, and getting hotter.
At the moment, labs make their own nano gold by dissolving larger pieces of gold and growing the nano crystals. But they have suffered from some of the same difficulties as the geologists looking for natural nano gold: being sure they know just what sort of nano gold particle they are dealing with.
Whether natural nano gold will be of any use to labs is unclear, said Jadzinsky, because it depends on how hard it would be to purify the salty ground waters and isolate just the sort of nano gold that is desired.
Geologists aren't worried about laboratory applications, however. Instead they are looking at how the nano gold could lead to large, extractable deposits of the precious metal.
"It has big implications for exploration," said Hough. "It's really a fundamental of how gold moves around."
And now that they know how to look for the nano gold, there is a way to look for signs of gold deposits anywhere there is salty groundwater, said Hough.
"Previously we didn't have the tools to look at (nano) gold directly," said Hough.
Now they know: Thars gold in them thar ground waters.
Chivalric orders are societies and fellowships of knights [ 1 ] that have been created by European monarchs in imitation of the military orders of the Crusades . After the crusades, the memory of these crusading military orders became idealised and romanticised, resulting in the late medieval notion of chivalry , and is reflected in the Arthurian romances of the time.
Modern historiography tends to take the fall of Acre in 1291 as the final end of the age of the crusades. But in contemporary understanding, many further crusades against the Turks were planned and partly executed throughout the 14th century and well into the 15th century. The late medieval chivalric orders thus very much understood themselves as reflecting an ongoing military effort against Islam, even though such an effort with the rise of the Ottoman Empire and the fall of Constantinople in the 1450s was without realistic hope of success. During the 15th century, orders of chivalry became more and more a mere courtly fashion and could be created ad-hoc , some of them purely honorific, consisting of nothing but the badge. These institutions in turn gave rise to the modern-day orders of merit .
The Most Ancient and Most Noble Order of the Thistle is an order of chivalry associated with Scotland . The current version of the Order was founded in 1687 by King James VII of Scotland (also known as James II of England ) who asserted that he was reviving an earlier Order. The Order consists of the Sovereign and sixteen Knights and Ladies, as well as certain "extra" knights (members of the British Royal Family and foreign monarchs). The Sovereign alone grants membership of the Order; he or she is not advised by the Government, as occurs with most other Orders.
The Order's primary emblem is the thistle , the national flower of Scotland. The motto is Nemo me impune lacessit ( Latin for "No one provokes me with impunity "). [ 1 ] The same motto appears on the Royal Coat of Arms of the United Kingdom for use in Scotland and some pound coins , and is also the motto of the Royal Regiment of Scotland , Scots Guards , and Royal Scots Dragoon Guards . The patron saint of the Order is St Andrew .
Most British orders of chivalry cover the whole United Kingdom , but the three most exalted ones each pertain to one constituent country only. The Order of the Thistle, which pertains to Scotland, is the second-most senior in precedence. Its equivalent in England , The Most Noble Order of the Garter , is the oldest documented order of chivalry in the United Kingdom, dating to the middle fourteenth century. In 1783 an Irish equivalent, The Most Illustrious Order of St Patrick , was founded, but has now fallen dormant.
ames VII claimed that he was reviving an earlier Order, but this issue is marked by widely varying claims.
According to legend, Achaius, King of Scots (possibly coming to the aid of Óengus mac Fergusa , King of the Picts ), while engaged in battle at Athelstaneford with the Saxon King Aethelstan of East Anglia , saw in the heavens the cross of St Andrew . [ 2 ] After he won the battle, Achaius is said to have established the Order of the Thistle, dedicating it to the saint, in 786. [ 3 ] The tale is not credible, because the two individuals purported to have fought each other did not even live in the same century. [ 4 ] Another story states that Achaius founded the Order in 809 to commemorate an alliance with the Emperor Charlemagne . There is some credibility to this story given the fact that Charlemagne did employ Scottish bodyguards. [ 5 ] There is, in addition, a tradition that the order was instituted, or re-instituted, on the battlefield by Robert the Bruce at Bannockburn . [ 6 ]
The earliest claim now taken seriously by historians is that James III , who adopted the thistle as the royal plant badge and issued coins depicting thistles, [ 7 ] founded the Order during the fifteenth century. [ 8 ] Others state that James V , who had been admitted to the Order of the Golden Fleece in the Holy Roman Empire , the Order of St Michael in France , and the Order of the Garter in England, established the Order of the Thistle in 1540 because he was embarrassed that he had no honour to confer on foreign monarchs. [ citation needed ] He allegedly conferred membership of the "Order of the Burr or Thissil" on King Francis I of France . [ 9 ]
However there is no conclusive evidence for a fifteenth century order. Some Scottish order of chivalry probably existed during the sixteenth century, possibly founded by James V and called the Order of St. Andrew, but had lapsed by the end of that century. [ 10 ] [ 11 ]
James VII issued letters patent "reviving and restoring the Order of the Thistle to its full glory, lustre and magnificency" on 29 May 1687. [ 12 ] [ 13 ] Eight knights, out of a maximum of twelve, were appointed, but the King was deposed in 1688. [ 14 ] His successors, the joint monarchs William and Mary , did not make any further appointments to the Order, which consequently fell into desuetude . [ citation needed ] In 1703, however, Anne once again revived the Order of the Thistle, which survives to this day. [ 15 ]
ames VII claimed that he was reviving an earlier Order, but this issue is marked by widely varying claims.
According to legend, Achaius, King of Scots (possibly coming to the aid of Óengus mac Fergusa , King of the Picts ), while engaged in battle at Athelstaneford with the Saxon King Aethelstan of East Anglia , saw in the heavens the cross of St Andrew . [ 2 ] After he won the battle, Achaius is said to have established the Order of the Thistle, dedicating it to the saint, in 786. [ 3 ] The tale is not credible, because the two individuals purported to have fought each other did not even live in the same century. [ 4 ] Another story states that Achaius founded the Order in 809 to commemorate an alliance with the Emperor Charlemagne . There is some credibility to this story given the fact that Charlemagne did employ Scottish bodyguards. [ 5 ] There is, in addition, a tradition that the order was instituted, or re-instituted, on the battlefield by Robert the Bruce at Bannockburn . [ 6 ]
The earliest claim now taken seriously by historians is that James III , who adopted the thistle as the royal plant badge and issued coins depicting thistles, [ 7 ] founded the Order during the fifteenth century. [ 8 ] Others state that James V , who had been admitted to the Order of the Golden Fleece in the Holy Roman Empire , the Order of St Michael in France , and the Order of the Garter in England, established the Order of the Thistle in 1540 because he was embarrassed that he had no honour to confer on foreign monarchs. [ citation needed ] He allegedly conferred membership of the "Order of the Burr or Thissil" on King Francis I of France . [ 9 ]
However there is no conclusive evidence for a fifteenth century order. Some Scottish order of chivalry probably existed during the sixteenth century, possibly founded by James V and called the Order of St. Andrew, but had lapsed by the end of that century. [ 10 ] [ 11 ]
James VII issued letters patent "reviving and restoring the Order of the Thistle to its full glory, lustre and magnificency" on 29 May 1687. [ 12 ] [ 13 ] Eight knights, out of a maximum of twelve, were appointed, but the King was deposed in 1688. [ 14 ] His successors, the joint monarchs William and Mary , did not make any further appointments to the Order, which consequently fell into desuetude . [ citation needed ] In 1703, however, Anne once again revived the Order of the Thistle, which survives to this day. [ 15 ]
For the Order's great occasions, such as its annual service each June or July, as well for coronations , the Knights and Ladies wear an elaborate costume:
- The mantle is a green robe worn over their suits or military uniforms. The mantle is lined with white taffeta; it is tied with green and gold tassels. On the left shoulder of the mantle, the star of the Order (see below) is depicted. [ 34 ]
- The hat is made of black velvet and is plumed with white feathers with a black egret or heron's top in the middle. [ 34 ]
- The collar is made of gold and depicts thistles and sprigs of rue . It is worn over the mantle. [ 34 ]
- The St Andrew , also called the badge-appendant , is worn suspended from the collar. It comprises a gold enamelled depiction of St Andrew, wearing a green gown and purple coat, holding a white saltire . [ 34 ] Gold rays of a glory are shown emanating from St Andrew's head. [ 35 ]
Aside from these special occasions, however, much simpler insignia are used whenever a member of the Order attends an event at which decorations are worn.
- The star of the Order consists of a silver St Andrew's saltire, with clusters of rays between the arms thereof. In the centre is depicted a green circle bearing the motto of the Order in gold majuscules ; within the circle, there is depicted a thistle on a gold field. It is worn pinned to the left breast. [ 36 ] (Since the Order of the Thistle is the second-most senior chivalric order in the UK, a member will wear its star above that of other orders to which he or she belongs, except that of the Order of the Garter; up to four orders' stars may be worn.) [ 37 ]
- The broad riband is a dark green sash worn across the body, from the left shoulder to the right hip. [ 38 ]
- At the right hip of the Riband, the badge of the Order is attached. The badge depicts St Andrew in the same form as the badge-appendant surrounded by the Order's motto. [ 39 ]
However, on certain collar days designated by the Sovereign, [ 40 ] members attending formal events may wear the Order's collar over their military uniform, formal wear, or other costume. They will then substitute the broad riband of another order to which they belong (if any), since the Order of the Thistle is represented by the collar. [ 41 ]
Upon the death of a Knight or Lady, the insignia must be returned to the Central Chancery of the Orders of Knighthood. The badge and star are returned personally to the Sovereign by the nearest relative of the deceased. [ 42 ]
Officers of the Order also wear green robes. [ 43 ] The Gentleman Usher of the Green Rod also bears, as the title of his office suggests, a green rod. [ 44 ]
When James VII created the modern Order in 1687, he directed that the Abbey Church at the Palace of Holyroodhouse be converted to a Chapel for the Order of the Thistle, perhaps copying the idea from the Order of the Garter (whose chapel is located in Windsor Castle ). James VII, however, was deposed by 1688; the Chapel, meanwhile, had been destroyed during riots. The Order did not have a Chapel until 1911, when one was added onto St Giles High Kirk in Edinburgh . [ 45 ] Each year, the Sovereign resides at the Palace of Holyroodhouse for a week in June or July; during the visit, a service for the Order is held. Any new Knights or Ladies are installed at annual services. [ 8 ]
Each member of the Order, including the Sovereign, is allotted a stall in the Chapel, above which his or her heraldic devices are displayed. Perched on the pinnacle of a knight's stall is his helm, decorated with mantling and topped by his crest. If he is a peer , the coronet appropriate to his rank is placed beneath the helm. [ 46 ] Under the laws of heraldry, women, other than monarchs, do not normally bear helms nor crests; [ 47 ] instead, the coronet alone is used (if she is a peeress or princess). [ 48 ] Lady Marion Fraser had a helm and crest included when she was granted arms; these are displayed above her stall in the same manner as for knights. [ 49 ] Unlike other British Orders, the armorial banners of Knights and Ladies of the Thistle are not hung in the chapel, but instead in an adjacent part of St Giles High Kirk. [ 50 ] The Thistle Chapel does, however, bear the arms of members living and deceased on stall plates. These enamelled plates are affixed to the back of the stall and display its occupant's name, arms, and date of admission into the Order. [ 51 ]
Upon the death of a Knight, helm, mantling, crest (or coronet or crown) and sword are taken down. The stall plates, however, are not removed; rather, they remain permanently affixed to the back of the stall, so that the stalls of the chapel are festooned with a colourful record of the Order's Knights (and now Ladies) since 1911. [ 52 ] The entryway just outside the doors of the chapel has the names of the Order's Knights from before 1911 inscribed into the walls giving a complete record of the members of the order.
Knights and Ladies of the Thistle are assigned positions in the order of precedence , ranking above all others of knightly rank except the Order of the Garter, and above baronets. Wives, sons, daughters and daughters-in-law of Knights of the Thistle also feature on the order of precedence; relatives of Ladies of the Thistle, however, are not assigned any special precedence. (Generally, individuals can derive precedence from their fathers or husbands, but not from their mothers or wives.) [ 53 ]
Knights of the Thistle prefix "Sir", and Ladies prefix "Lady", to their forenames. Wives of Knights may prefix "Lady" to their surnames, but no equivalent privilege exists for husbands of Ladies. Such forms are not used by peers and princes, except when the names of the former are written out in their fullest forms. [ 54 ]
Knights and Ladies use the post-nominal letters "KT" and "LT" respectively. [ 8 ] When an individual is entitled to use multiple post-nominal letters, "KT" or "LT" appears before all others, except "Bt" or "Btss" ( Baronet or Baronetess ), "VC" ( Victoria Cross ), "GC" ( George Cross ) and "KG" or "LG" (Knight or Lady of the Garter). [ 37 ]
Knights and Ladies may encircle their arms with the circlet (a green circle bearing the Order's motto) and the collar of the Order; the former is shown either outside or on top of the latter. The badge is depicted suspended from the collar. [ 55 ] The Royal Arms depict the collar and motto of the Order of the Thistle only in Scotland; they show the circlet and motto of the Garter in England, Wales and Northern Ireland. [ 56 ]
Knights and Ladies are also entitled to receive heraldic supporters . This high privilege is only shared by members of the Royal Family, peers, Knights and Ladies of the Garter, and Knights and Dames Grand Cross of the junior orders of chivalry. [ 57 ]
In 1997, golfing legend Jack Nicklaus opened the Old Works Golf Course, which he designed. Praised by Golf Journal as “world class . . . with 18 fascinating holes,” the Old Works course was built over the cleaned up Anaconda Company Smelter site in Montana.
Building a world class golf course over a shut-down copper mine was the result of a successful partnership between Nicklaus, EPA, the State of Montana, the Anaconda community, the local government, and the Atlantic Richfield Company (ARCO), the potentially responsible party.
EPA entered into a consent decree with ARCO to implement the cleanup remedy. Concerned citizens of Anaconda used a TAG to review EPA studies and relay their findings to the rest of the community. EPA, the State, the community, and ARCO worked together to develop a cost-effective re-vegetation plan to prevent contamination from spreading. EPA also helped orchestrate an agreement that transferred ownership of the golf course from ARCO to the County government, including a condition that required revenues be used for the continued economic growth of the Anaconda area.At Anaconda, the Superfund reforms came together, not only to clean up the site, but to transform it for the community’s economic betterment. When the smelter shut down, the community was worried that Anaconda would turn into a ghost town. Now tourists come from miles around to play golf – and many come back when they discover that the area also offers excellent skiing, fishing, hiking, and hunting.
Nemo me impune lacessit ( Latin for "No one provokes me with impunity "
Letters patent (pl. letters patent) are so named from the Latin verb pateo , to lie open, exposed, accessible, [ 1 ] being called in full letterae patentes . They are a type of legal instrument in the form of an open letter issued by a monarch or government , granting an office, right, monopoly , title, or status to a person or to some entity such as a corporation . They are thus a form of open or public proclamation. The opposite of letters patent are letters close ( Latin : litterae clausae ), which are personal in nature and sealed so that only the recipient can read their contents. Letters patent can be used for the creation of corporations or government offices, or for the granting of city status or a coats of arms . A particular form of letters patent has evolved into the modern patent granting exclusive rights in an invention .
In the United Kingdom and countries formerly under that country's influence, letters patent are issued under the prerogative powers of the head of state (" royal prerogative "). They constitute a rare, if significant, form of legislation without the consent of the parliament . Letters patent may also be used to grant assent to legislation.
In the United States , the forgery of letters patent granted by the President is a crime subject to fine and/or imprisonment up to ten years ( 18 U.S.C. § 497 ). Without letters patent, a person is unable to assume an appointed office. Such an issue prompted the Marbury v. Madison suit, where William Marbury and three others petitioned the United States Supreme Court to order James Madison to deliver their letters for appointments made under the previous administration.
“A patent to land, issued by the United States under authority of law, is the highest evidence of title, something upon which its holder can rely for peace and security in his possession. It is conclusive evidence of title against the United States and all the world. ..” 2 The American Law of Mining, § 1.29 at 357. Nichols v. Rysavy, (S.D. 1985) 610 F. Supp. 1245.
"Congress has the sole power to declare the dignity and effect of titles emanating from the United States … and [Congress] [D]eclares the patent the superior and conclusive evidence of legal title." Langdon v. Sherwood, 124 U.S. 74 (1888).
The “general rule” at least is, “that while property may be regulated to a certain extent, if regulation goes too far it will be recognized as a taking.” [Pennsylvania Coal Co. v. Mahon , 260 U.S. 393, 415, 67 L. Ed. 322, 43 S. Ct. 158 (1922).]
The Court stated, “Takings jurisprudence balances the competing goals of compensating landowners on whom a significant burden of regulation falls and avoiding prohibitory costs to needed government regulation. Citing Dolan v. City of Tigard , 512 U.S. 374, 384 (1994), “TheTakings Clause assures that the government may not force 'some people alone to bear public burdens which, in all fairness and justice, should be borne by the public as a whole.'"
In the history of the United States , no Land Patent has ever lost an appellate review in the courts. In Summa Corp. v. California ex rel. State Lands Comm'n 466 US 198, the United States Supreme Court ruled that the Land Patent would always win over any other form of title. In that case, the land in question was tidewater land and California 's claim was based on California 's constitutional right to all tidewater lands. The patent stood supreme even against California 's Constitution, to wit:
[The patent] “[P]assing whatever interest the United States has in the premises and thereby settling any question of sovereign ownership….” Pueblo of Santa Ana v. Baca (CA10 NM) 844 F2d 708; Whaley v. Wotring ( Fla App D1) 225 So 2d 177; Dugas v. Powell, 228 La 748, 84 So 2d 177. [quote at 28 Am. Jur. 2D, F. 2 § 49].
With the title passes away all authority or control of the executive department over the land and over the title which it has conveyed. Moore v. Robbins, 96 U.S. 530, 533, 24 L. Ed. 848.
There is no license from the United States or the state of California to miners to enter upon private lands of individuals for the purpose or extracting the minerals in the soil. (Biddle Boggs v Merced Min. Co.) 14 Cal. 279.)The United States , like any other PRIVATE PROPRIETOR, with the exception of exemption from state taxation, having no municipal sovereignty or right of eminent domain within the limits of the state-cannot, in derogation of the rights of the local sovereign to govern the relations of the citizens of the state, and to prescribe the rules of property, and its mode of disposition, and its tenure, enter upon, or authorize an entry upon, private property, for the purpose of extracting minerals. The United States , like any other proprietor, can only exercise their rights to the mineral in private property, in subordination to such rules and regulations as the local sovereign may prescribe. Until such rules and regulations are established, the landed proprietor may successfully resist, in the courts of the state, all attempts at invasion of his property, whether by the direct action of the United States or by virtue of any pretended license under their authority. (Biddle Boggs v Merced Min. Co,,) 14 Cal. 279.)
“A valid and subsisting location of mineral lands, made and kept in accordance with the provisions of the statutes of the United States , has the effect of a grant by the United States of the right of present and exclusive possession of the lands located.”
U.S. Supreme Court, 1884
With the title passes away all authority or control of the executive department over the land and over the title which it has conveyed. It would be as reasonable to hold that any private owner who has conveyed it to another can, of his own volition, recall, cancel or annul the instrument which he has made and delivered. If fraud, mistake, error, or wrong has been done, the courts of justice present the only remedy. These courts are as open to the United States to sue for the cancellation of the deed or reconveyance of the land as to individuals, and if the government is the party injured this is the proper course”.
Moore v. Robbins, 96 U.S. 530, 533, 24 L. Ed. 848.
That whenever the question in any court, state or federal, is whether a title to land which has once been the property of the United States has passed, that question must be resolved by the laws of the United States; but that whenever, according to those laws, the title shall have passed, then that property, like all other property in the state, is subject to state legislation, so far as that legislation is consistent with the admission that the title passed and vested according to the laws of the United States”.
Wilcox v. McConnell, 13 Pet. ( U.S. ) 498, 517, 10 L. Ed. 264.
“Title by patent from the United States to a tract of ground, theretofore public, prima facie carries ownership of all beneath the surface, and possession under such patent of the surface is presumptively possession of all beneath the surface.
Lawson v. United States Min. Co. 207 U.S. 1, 8, 28 Sup. Ct. 15, 17, 52, L. Ed. 65.
Grub-stake contracts will be enforced by the courts, but only as other contracts; that is to say, it is not enough for parties to assert that they have rights, in order to secure legal protection, but they must be able to prove in each case a clear and definite contract, and that by the terms and conditions of such contract, and compliance therewith on their part, rights have become vested.
Cisna v. Mallory (C.C.) 84 Fed. 851, 854.
The common-law rule is that the lessee of real property may work already opened mines, but cannot open new ones. But the lease may expressly, or by implication from express powers, give the right to take the minerals, the instrument is a genuine lease.Oshoon v. Bayaud 123 N.Y. 298. 25 N.E. 376
On the other hand, if an attempt is made by the instrument to pass title to the minerals in place, there is really a sale of the mineral.
Plummer v. Hillside Coal & Iron Co. 104 Fed. 208, 43 C.C. A. 490
Whatever the form of the instrument of conveyance, and even though the parties speak of it in its terms as a lease, if its fair construction shows that the title to the minerals in place is to pass upon the delivery of the instrument, while the surface is retained, or vice versa, and, of course, for all time, if the fee is granted, except that the fee to the space occupied by the minerals seems to terminate when the mine is exhausted.
McConnell v. Pierce, 210 Ill. 627, 71 N.E. 622., Moore v. Indian Camp Coal Co.,493, 0 N.E. 6.
The relationship among joint venturers was eloquently described by United States Supreme Court Justice Cardozo in the seminal 1928 case of Meinhard v. Salmon - “joint adventurers, like copartners, owe to one another, while the enterprise continues, the duty of the finest loyalty. Many forms of conduct permissible in a workaday world for those acting at arm's length, are forbidden to those bound by fiduciary ties. Not honesty alone, but the punctilio of an honor the most sensitive, is then the standard of behavior. As to this there has developed a tradition that is unbending and inveterate. Uncompromising rigidity has been the attitude of courts of equity when petitioned to undermine the rule of undivided loyalty by the ‘disintegrating erosion' of particular exceptions. Only thus has the level of conduct for fiduciaries been kept at a level higher than that trodden by the crowd.”)
What kind of tree was that? "A wooden one" he said.
Science Wednesday: From Policeman to Risk Assessor to Innovator: Sustainability at EPA
Wednesday, December 29th, 2010 at 6:32 pm
On November 30, 2010 EPA Administrator Lisa Jackson announced that on the occasion of EPA's 40th anniversary the Agency was asking the National Research Council to conduct a study on how to make the concept of sustainability operational at EPA.
The Administrator's briefing was an historic event aimed at laying the groundwork for a new approach to environmental management aimed at better addressing problems of the 21st century.
Listening to the Administrator's announcement, I thought of EPA's history and how its role has evolved from policeman, to risk assessor and potentially now to environmental innovator.
After EPA was first created in 1970 it quickly became the federal government's chief watchdog against environmental pollution. In those early days the nation's major environmental challenges – largely related to poor industrial practices and inadequate occupational safety – were highly visible and often not difficult to understand. Federal legislation addressed obvious causes of pollution and water contamination , enacting specific laws to achieve cleaner land, air and water.
Complementing and moving beyond its role as a watchdog, EPA soon began to use risk assessment and risk management as an overall framework for Agency decisions. The value of risk assessment and management was given a big boost in 1983 when the National Research Council published Risk Assessment in the Federal Government: Managing the Process. The report helped advance risk assessment and management in EPA programs.
Today however, the scientific and environmental communities are recognizing that risk assessment and risk management must be complemented by an emphasis on sustainable approaches and solutions to environmental problems.
Sustainability science takes into account that no problem the Agency faces narrowly affects only air or water or land. It tells us that we need a far more integrated approach using new tools and metrics to implement EPA actions and to achieve our mission. It also underlines that we must attract a new generation of scientists and scholars who can be innovative in addressing complex problems.
Administrator Jackson is mandating each of us to address, under new conditions, the challenge that former Administrator Bill Reilly clearly articulated in 1995: “The U.S. Environmental Protection Agency is at its best when it views its role as not just custodial but as cutting-edge, providing leadership and prescribing answers to key environmental problems.”
Sustainability science can help us and the Agency be at our best.
About the Author: Dr. Alan D. Hecht is Director for Sustainable Development in EPA's Office of Research and Development.
Editor's Note: The opinions expressed in Greenversations are those of the author. They do not reflect EPA policy, endorsement, or action, and EPA does not verify the accuracy or science of the contents of the blog.
New wild lands policy
Secretary of the Interior Ken Salazar issued a secretarial order Dec. 23 directing the Bureau of Land Management to designate areas with wilderness characteristics under its jurisdiction as “wild lands” and to manage them to protect their wilderness values.
“Americans love the wild places where they hunt, fish, hike and get away from it all, and they expect these lands to be protected wisely on their behalf,” Salazar said in a statement.
BLM Director Bob Abbey said the new “policy affirms the BLM's authorities under the law — and our responsibility to the American people — to protect the wilderness characteristics of the lands we oversee as part of our multiple use mission.”
Interior said input from the public and from local communities would be accepted on the designation through BLM's existing land management planning process.
BLM has not had a comprehensive national wilderness policy since 2003 when wilderness management guidance in BLM's handbook was revoked as part of what Interior described as “a controversial out-of-court settlement between then-Secretary of the Interior Gale Norton, the State of Utah, and other parties.”
Concerns from congressional delegation
Alaska's congressman, Republican Don Young, expressed outrage at Interior's actions in a Dec. 23 statement, calling it “yet another example of overreaching by the Federal Government and of the Administration detouring around Congress to get what they want.”He called the action “disgraceful,” and said that as a member of the incoming Republican majority in the House, and the senior Republican on the Committee on Natural Resources in the present Congress, he would do everything in his power “to stop this overreaching by the Administration.”
“The new designation raises concerns about whether the Interior Department is trying to do an end run around Congress, which has sole authority to designate new wilderness areas,” said Robert Dillon, a spokesman for U.S. Sen. Lisa Murkowski, R-Alaska. “Further wilderness in Alaska without congressional approval is prohibited under the terms of ANILCA and Sen. Murkowski expects the federal government to live up to its end of that agreement.”
In background on the Alaska National Interest Lands Conservation Act, Dillon said in an e-mail to Petroleum News that the promise written into the law is that there would be “no more” presidential wilderness designations in Alaska of more than 5,000 acres, including use of the Antiquities Act, without express approval of Congress. ANILCA even prohibits study of lands for possible wilderness designation unless authorized by Congress.
State already concerned
Alaska Gov. Sean Parnell said Dec. 29: “The ‘wild land' designation for multiple-use Bureau of Land Management land is an undisguised end-run on ANILCA's ‘no more' provisions, an effort to create a de facto wilderness without Congressional oversight. It ignores ANILCA's hard-fought provisions that protect both access for traditional activities and resources that are the bedrock of Alaska's economy. We intend to bring our concerns to the Interior Department and the Congress and will also look to see what legal remedies may be available.”Parnell had written to Salazar in November, objecting to “how certain agencies within the Department of the Interior are interpreting the Alaska National Interest Lands Conservation Act.”
He told Salazar that ANILCA, signed into law by President Carter in 1980, achieved a balance of interests, with “more than 100 million acres of federal land in Alaska” designated as new or expanded conservation system units, while also seeking to protect the state's “fledgling economy and infrastructure” and “lending finality to the issue of the State's conservation designations.”
The governor said BLM “appears to be weighing whether to add wilderness reviews” to its resource management plans in Alaska, and noted that since the passage of ANILCA, nearly all secretaries of the Interior have asked for concurrence from Alaska's governor before conducting wilderness reviews on BLM lands in Alaska.”lands in Alaska.”
NPR-A
BLM Director Bob Abbey told a Resource Development Council for Alaska audience in early December that lands within the National Petroleum Reserve-Alaska “will be assessed (and) … lands with wilderness character will be identified,” as part of the new planning effort under way for NPR-A.When Abbey was asked at his RCA talk why, with the ANILCA compromise in place, BLM was thinking of designating lands in NPR-A as wilderness, he said he was “well aware of differences of opinion relative to what the law requires.”
Information provided by Interior related to the new wild lands policy said there has never been a statewide wilderness inventory in Alaska. The department said ANILCA “specifically recognizes the Secretary may ‘identify areas in Alaska which he determines are suitable as wilderness,'” and may make recommendations to Congress for designation of those lands as wilderness.
“Mindful of the balance struck in ANILCA, the Order permits Wild Lands to be designated in Alaska only through the BLM's comprehensive land use planning processes, which proves for robust public comment and involvement,” Interior said.
BLM “must inventory the lands in NPR-A and may designate Wild Lands in NPR-A as part of its integrated activity planning for the area,” the department said, but also said it “will continue to conduct an expeditious program of competitive oil and gas leasing in the Reserve.”
Interior said the new order provides a mechanism for the secretary of Interior “to accept the invitation extended by Congress in section 1320 of ANILCA to ‘identify areas in Alaska which he determines are suitable as wilderness and … from time to time, make recommendations to the Congress for inclusion of any such areas in the National Wilderness Preservation System, pursuant to the provisions of the Wilderness Act.'”
Designation can be modified
Interior said a wild lands designation can be made and later modified through a public administrative process, distinguishing wild lands from wilderness areas which are designated by Congress and can only be modified by legislation, and wilderness study areas, which BLM typically must manage to protect wilderness characteristics until Congress determines whether to permanently protect them as wilderness areas or modify their management.The secretarial order states that BLM will maintain a current inventory of land under its jurisdiction and identify lands that are not designated wilderness or wilderness study areas but have wilderness characteristics.
That information will be shared with the public and integrated into BLM's land management decisions.
In the order BLM is directed to develop policy guidance within 60 days of the order, defining and clarifying how public lands with wilderness characteristics will be inventoried, described and managed.
BLM is directed to maintain a national wilderness database accessible to the public and updated annually, describing all public lands identified by BLM has having wilderness characteristics and how those lands are being managed.
And BLM is to ensure that project-level decisions and land-use planning efforts take wilderness characteristics into consideration and “include appropriate measures to protect the area's wilderness characteristics” where those lands have been identified as wild lands.
Where there are lands not previously inventoried as wild lands, but where “BLM determines that the land appears to have wilderness characteristics … BLM shall preserve its discretion to protect wildness characteristics” in land-use planning, unless BLM determines, based on a National Environmental Protection Act analysis, that a project which impairs wilderness characteristics is “appropriate and consistent with requirements of applicable law and other resource considerations consistent with this Order or necessary for the exercise of valid existing rights.”
New bioactive nanomaterial enables humans to grow new cartilage
20:08 February 14, 2010
Sport is tough on the body, and one of the major health risks from being active is permanent damage to cartilage around the joints. Humans are unable to regenerate cartilage once they are adults and often have to live with painful joints or osteoarthritis, but researchers at Northwestern University are the first to design a bio-active nanomaterial that promotes the growth of new cartilage in vivo and without the use of expensive growth factors. Good new sports fans...
The economic and social impact from damaged cartilage is unknown, but the economic impact of osteoarthritis is estimated to be almost $65 billion in the United States alone. Type II collagen is the major protein in articular cartilage, and comprises the smooth, white connective tissue that covers the ends of bones where they come together to form joints. Until now surgery to regenerate cartilage has involved a procedure called 'microfracture' but this tends to produce a cartilage having predominantly Type I collagen which is more like scar tissue.
In this new minimally-invasive procedure, a bio-active material of nanoscopic fibers stimulates stem cells present in bone marrow to produce cartilage containing type II collagen and repair the damaged joint. The gel is injected to the damaged area of joint where it forms a cohesive solid mimicking what cells normally see and effecting a molecular bind which is essential to the repair and regeneration.
In early trials on animals with cartilage defects, the animals were treated with microfracture, where tiny holes made in the bone beneath the damaged area allow a new blood supply to stimulate new cartilage growth. Implants trialled microfracture alone; microfracture and the nanofiber gel with growth factor added; and microfracture and the nanofiber gel without growth factor added.
Researchers found their technique produced much better results than the microfracture procedure alone, and significantly that addition of expensive growth factor was not required to get the best results. Instead growth factor present in the body appeared to be sufficient to regenerate cartilage because of the molecular design of the gel material. The gel matrix only needs to be present for a month, after which it begins to biodegrade into nutrients and is replaced by natural cartilage.
For the thousands of amateur athletics, professional sportspeople, and elderly people who suffer with joint pain in knees, elbows and shoulders this could be a boon. Used in conjunction with current minimally invasive surgical techniques it could accelerate rehabilitation, and delay or even halt the progression of cartilage lesions into painful degeneration and arthritis. The nanomaterial is being evaluated in a larger preclinical study after which it is hoped the procedure will move to clinical trials.
The Paper "Supramolecular Design of Self-assembling Nanofibers for Cartilage Regeneration" was published by the Proceedings of the National Academy of Sciences (PNAS).
Top Food Safety Stories of 2010: No. 2
by Dan Flynn | Dec 31, 2010 The number 2 food safety story of the year concerned USDA's regulatory bottleneck:Abe Lincoln saw the United States Department of Agriculture (USDA) created with his signature in 1862 as "the people's department" with no need for its executive officer to be in the President's cabinet.
The new department would operate like the Agricultural Division of the Patent Office that preceded it, without a role in politics or policy.
In the words of the law creating it, USDA would "acquire and to diffuse among the people of the United States useful information on subjects connected with agriculture in the most general and comprehensive sense of that word, and to procure, propagate, and distribute among the people new and valuable seeds and plants."
Lincoln's USDA--which did not do food safety--lasted about 27 years before the USDA Commissioner was elevated to be the Secretary of Agriculture and became a cabinet member. Today,121 years later, the 30th Secretary of Agriculture is Tom Vilsack and his USDA does just about everything.
Vilsack's duties now extend so far beyond handing out "useful information" and "new and valuable seeds and plants" that it is difficult for most people to get their heads around everything he oversees. America is not the agrarian state that it was when Lincoln created USDA, but that has not stopped Congress from piling ever more responsibilities onto the Secretary of Agriculture.
Early on, that included the Bureau of Animal Industry, an attempt to prevent diseased animals from getting into the food supply. It was the predecessor to the Food Safety and Inspection Service (FSIS). Foreign restrictions on U.S. food exports later led to the 1890 Food Inspection Act.
Then Upton Sinclair's 1905 book, "The Jungle," resulted in the Food and Drug Act and the Meat Inspection Act a year later. USDA's Bureau of Chemistry evolved into the U.S. Food and Drug Administration (FDA).
More was added to USDA during the New Deal and Great Society years, all of which makes the Ag Secretary one of the federal government's major policy makers. And what's on Vilsack's agenda is the second biggest food safety story of 2010. Here are some examples:
- The Child Nutrition Act, which gives the Secretary of Agriculture the power to set nutritional standards for the nation's school children. Vilsack has until late 2011 to make that decision.
- The 2008 Farm Bill gives the Secretary of Agriculture, through FSIS, the power to regulate and inspect catfish just as it now does beef, pork, and poultry. Vilsack has not yet made that happen.
- The Secretary of Agriculture, through FSIS, has the power to say what is an adulterant in meat. FSIS was petitioned more than a year ago to name six non-O157:H7 toxic strains of E. coli as adulterants, but has not yet acted.
- Proposed changes to the way USDA regulates beef and hog markets under the Grain Inspection, Packers and Stockyard Administration (GIPSA) have already ignited a war of sorts in cattle and hog country. Vilsack will have to decide in 2011 just what changes are going to be imposed, and there are ramifications for both food safety and the humane treatment of animals.
- Before Christmas, USDA did issue a final Environmental Impact Statement (EIS) for genetically modified (GM) alfalfa, but the popular Roundup Ready sugar beats might be plowed under all because the Secretary has not gotten a process down that can withstand a court challenge. Vilsack has to decide if he wants to run the GM process or let a federal judge do it.
Congress Passes Stormwater Funding Bill
Posted on December 30, 2010 | Filed Under: Clean Water , Greening Water Infrastructure , Small Streams & Wetlands
Katherine Baer
Senior Director, Clean Water ProgramJust when you thought it was all over… Right before Christmas, Congress passed legislation (S.3481) amending the Clean Water Act and clarifying that the federal government must pay stormwater utility fees to local governments . This may sound kind of mundane, but local stormwater utility fees are an increasingly important way to fund local effort to reduce polluted stormwater runoff.
Here's how it works: a city will set a fee based on a parcel's impervious surface (e.g. rooftops, parking lots, etc.) that generate polluted stormwater runoff and use that money to fund stormwater improvement projects for cleaner water. Stormwater utilities exist throughout the country in places like Minneapolis , Orlando , Bend, Oregon and Philadelphia just to name a few. Most of these fees can be reduced by decreasing the pollution impact of a site by treating and cleaning water on-site, often using green infrastructure techniques. In Milwaukee , for instance, American Rivers staffer Sean Foltz is working to promote the green infrastructure credit as part of the City's stormwater utility fee – a ten acre business parcel stands to save over $15,000 a year by installing green infrastructure practices such as green roofs. Stormwater utility fees also provide an important and steady stream of funding that can allow communities to qualify for additional federal funding – in Philadelphia, the stormwater funds helped secure the city a $30 million loan for green infrastructure from federal clean water infrastructure funds because there was a payback mechanism associated with the City's Greenworks plan.
Unfortunately, the federal government, in Washington DC and around the country, has claimed that it did not have to pay these fees to local governments based on claims of sovereign immunity. In DC this amounts to millions of dollars, but also affects communities across the country : Seattle is owed over a million dollars by several federal agencies, Aurora Colorado is owed almost $150,000 from an Air Force Base, and a metro Atlanta County is due $160,000.
The new legislation will remedy this problem and ensure that the federal government pays it's fair share for the pollution it creates. A good start for 2011 and while not binding on similar disputes at the state and local level , hopefully this new policy will make clear that a small fee on a pollution source can go a long way for clean water.
For more about stormwater utilities click here .
California Region
In California we are spearheading some of the most innovative water supply solutions seen anywhere in the country. Whether it is restoring meadows in the Sierra, that provides water for 65% of Californians, removing barriers to salmon migration, or improving dam operations on the Yuba and Bear rivers, our staff is proving that it is possible to get communities the water they need while keeping our rivers healthy. We are also leading efforts to remove some of the state's outdated dams. Our skillful negotiations recently resulted in an agreement to remove four dams on the Klamath River – the biggest dam removal and river restoration project the world has ever seen. With global warming shrinking mountain snowpack and bringing more intense floods and droughts, our work to protect California's rivers and fresh water is more important than ever.
Protecting Rivers
2009 America's Most Endangered Rivers: Sacramento-San Joaquin River System, CA
2010 America's Most Endangered Rivers: Sacramento-San Joaquin River Delta
America's Most Endagered Rivers: Progress and Success
America's Most Endangered Rivers: 2009 Edition
America's Most Endangered Rivers™ Reports: 1986-1995
America's Most Endangered Rivers™: 2010 Edition
Restoring Rivers
Horse Creek Dam, Horse Creek, CA
58 Dams Slated For Removal Across the Country in 2009
Water Supply
Agricultural Efficiency in the San Gregorio Watershed
Connecting Water Conservation Efforts and Instream Flow Protections in the Colorado River Basin
Deer Creek Floodplain Restoration
About the Office
California Offices
Nevada City Office
432 Broad Street
Nevada City, CA 95959
Phone: 530-478-0206
Fax: 530-478-5849Berkeley Office
2150 Allston Way, Suite 320
Berkeley, CA 94704
Phone: 510-807-8010UNDERSTANDING JURISDICTION by Anonymous
Sat, 12/25/2010 - 22:38 — Arthur Cristian
Note: Here is a great article on origins of OATHS and JURISDICTION. This is fifteen pages of history that you most likely have never read before. Do you claim to be a free man. Here is a reality check to see if you truly are free. Most who claim to be free, are suffering from an illusion. Sir David Andrew.
TITLE 28 > PART V > CHAPTER 115 > § 1746 Prev | Next
§ 1746. Unsworn declarations under penalty of perjury
(1) If executed without the United States: “I declare (or certify, verify, or state) under penalty of perjury under the laws of the United States of America that the foregoing is true and correct. Executed on (date). (Signature)”. (2) If executed within the United States, its territories, possessions, or commonwealths: “I declare (or certify, verify, or state) under penalty of perjury that the foregoing is true and correct. Executed on (date). (Signature)”.
===============================================================================================================
UNDERSTANDING JURISDICTION
By AnonymousIn all of history there has been but one successful protest against an income tax. It is little understood in that light, primarily because the remnants of protest groups still exist, but no longer wish to appear to be "anti-government." They don't talk much about these roots. Few even know them. We need to go back in time about 400 years to find this success. It succeeded only because the term "jurisdiction" was still well understood at that time as meaning "oath spoken." "Juris," in the original Latin meaning, is "oath." "Diction" as everyone knows, means "spoken." The protest obviously didn't happen here. It occurred in England. Given that the origins of our law are traced there, most of the relevant facts in this matter are still applicable in this nation. Here's what happened.
The Bible had just recently been put into print. To that time, only the churches and nobility owned copies, due to given to the extremely high cost of paper. Contrary to what you've been taught, it was not the invention of movable type that led to printing this and other books. That concept had been around for a very long time. It just had no application. Printing wastes some paper. Until paper prices fell, it was cheaper to write books by hand than to print them with movable type. The handwritten versions were outrageously costly, procurable only by those with extreme wealth: churches, crowns and the nobility. The wealth of the nobility was attributable to feudalism. "Feud" is Old English for "oath." The nobility held the land under the crown. But unimproved land, itself, save to hunter/gatherers, is rather useless. Land is useful to farming. So that's how the nobility made their wealth. No, they didn't push a plow. They had servants to do it. The nobility wouldn't sell their land, nor would they lease it. They rented it. Ever paid rent without a lease? Then you know that if the landlord raised the rent, you had no legal recourse. You could move out or pay. But what if you couldn't have moved out? Then you'd have a feel for what feudalism was all about.
A tenant wasn't a freeman. He was a servant to the (land)lord, the noble. In order to have access to the land to farm it, the noble required that the tenant kneel before him, hat in hand, swear an oath of fealty and allegiance and kiss his ring (extending that oath in that last act to the heirs of his estate). That oath established a servitude. The tenant then put his plow to the fields. The rent was a variable. In good growing years it was very high, in bad years it fell. The tenant was a subsistence farmer, keeping only enough of the produce of his labors to just sustain him and his family. Rent was actually an "income tax." The nobleman could have demanded 100% of the productivity of his servant except . . . under the common law, a servant was akin to livestock. He had to be fed. Not well fed, just fed, same as a horse or cow. And, like a horse or cow, one usually finds it to his benefit to keep it fed, that so that the critter is productive. Thus, the tenant was allowed to keep some of his own productivity. Liken it to a "personal and dependent deductions."
The freemen of the realm, primarily the tradesmen, were unsworn and unaliened. They knew it. They taught their sons the trade so they'd also be free when grown. Occasionally they took on an apprentice under a sworn contract of indenture from his father. His parents made a few coins. But the kid was the biggest beneficiary. He'd learn a trade. He'd never need to become a tenant farmer. He'd keep what he earned. He was only apprenticed for a term of years, most typically about seven. The tradesmen didn't need adolescents; they needed someone strong enough to pull his own weight. They did not take on anyone under 13. By age 21 he'd have learned enough to practice the craft. That's when the contract expired. He was then called a "journeyman." Had he made a journey? No. But, if you pronounce that word, it is "Jur-nee-man." He was a "man," formerly ("nee"), bound by oath ("jur)." He'd then go to work for a "master" (craftsman). The pay was established, but he could ask for more if he felt he was worth more. And he was free to quit. Pretty normal, eh? Yes, in this society that's quite the norm. But 400 some years ago these men were the exceptions, not the rule. At some point, if the journeyman was good at the trade, he'd be recognized by the market as a "master" (craftsman) and people would be begging him to take their children as apprentices, so they might learn from him, become journeymen, and keep what they earned when manumitted at age 21! The oath of the tenant ran for life. The oath of the apprentice's father ran only for a term of years. Still, oaths were important on both sides. In fact, the tradesmen at one point established guilds (means "gold") as a protection against the potential of the government attempting to bind them into servitude by compelled oaths.
When an apprentice became a journeyman, he was allowed a membership in the guild only by swearing a secret oath to the guild. He literally swore to "serve gold." Only gold. He swore he'd only work for pay! Once so sworn, any other oath of servitude would be a perjury of that oath. He bound himself for life to never be a servant, save to the very benevolent master: gold! (Incidentally, the Order of Free and Accepted Masons is a remnant of one of these guilds. Their oath is a secret. They'd love to have you think that the "G" in the middle of their logo stands for "God." The obvious truth is that it stands for "GOLD.")
Then the Bible came to print. The market for this tome wasn't the wealthy. They already had a handwritten copy. Nor was it the tenants. They were far too poor to make this purchase. The market was the tradesmen - and the book was still so costly that it took the combined life savings of siblings to buy a family Bible. The other reason that the tradesmen were the market was that they'd also been taught how to read as part of their apprenticeship. As contractors they had to know how to do that! Other than the families of the super-rich (and the priests) nobody else knew how to read.
These men were blown away when they read Jesus' command against swearing oaths (Matt 5: 33-37). This was news to them. For well over a millennial, they'd been trusting that the church - originally just the Church of Rome, but now also the Church of England - had been telling them everything they needed to know in that book. Then they found out that Jesus said, "Swear no oaths." Talk about an eye-opener.
Imagine seeing a conspiracy revealed that went back over 1000 years. Without oaths there'd have been no tenants, laboring for the nobility, and receiving mere subsistence in return. The whole society was premised on oaths; the whole society CLAIMED it was Christian, yet, it violated a very simple command of Christ! And the tradesmen had done it, too, by demanding sworn contracts of indenture for apprentices and giving their own oaths to the guilds. They had no way of knowing that was prohibited by Jesus! They were angry. "Livid" might be a better term. The governments had seen this coming. What could they do? Ban the book? The printing would have simply moved underground and the millennial long conspiracy would be further evidenced in that banning. They came up with a better scheme. You call it the "Reformation."
In an unprecedented display of unanimity, the governments of Europe adopted a treaty. This treaty would allow anyone the State-right of founding a church. It was considered a State right, there and then. The church would be granted a charter. It only had to do one very simple thing to obtain that charter. It had to assent to the terms of the treaty.
Buried in those provisions, most of which were totally innocuous, was a statement that the church would never oppose the swearing of lawful oaths. Jesus said, "None." The churches all said (and still say), "None, except . . ." Who do you think was (is) right?
The tradesmen got even angrier! They had already left the Church of England. But with every new "reformed" church still opposing the clear words of Christ, there was no church for them to join - or found. They exercised the right of assembly to discuss the Bible. Some of them preached it on the street corners, using their right of freedom of speech. But they couldn't establish a church, which followed Jesus' words, for that would have required assent to that treaty which opposed what Jesus had commanded. To show their absolute displeasure with those who'd kept this secret for so long, they refused to give anyone in church or state any respect. It was the custom to doff one's hat when he encountered a priest or official. They started wearing big, ugly black hats, just so that the most myopic of these claimed "superiors" wouldn't miss the fact that the hat stayed atop their head. Back then the term "you" was formal English, reserved for use when speaking to a superior. "Thee" was the familiar pronoun, used among family and friends. So they called these officials only by the familiar pronoun "thee" or by their Christian names, "George, Peter, Robert, etc." We call these folk "Quakers." That was a nickname given to them by a judge. One of them had told the judge that he'd better "Quake before the Lord, God almighty." The judge, in a display of irreverent disrespect replied, "Thee are the quaker here." They found that pretty funny, it being such a total misnomer (as you shall soon see), and the nickname stuck. With the huge membership losses from the Anglican Church - especially from men who'd been the more charitable to it in the past - the church was technically bankrupt. It wasn't just the losses from the Quakers. Other people were leaving to join the new "Reformed Churches." Elsewhere in Europe, the Roman Church had amassed sufficient assets to weather this storm. The far newer Anglican Church had not.
But the Anglican Church, as an agency of the State, can't go bankrupt. It becomes the duty of the State to support it in hard times. Parliament did so. It enacted a tax to that end. A nice religious tax, and by current standards a very low tax, a tithe (10%). But it made a deadly mistake in that. The Quakers, primarily as tradesmen, recognized this income tax as a tax "without jurisdiction,' at least so far as they went. As men unsworn and unaliened, they pointed out that they didn't have to pay it, nor provide a return. Absent their oaths establishing this servitude, there was "no jurisdiction." And they were right. Despite laws making it a crime to willfully refuse to make a return and pay this tax, NONE were charged or arrested.
That caused the rest of the society to take notice. Other folk who'd thought the Quakers were "extremists" suddenly began to listen to them. As always, money talks. These guys were keeping all they earned, while the rest of the un-sworn society, thinking this tax applied to them, well; they were out 10%. The Quaker movement expanded significantly, that proof once made in the marketplace. Membership in the Anglican Church fell even further, as did charity to it. The taxes weren't enough to offset these further losses. The tithe (income) tax was actually counterproductive to the goal of supporting the church. The members of the government and the churchmen were scared silly. If this movement continued to expand at the current rate, no one in the next generation would swear an oath. Who'd then farm the lands of the nobility? Oh, surely someone would, but not as a servant working for subsistence. The land would need to be leased under a contract, with the payment for that use established in the market, not on the unilateral whim of the nobleman. The wealth of the nobility, their incomes, was about to be greatly diminished. And the Church of England, what assets it possessed, would need to be sold-off, with what remained of that church greatly reduced in power and wealth. But far worse was the diminishment of the respect demanded by the priests and officials. They'd always held a position of superiority in the society. What would they do when all of society treated them only as equals?
They began to use the term "anarchy." But England was a monarchy, not an anarchy. And that was the ultimate solution to the problem, or so those in government thought. There's an aspect of a monarchy that Americans find somewhat incomprehensible, or at least we did two centuries ago. A crown has divine right, or at least it so claims. An expression of the divine right of a crown is the power to rule by demand. A crown can issue commands. The king says, "jump." Everyone jumps.
Why do they jump? Simple. It's a crime to NOT jump. To "willfully fail (hey, there's a couple of familiar terms) to obey a crown command" is considered to be a treason, high treason. The British crown issued a Crown Command to end the tax objection movement.
Did the crown order that everyone shall pay the income tax? No, that wasn't possible. There really was "no jurisdiction." And that would have done nothing to cure the lack of respect. The crown went one better. It ordered that every man shall swear an oath of allegiance to the crown! Damned Christian thing to do, eh? Literally!
A small handful of the tax objectors obeyed. Most refused. It was a simple matter of black and white. Jesus said "swear not at all." They opted to obey Him over the crown. That quickly brought them into court, facing the charge of high treason. An official would take the witness stand, swearing that he had no record of the defendant's oath of allegiance. Then the defendant was called to testify, there being no right to refuse to witness against one's self. He refused to accept the administered oath. That refusal on the record, the court instantly judged him guilty. Took all of 10 minutes. That expedience was essential, for there were another couple hundred defendants waiting to be tried that day for their own treasons against the crown. In short order the jails reached their capacity, plus. But they weren't filled as you'd envision them. The men who'd refused the oaths weren't there. Their children were. There was a "Stand-in" law allowing for that. There was no social welfare system. The wife and children of a married man in prison existed on the charity of church and neighbors, or they ceased to exist, starving to death. It was typical for a man convicted of a petty crime to have one of his kid's stand in for him for 30 or 90 days. That way he could continue to earn a living, keeping bread on the table, without the family having to rely on charity. However, a man convicted of more heinous crimes would usually find it impossible to convince his wife to allow his children to serve his time. The family would prefer to exist on charity rather than see him back in society. But in this case the family had no option. The family was churchless. The neighbors were all in the same situation. Charity was non-existent for them. The family was destined to quick starvation unless one of the children stood- in for the breadwinner. Unfortunately, the rational choice of which child should serve the time was predicated on which child was the least productive to the family earnings.
That meant nearly the youngest, usually a daughter. Thus, the prisons of England filled with adolescent females, serving the life sentences for their dads. Those lives would be short. There was no heat in the jails. They were rife with tuberculosis and other deadly diseases. A strong man might last several years. A small girl measured her remaining time on earth in months. It was Christian holocaust, a true sacrifice of the unblemished lambs. (And, we must note, completely ignored in virtually every history text covering this era, lest the crown, government and church be duly embarrassed.) Despite the high mortality rate the jails still overflowed. There was little fear that the daughters would be raped or die at the brutality of other prisoners. The other prisoners, the real felons, had all been released to make room. Early release was premised on the severity of the crime. High treason was the highest crime. The murderers, thieves, arsonists, rapists, etc., had all been set free. That had a very profound effect on commerce. It stopped. There were highwaymen afoot on every road. Thugs and muggers ruled the city streets. The sworn subjects of the crown sat behind bolted doors, in cold, dark homes, wondering how they'd exist when the food and water ran out. They finally dared to venture out to attend meetings to address the situation. At those meetings they discussed methods to overthrow the crown to which they were sworn! Call that perjury. Call that sedition. Call it by any name, they were going to put their words into actions, and soon, or die from starvation or the blade of a thug. Here we should note that chaos (and nearly anarchy: "no crown") came to be, not as the result of the refusal to swear oaths, but as the direct result of the governmental demand that people swear them! The followers of Jesus' words didn't bring that chaos, those who ignored that command of Christ brought it. The crown soon saw the revolutionary handwriting on the wall and ordered the release of the children and the recapture of the real felons, before the government was removed from office under force of arms. The courts came up with the odd concept of an "affirmation in lieu of oath." The Quakers accepted that as a victory. Given what they'd been through, that was understandable. However, Jesus also prohibited affirmations, calling the practice an oath "by thy head." Funny that He could foresee the legal concept of an affirmation 1600 years before it came to be. Quite a prophecy!
When the colonies opened to migration, the Quakers fled Europe in droves, trying to put as much distance as they could between themselves and crowns. They had a very rational fear of a repeat of the situation. That put a lot of them here, enough that they had a very strong influence on politics. They could have blocked the ratification of the Constitution had they opposed it. Some of their demands were incorporated into it, as were some of their concessions, in balance to those demands. Their most obvious influence found in the Constitution is the definition of treason, the only crime defined in that document. Treason here is half of what can be committed under a crown. In the United States treason may only arise out of an (overt) ACTION. A refusal to perform an action at the command of the government is not a treason, hence, NOT A CRIME. You can find that restated in the Bill of Rights, where the territorial jurisdiction of the courts to try a criminal act is limited to the place wherein the crime shall have been COMMITTED. A refusal or failure is not an act "committed" - it's the opposite, an act "omitted." In this nation "doing nothing" can't be criminal, even when someone claims the power to command you do something. That concept in place, the new government would have lasted about three years. You see, if it were not a crime to fail to do something, then the officers of that government would have done NOTHING - save to draw their pay. That truth forced the Quakers to a concession.
Anyone holding a government job would need be sworn (or affirmed) to support the Constitution. That Constitution enabled the Congress to enact laws necessary and proper to control the powers vested in these people. Those laws would establish their duties. Should such an official "fail" to perform his lawful duties, he'd evidence in that omission that his oath was false. To swear a false oath is an ACTION. Thus, the punishments for failures would exist under the concept of perjury, not treason. But that was only regarding persons under oath of office, who were in office only by their oaths. And that's still the situation. It's just that the government has very cleverly obscured that fact so that the average man will pay it a rent, a tax on income. As you probably know, the first use of income tax here came well in advance of the 16th amendment. That tax was NEARLY abolished by a late 19th century Supreme Court decision. The problem was that the tax wasn't apportioned, and couldn't be apportioned, that because of the fact that it rested on the income of each person earning it, rather than an up-front total, divided and meted out to the several States according to the census. But the income tax wasn't absolutely abolished. The court listed a solitary exception. The incomes of federal officers, derived as a benefit of office, could be so taxed. You could call that a "kick back" or even a "return." Essentially, the court said that what Congress gives, it can demand back. As that wouldn't be income derived within a State, the rule of apportionment didn't apply. Make sense?
Now, no court can just make up rulings. The function of a court is to answer the questions posed to it. And in order to pose a question, a person needs standing." The petitioner has to show that an action has occurred which affects him, hence, giving him that standing. For the Supreme Court to address the question of the income of officers demonstrates that the petitioner was such. Otherwise, the question couldn't have come up.
Congress was taxing his benefits of office. But Congress was ALSO taxing his outside income, that from sources within a State. Could have been interest, dividends, rent, royalties, and even alimony. If he had a side job, it might have even been commissions or salary. Those forms of income could not be taxed. However, Congress could tax his income from the benefits he derived by being an officer.
That Court decision was the end of all income taxation. The reason is pretty obvious. Rather than tax the benefits derived out of office, it's far easier to just reduce the benefits up front! Saves time. Saves paper. The money stays in Treasury rather than going out, then coming back as much as 15 or 16 months later. So, even though the benefits of office could have been taxed, under that Court ruling, that tax was dropped by Congress. There are two ways to overcome a Supreme Court ruling. The first is to have the court reverse itself. That's a very strange concept at law. Actually, it's impossibility at law. The only way a court can change a prior ruling is if the statutes or the Constitution change, that changing the premises on which its prior conclusion at law was derived. Because it was a Supreme Court ruling nearly abolishing the income tax, the second method, an Amendment to the Constitution, was used to overcome the prior decision. That was the 16th Amendment.
The 16th allows for Congress to tax incomes from whatever source derived, without regard to apportionment. Whose incomes? Hey, it doesn't say (nor do the statues enacted under it). The Supreme Court has stated that this Amendment granted Congress "no new powers." That's absolutely true. Congress always had the power to tax incomes, but only the incomes of officers and only their incomes derived out of a benefit of office. All the 16th did was extend that EXISTING POWER to tax officers' incomes (as benefits of office) to their incomes from other sources (from whatever source derived). The 16th Amendment and the statutes enacted thereunder don't have to say whose incomes are subject to this tax. The Supreme Court had already said that: officers. That's logical. If it could be a crime for a freeman to "willfully fail" to file or pay this tax, that crime could only exist as a treason by monarchical definition. In this nation a crime of failure may only exist under the broad category of a perjury. Period, no exception.
Thus, the trick employed by the government is to get you to claim that you are an officer of that government. Yeah, you're saying, "Man, I'd never be so foolish as to claim that." I'll betcha $100 I can prove that you did it and that you'll be forced to agree. Did you ever sign a tax form, a W-4, a 1040? Then you did it.
Look at the fine print at the bottom of the tax forms you once signed. You declared that it was "true" that you were "under penalties of perjury." Are you? Were you? Perjury is a felony. To commit a perjury you have to FIRST be under oath (or affirmation). You know that. It's common knowledge. So, to be punished for a perjury you'd need to be under oath, right? Right. There's no other way, unless you pretend to be under oath. To pretend to be under oath is a perjury automatically. There would be no oath. Hence it's a FALSE oath. Perjury rests on making a false oath. So, to claim to be "under penalties of perjury" is to claim that you're under oath. That claim could be true, could be false. But if false, and you knowingly and willingly made that false claim, then you committed a perjury just by making that claim.
You've read the Constitution. How many times can you be tried and penalized for a single criminal act? Once? Did I hear you right? Did you say once; only once? Good for you. You know that you can't even be placed in jeopardy of penalty (trial) a second time.
The term "penalties" is plural. More than one. Oops. Didn't you just state that you could only be tried once, penalized once, for a single criminal action? Sure you did. And that would almost always be true. There's a solitary exception. A federal official or employee may be twice tried, twice penalized. The second penalty, resulting out of a conviction of impeachment, is the loss of the benefits of office, for life. Federal officials are under oath, an oath of office. That's why you call them civil servants. That oath establishes jurisdiction (oath spoken), allowing them to be penalized, twice, for a perjury (especially for a perjury of official oath). You have been tricked into signing tax forms under the perjury clause. You aren't under oath enabling the commission of perjury. You can't be twice penalized for a single criminal act, even for a perjury. Still, because you trusted that the government wouldn't try to deceive you, you signed an income tax form, pretending that there was jurisdiction (oath spoken) where there was none.
Once you sign the first form, the government will forever believe that you are a civil servant. Stop signing those forms while you continue to have income and you'll be charged with "willful failure to file," a crime of doing nothing when commanded to do something!
Initially, the income tax forms were required to be SWORN (or affirmed) before a notary. A criminal by the name of Sullivan brought that matter all the way to the Supreme Court. He argued that if he listed his income from criminal activities, that information would later be used against him on a criminal charge. If he didn't list it, then swore that the form was "true, correct and complete," he could be charged and convicted of a perjury. He was damned if he did, damned if he didn't. The Supreme Court could only agree. It ruled that a person could refuse to provide any information on that form, taking individual exception to each line, and stating in that space that he refused to provide testimony against himself. That should have been the end of the income tax. In a few years everyone would have been refusing to provide answers on the "gross" and "net income" lines, forcing NO answer on the "tax due" line, as well. Of course, that decision was premised on the use of the notarized oath, causing the answers to have the quality of "testimony."
Congress then INSTANTLY ordered the forms be changed. In place of the notarized oath, the forms would contain a statement that they were made and signed "Under penalties of perjury." The prior ruling of the Supreme Court was made obsolete. Congress had changed the premise on which it had reached its conclusion. The verity of the information on the form no longer rested on a notarized oath. It rested on the taxpayer's oath of office. And, as many a tax protestor in the 1970s and early 1980s quickly discovered, the Supreme Court ruling for Sullivan had no current relevance.
There has never been a criminal trial in any matter under federal income taxation without a SIGNED tax form in evidence before the court. The court takes notice of the signature below the perjury clause and assumes the standing of the defendant is that of a federal official, a person under oath of office who may be twice penalized for a single criminal act of perjury (to his official oath). The court has jurisdiction to try such a person for a "failure." That jurisdiction arises under the concept of perjury, not treason.
However, the court is in an odd position here. If the defendant should take the witness stand, under oath or affirmation to tell the truth, and then truthfully state that he is not under oath of office and is not a federal officer or employee, that statement would contradict the signed statement on the tax form, already in evidence and made under claim of oath. That contradiction would give rise to a technical perjury. Under federal statutes, courtroom perjury is committed when a person willfully makes two statements, both under oath, which contradict one another.
The perjury clause claims the witness to be a federal person. If he truthfully says the contrary from the witness stand, the judge is then duty bound to charge him with the commission of a perjury! At his ensuing perjury trial, the two contradictory statements "(I'm) under penalties of perjury" and "I'm not a federal official or employee" would be the sole evidence of the commission of the perjury. As federal employment is a matter of public record, the truth of the last statement would be evidenced. That would prove that the perjury clause was a FALSE statement. Can't have that proof on the record, can we? About now you are thinking of some tax protester trials for "willful failure" where the defendant took the witness stand and testified, in full truth, that he was not a federal person.
This writer has studied a few such cases. Those of Irwin Schiff and F. Tupper Saussy come to mind. And you are right; they told the court that they weren't federal persons. Unfortunately, they didn't tell the court that while under oath. A most curious phenomenon occurs at "willful failure" trials where the defendant has published the fact, in books or newsletters, that he isn't a federal person. The judge becomes very absent-minded - at least that's surely what he'd try to claim if the issue were ever raised. He forgets to swear-in the defendant before he takes the witness stand. The defendant tells the truth from the witness stand, but does so without an oath. As he's not under oath, nothing he says can constitute a technical perjury as a contradiction to the "perjury clause" on the tax forms already in evidence. The court will almost always judge him guilty for his failure to file. Clever system. And it all begins when a person who is NOT a federal officer or employee signs his first income tax form, FALSELY claiming that he's under an oath which if perjured may bring him a duality of penalties. It's still a matter of jurisdiction (oath spoken). That hasn't changed in over 400 years.
The only difference is that in this nation, we have no monarch able to command us to action. In the United States of America, you have to VOLUNTEER to establish jurisdiction. Once you do, then you are subject to commands regarding the duties of your office. Hence the income tax is "voluntary," in the beginning, but "compulsory" once you volunteer. You volunteer when you sign your very first income tax form, probably a Form W-4 and probably at about age 15. You voluntarily sign a false statement, a false statement that claims that you are subject to jurisdiction. Gotcha! Oh, and when the prosecutor enters your prior signed income tax forms into evidence at a willful failure to file trial, he will always tell the court that those forms evidence that you knew it was your DUTY to make and file proper returns. DUTY!
A free man owes no DUTY. A free man owes nothing to the federal government, as he receives nothing from it. But a federal official owes a duty. He receives something from that government - the benefits of office. In addition to a return of some of those benefits, Congress can also demand that he pay a tax on his other forms of income, now under the 16th Amendment, from whatever source they may be derived. If that were ever to be understood, the ranks of real, sworn federal officers would diminish greatly. And the ranks of the pretended federal officers (including you) would vanish to zero.
It's still the same system as it was 400 years ago, with appropriate modifications, so you don't immediately realize it. Yes, it's a jurisdictional matter. An Oath-spoken matter. Quite likely you, as a student of the Constitution, have puzzled over the 14th Amendment. You've wondered who are persons "subject to the jurisdiction" of the United States and in the alternative, who are not. This is easily explained, again in the proper historical perspective.
The claimed purpose of the 14th was to vest civil rights to the former slaves. A method was needed to convert them from chattel to full civil beings. The Supreme Court had issued rulings that precluded that from occurring. Hence, an Amendment was necessary. But it took a little more than the amendment. The former slaves would need to perform an act, subjecting themselves to the "jurisdiction" of the United States. You should now realize that an oath is the way that was/is accomplished.
After the battles of the rebellion had ceased, the manumitted slaves were free, but rightless. They held no electoral franchise - they couldn't vote. The governments of the Southern States were pretty peeved over what had occurred in the prior several years, and they weren't about to extend electoral franchises to the former slaves. The Federal government found a way to force that.
It ordered that voters had to be "registered." And it ordered that to become a registered voter, one had to SWEAR an oath of allegiance to the Constitution. The white folks, by and large, weren't about to do that. They were also peeved that the excuse for all the battles was an unwritten, alleged, Constitutional premise, that a "State had no right to secede." The former slaves had no problem swearing allegiance to the Constitution. The vast majority of them didn't have the slightest idea of what an oath was, nor did they even know what the Constitution was!
Great voter registration drives took place. In an odd historical twist, these were largely sponsored by the Quakers who volunteered their assistance. Thus, most of the oaths administered were administered by Quakers! Every former slave was sworn-in, taking what actually was an OATH OF OFFICE. The electoral franchise then existed almost exclusively among the former slaves, with the white folks in the South unanimously refusing that oath and denied their right to vote. For a while many of the Southern State governments were comprised of no one other than the former slaves. The former slaves became de jure (by oath) federal officials, "subject to the jurisdiction of the United States" by that oath. They were non-compensated officials, receiving no benefits of their office, save what was then extended under the 14th Amendment. There was some brief talk of providing compensation in the form of 40 acres and a mule, but that quickly faded.
Jurisdiction over a person exists only by oath. Always has, always will. For a court to have jurisdiction, some one has to bring a charge or petition under an oath. In a criminal matter, the charge is forwarded under the oaths of the grand jurors (indictment) or under the oath of office of a federal officer (information). Even before a warrant may be issued, someone has to swear there is probable cause. Should it later be discovered that there was NOT probable cause, that person should be charged with a perjury. It's all about oaths. And the one crime for which immunity, even "sovereign immunity," cannot be extended is ... perjury.
You must understand "jurisdiction." That term is only understandable when one understands the history behind it. Know what "jurisdiction" means. You didn't WILLFULLY claim that you were "Under penalties of perjury" on those tax forms you signed. You may have done it voluntarily, but you surely did it ignorantly! You didn't realize the import and implications of that clause. It was, quite frankly, a MISTAKE. A big one. A dumb one. Still it was only a mistake. Willfulness rests on intent. You had no intent to claim that you were under an oath of office, a perjury of which could bring you dual penalties. You just didn't give those words any thought. What do you do when you discover you've made a mistake? As an honest man, you tell those who may have been affected by your error, apologize to them, and usually you promise to be more careful in the future, that as a demonstration that you, like all of us, learn by your mistakes. You really ought to drop the Secretary of the Treasury of the United States a short letter, cc it to the Commissioner of Internal Revenue. Explain that you never realized that the fine print on the bottom of all income tax forms meant that you were claiming to be "under oath" a perjury of which might be "twice" penalized. Explain that you've never sworn such an oath and that for reasons of conscience, you never will. You made this mistake on every tax form you'd ever signed. But now that you understand the words, you'll most certainly not make that mistake again! That'll be the end of any possibility that you'll ever be charged with "willful failure to file." Too simple? No, it's only as simple as it's supposed to be. Jurisdiction (oath spoken) is a pretty simple matter. Either you are subject to jurisdiction, by having really sworn an oath, or you are not. If you aren't under oath, and abolish all the pretenses, false pretenses you provided, on which the government assumed that you were under oath, then the jurisdiction fails and you become a freeman. A freeman can't be compelled to perform any act and threatened with a penalty, certainly not two penalties, should he fail to do so. That would constitute a treason charge by the part of the definition abolished here.
It's a matter of history - European history, American history, and finally, the history of your life. The first two may be hidden from you, making parts of them difficult to discover. But the last history you know. If you know that you've never sworn an oath of office, and now understand how that truth fits the other histories, then you are free. Truth does that. Funny how that works.
Jesus was that Truth. His command that His followers "Swear not at all." That was the method by which He set men free. Israel was a feudal society. It had a crown; it had landlords; they had tenant farmers bound by oath to them. Jesus scared them silly. Who'd farm those lands in the next generation, when all of the people refused to swear oaths? Ring a bell? And what did the government do to Jesus? It tried to obtain jurisdiction on the false oath of a witness, charging Him with "sedition" for the out-of-context, allegorical statement that He'd "tear down the temple" (a government building). At that trial, Jesus stood mute, refusing the administered oath. That was unheard of!
The judge became so frustrated that he posed a trick question attempting to obtain jurisdiction from Jesus. He said, "I adjure you in the name of the Living God, are you the man (accused of sedition)." An adjuration is a "compelled oath." Jesus then broke his silence, responding, "You have so said."
He didn't "take" the adjured oath. He left it with its speaker, the judge! That bound the judge to truth. Had the judge also falsely said that Jesus was the man (guilty of sedition)? No, not out loud, not yet. But in his heart he'd said so. That's what this trial was all about. Jesus tossed that falsehood back where it belonged as well as the oath. In those few words, "You have so said," Jesus put the oath, and the PERJURY of it, back on the judge, where it belonged. The court couldn't get jurisdiction.
Israel was occupied by Rome at that time. The court then shipped Jesus off to the martial governor, Pontius Pilate, hoping that martial power might compel him to submit to jurisdiction. But Pilate had no quarrel with Jesus. He correctly saw the charge as a political matter, devoid of any real criminal act. Likely, Pilate offered Jesus the "protection of Rome." Roman law extended only to sworn subjects. All Jesus would need do is swear an oath to Caesar, then Pilate could protect him. Otherwise, Jesus was probably going to turn up dead at the hands of "person or persons unknown" which would really be at the hands of the civil government, under the false charge of sedition. Pilate administered that oath to Caesar. Jesus stood mute, again refusing jurisdiction. Pilate "marveled at that." He'd never before met a man who preferred to live free or die. Under Roman law the unsworn were considered to be unclean - the "great unwashed masses." The elite were sworn to Caesar. When an official errantly extended the law to an unsworn person that "failure of jurisdiction" required that the official perform a symbolic act. To cleanse himself and the law, he would "wash his hands." Pilate did so. Under Roman law, the law to which he was sworn, he had to do so. The law, neither Roman law nor the law of Israel, could obtain jurisdiction over Jesus. The law couldn't kill Him, nor could it prevent that murder. Jesus was turned over to a mob, demanding His death. How's that for chaos? Jesus was put to death because He refused to be sworn. But the law couldn't do that. Only a mob could do so, setting free a true felon in the process. Thus, Jesus proved the one failing of the law - at least the law then and there - the law has no ability to touch a truly free man. A mob can, but the result of that is chaos, not order.
In every situation where a government attempts to compel an oath, or fails to protect a man of conscience who refuses it, the result is chaos. That government proves itself incapable of any claimed powers as the result, for the only purpose of any government should be to defend the people establishing it - all of those people - and not because they owe that government any duty or allegiance, but for the opposite reason, because the government owes the people its duty and allegiance under the law. This nation came close to that concept for quite a few decades. Then those in federal office realized that they could fool all of the people, some of the time. That "some of the time" regarded oaths and jurisdiction. We were (and still are) a Christian nation, at least the vast majority of us claim ourselves to be Christian. But we are led by churchmen who still uphold the terms of that European treaty. They still profess that it is Christian to swear an oath, so long as it's a "lawful oath." We are deceived. As deceived as the tenant in 1300, but more so, for we now have the Words of Jesus to read for ourselves.
Jesus said, "Swear no oaths," extending that even to oaths which don't name God. If His followers obeyed that command, the unscrupulous members of the society in that day would have quickly realized that they could file false lawsuits against Jesus' followers, suits that they couldn't answer (under oath). Thus, Jesus issued a secondary command, ordering His followers to sell all they had, making themselves what today we call "judgment proof." They owned only their shirt and a coat. If they were sued for their shirt, they were to offer to settle out-of-court (without oath) by giving the plaintiff their coat. That wasn't a metaphor. Jesus meant those words in the literal sense!
It's rather interesting that most income tax protestors are Christian and have already made themselves virtually judgment proof, perhaps inadvertently obeying one of Jesus' commands out of a self-preservation instinct. Do we sense something here? You need to take the final step. You must swear no oaths. That is the penultimate step in self-preservation, and in obedience to the commands of Christ. It's all a matter of "jurisdiction" (oath spoken), which a Christian can't abide. Christians must be freemen. Their faith, duty and allegiance can go to no one on earth. We can't serve two masters. No one can. As Christians our faith and allegiance rests not on an oath. Our faith and allegiance arise naturally. These are duties owed by a child to his father. As Children of God, we must be faithful to Him, our Father, and to our eldest Brother, the Inheritor of the estate. That's certain.
As to what sort of a society Jesus intended without oaths or even affirmations, this writer honestly can't envision. Certainly it would have been anarchy (no crown). Would it have also been chaos? My initial instinct is to find that it would lead to chaos. Like the Quakers in 1786, I can't envision a functional government without the use of oaths. Yet, every time a government attempts to use oaths as a device to compel servitudes, the result is CHAOS. History proves that. The Dark Ages were dark, only because the society was feudal, failing to advance to enlightenment because they were sworn into servitudes, unwittingly violating Jesus' command. When the British crown attempted to compel oaths of allegiance, chaos certainly resulted. And Jesus' own death occurred only out of the chaos derived by His refusal to swear a compelled oath and an offered oath.
The current Internal Revenue Code is about as close to legislated chaos as could ever be envisioned. No two people beginning with identical premises will reach the same conclusion under the IRC. Is not that chaos? Thus, in every instance where the government attempts to use oaths to bind a people, the result has been chaos.
Hence, this writer is forced to the conclusion that Jesus was right. We ought to avoid oaths at all costs, save our own souls, and for precisely that reason. Yet, what system of societal interaction Jesus envisioned, without oaths, escapes me. How would we deal with murderers, thieves, rapists, etc. present in the society without someone bringing a complaint, sworn complaint, before a Jury (a panel of sworn men), to punish them for these criminal actions against the civil members of that society? Perhaps you, the reader, can envision what Jesus had in mind. Even if you can't, you still have to obey His command. That will set you free. As to where we go from there, well, given that there has never been a society, neither civil nor martial, which functioned without oaths, I guess we won't see how it will function until it arrives.
Meanwhile, the first step in the process is abolishing your prior FALSE claims of being under oath (of office) on those income tax forms. You claimed "jurisdiction." Only you can reverse that by stating the Truth. It worked 400 years ago. It'll still work. It's the only thing that'll work. History can repeat, but this time without the penalty of treason extended to you (or your daughters). You can cause it. Know and tell this Truth and it will set you free. HONESTLY. Tell the government, then explain it to every Christian you know. Most of them will hate you for that bit of honesty. Be kind to them anyhow. Once they see that you are keeping what you earn, the market will force them to realize that you aren't the extremist they originally thought! If only 2% of the American people understand what is written here, income taxation will be abolished - that out of a fear that the knowledge will expand. The government will be scared silly. What if no one in the next generation would swear an oath? Then there'd be no servants! No, the income tax will be abolished long before that could ever happen. That's only money. Power comes by having an ignorant people to rule. A government will always opt for power. That way, in two or three generations, the knowledge lost to the obscure "between the lines" of history, they can run the same money game. Pass this essay on to your Christian friends. But save a copy. Will it to your grandchildren. Someday, they too will probably need this knowledge. Teach your children well. Be honest; tell the truth. That will set you free - and it'll scare the government silly.
White House acts unilaterally on climate
WASHINGTON (AP) — The Obama administration took separate actions last week to protect clean air and federal wilderness areas, reaffirming the White House can pursue its goals without depending on help from an increasingly combative Congress.
In the coming two years, that might become a more popular approach.
In a statement posted on its website late Thursday, the Environmental Protection Agency announced it is moving unilaterally to clamp down on power plant and oil refinery greenhouse emissions, announcing plans for developing new standards over the next year.
EPA administrator Lisa Jackson said the aim was to better cope with pollution contributing to climate change.
“We are following through on our commitment to proceed in a measured and careful way to reduce GHG pollution that threatens the health and welfare of Americans,” Jackson said in a statement. She said emissions from power plants and oil refineries constitute about 40 percent of the greenhouse gas pollution in this country.
President Barack Obama had said two days after the midterm elections he was disappointed Congress hadn't acted on legislation achieving the same end, signaling other options were under consideration.
Jackson's announcement came on the same day the administration showed a go-it-alone approach on federal wilderness protection — another major environmental issue. Interior Secretary Ken Salazar said his agency was repealing the Bush era's policy limiting wilderness protection, which was adopted under former Interior Secretary Gale Norton.
On climate change, legislation in Congress putting a limit on heat-trapping greenhouse gases and allowing companies to buy and sell pollution permits under that ceiling — a system known as “cap and trade” — stalled in the Senate earlier this year after narrowly clearing the House. Republicans assailed it as “cap and tax,” arguing it would raise energy prices.
But the Senate in late June rejected by a 53-47 vote a challenge brought by Alaska Republican Lisa Murkowski that would have denied the EPA the authority to move ahead with the rules.
Jackson noted in Thursday's statement by her agency that several state and local governments and environmental groups had sued the EPA over the agency's failure to update or publish new standards for fossil fuel plants and petroleum refineries.
The announcement Thursday came in connection with a settlement of the suit the states brought against the EPA.
The EPA also announced Thursday it was taking the unprecedented step of directly issuing air permits to industries in Texas, citing the state's unwillingness to comply with greenhouse gas regulations going into effect next Sunday. EPA officials said they reluctantly were taking over Clean Air Act permits for greenhouse gas emissions because “officials in Texas have made clear ... they have no intention of implementing this portion of the federal air permitting program.”
Two days after the midterm elections, Obama served notice that he would look for ways to control global warming pollution other than Congress placing a ceiling on it.
“Cap-and-trade was just one way of skinning the cat; it was not the only way,” he said. “I'm going to be looking for other means to address this problem.”
Copyright 2010 All rights reserved. This material may not be published, broadcast, rewritten or redistributed. This article was published on page A6 of the Sunday, December 26, 2010 edition of The Columbia Daily Tribune.
Substances Generally Recognized as Safe; Reopening of the Comment Period
ALL NATURALLY OCCURING ELEMENTS, THEIR OXIDES, SULFIDES, CHLORIDES, NITRIDES,BOMIDES, FLOURIDES, HYDRIDES, OF ANY NATURE;
COMMISSION OF THE ESSENTIAL PRODUCTS ADMINISTRATION:
EXCEPTIONS
Summary: ?
The Food and Drug Administration (FDA) is reopening the comment period for the proposed rule published in the Federal Register of April 17, 1997 (the 1997 proposed rule). The 1997 proposed rule would replace the voluntary petition process to affirm the generally recognized as safe (GRAS) status of a substance intended for use in food for humans or animals with a voluntary notification procedure. FDA is reopening the comment period to update comments. The proposed rule would also clarify the criteria for exempting the use of a substance as GRAS.
Table of Contents
- Electronic Submissions
- Written Submissions
- I. Background
- II. Request for Comments
- A. Issue 1. Description of Common Knowledge Element and Related Definition of “Scientific Procedures”
- B. Issue 2. Terms
- C. Issue 3. Definitions
- D. Issue 4. Incorporation by Reference
- E. Issue 5. Request That FDA Cease To Evaluate a GRAS Notice
- F. Issue 6. Notifier's Responsibility for a GRAS Conclusion
- G. Issue 7. Appropriately Descriptive Term for the Notified Substance
- H. Issue 8. Public Disclosure
- I. Issue 9. Including Confidential Information in a GRAS Notice
- J. Issue 10. Describing the Identity of a Notified Substance
- K. Issue 11. Dietary Exposure
- L. Issue 12. Filing Decision
- M. Issue 13. Substances Intended for Use in Products Subject to Regulation by the U.S. Department of Agriculture
- O. Issue 14. Timeframe for FDA's Evaluation of a GRAS Notice
- O. Issue 15. Conflict of Interest
- P. Issue 16. Additional Guidance on Documenting GRAS Conclusions
- Q. Issue 17. Pending GRAS Affirmation Petitions
- III. Costs and Benefits
- IV. Paperwork Reduction Act of 1995
- V. Comments
- VI. References
- Footnotes
Addresses: ?
You may submit comments, including comments regarding the proposed collection of information, identified by Docket No. FDA-1997-N-0020, by any of the following methods:
Electronic Submissions ?
Submit electronic comments in the following way:
• Federal eRulemaking Portal: http://www.regulations.gov . Follow the instructions for submitting comments.
Written Submissions ?
Submit written submissions in the following ways:
• FAX: 301-827-6870.
• Mail/Hand delivery/Courier (for paper, disk, or CD-ROM submissions): Division of Dockets Management (HFA-305), Food and Drug Administration, 5630 Fishers Lane, Rm. 1061, Rockville, MD 20852.
Instructions: All submissions received must include the Agency name and Docket No. FDA-1997-N-0020, for this rulemaking. All comments received may be posted without change to http://www.regulations.gov , including any personal information provided. For additional information on submitting comments, see the “Comments” heading of the SUPPLEMENTARY INFORMATION section of this document.
Docket: For access to the docket to read background documents or comments received, go to http://www.regulations.gov and insert the docket number, found in brackets in the heading of this document, into the “Search” box and follow the prompts and/or go to the Division of Dockets Management, 5630 Fishers Lane, Rm. 1061, Rockville, MD 20852.
For further information contact: ?
With regard to substances that would be used in human food: Paulette M. Gaynor, Center for Food Safety and Applied Nutrition (HFS-255), Food and Drug Administration, 5100 Paint Branch Pkwy., College Park, MD 20740, 301-436-1192.
With regard to substances that would be used in food for animals: Geoffrey K. Wong, Center for Veterinary Medicine (HFV-224), Food and Drug Administration, 7519 Standish Pl., Rockville, MD 20855, 240-453-6879.
With regard to the information collection: Denver Presley Jr., Office of Information Management, Food and Drug Administration, 1350 Piccard Dr., PI50-400B, Rockville, MD 20850, 301-796-3793.
Supplementary information: ?
I. Background ?
In the 1997 proposed rule, FDA proposed to replace the voluntary GRAS affirmation petition process in §§ 170.35(c) and 570.35(c) ( 21 CFR 170.35 (c) and 570.35(c)) with a voluntary notification procedure whereby any person may notify us of a determination that a particular use of a substance in human food (proposed § 170.36) or in food for animals (proposed § 570.36) is GRAS. [1] We also proposed to clarify the criteria in §§ 170.30 ( 21 CFR 170.30 ) and 570.30 ( 21 CFR 570.30 ) whereby the use of a substance is not subject to the premarket approval requirements of the FD&C Act because it is GRAS. To simplify the discussion in this document, in general,we refer to provisions of the 1997 proposed rule and issues for further comment from the perspective of the regulations that would be established in part 170 (21 CFR part 170). Unless we say otherwise, however, the issues discussed also apply to the corresponding provisions for part 570.
Under the proposed notification procedure, a GRAS notice would include: (1) A “GRAS exemption claim” in which a notifier would take responsibility for a GRAS determination; (2) information about the identity of the notified substance, including information about the method of manufacture (excluding any trade secrets); (3) information about any self-limiting levels of use; and (4) a comprehensive discussion of the basis for the GRAS determination. We would evaluate whether the notice provides a sufficient basis for a GRAS determination and would respond to the notifier in writing. We would immediately make available to the public the notice's “GRAS exemption claim” and our response to the notice, and disclose other releasable information in a notice in accordance with our regulations, in part 20 (21 CFR part 20), implementing the Freedom of Information Act.
We invited interested persons who determine that a use of a substance is GRAS to notify us of those determinations, under the framework of the 1997 proposed rule, during the interim between the proposed and final rules ( 62 FR 18938 at 18954). We said that we would determine whether our experience in administering such notices suggested that modifications to the proposed notification procedure were necessary ( 62 FR 18938 at 18954). During the period from February 1, 1999, through December 31, 2009 (the interim period), our Center for Food Safety and Applied Nutrition (CFSAN) received approximately 26 GRAS notices per year about substances intended for use in human food. The Center for Veterinary Medicine (CVM) established a pilot notification program only recently. ( See the Federal Register of June 4, 2010; 75 FR 31800 .)
The memorandum in reference 1 of this document describes CFSAN's experience (through December 31, 2009). In the remainder of this document, we refer to this memorandum as the “experience document.” Because CVM's pilot program began relatively recently, the experience document does not describe any experience under CVM's pilot notification program.
Also, from 2008 to 2010, the Government Accountability Office (GAO) conducted a study related to food ingredients determined to be GRAS and, in 2010, issued a report (Ref. 2, the GAO report) that included a number of recommendations for FDA's food ingredient program. FDA responded to the GAO's recommendations, and that response is also included in the GAO report.
II. Request for Comments ?
Because of the length of time that has elapsed since publication of the 1997 proposed rule, we are interested in updating comments before issuing a final rule. In addition, based on CFSAN's experience with GRAS notices during the interim period, comments we received on the proposed rule, and GAO's recommendations, we have identified a number of issues within the scope of the proposed rule that may require further clarification. Specifically, these issues relate to the proposed revisions to § 170.30 (Issue 1), the proposed establishment of a notification procedure (Issues 2 through 16), and the effect of the proposed notification procedure on existing GRAS petitions (Issue 17). [2] Accordingly, we are requesting comments on the entire 1997 proposed rule as well as on the specific issues identified in this document.
Comments previously submitted to the Division of Dockets Management (previously the Dockets Management Branch), including comments submitted to the Division of Dockets Management after the comment period closed on July 16, 1997, but before December 28, 2010, do not need to be resubmitted in response to this notice because all such comments will be considered in any final rule based on the 1997 proposed rule and this document. [3]
A. Issue 1. Description of Common Knowledge Element and Related Definition of “Scientific Procedures” ?
In the 1997 proposed rule, we proposed to revise § 170.30 to broaden the description of the common knowledge element to clarify the types of technical evidence of safety that would form the basis of a GRAS determination, and to clarify the role of publication in satisfying the common knowledge element. Specifically, we proposed revising § 170.30(b) from “* * * ordinarily be based upon published studies which may be corroborated by unpublished studies and other data and information.” to “based upon generally available and accepted scientific data, information, methods, or principles, which ordinarily are published and may be corroborated by unpublished scientific data, information, or methods.” We also proposed a companion change to the definition of scientific procedures (§ 170.3(h)) from “Scientific procedures include those human, animal, analytical, and other scientific studies, whether published or unpublished, appropriate to establish the safety of a substance.” to “Scientific procedures include scientific data (such as human, animal, analytical, or other scientific studies), information, methods, and principles, whether published or unpublished, appropriate to establish the safety of a substance.”
Most of the comments addressing these proposed amendments supported the amendments. In general, these comments expressed the opinion that the proposed amendments would more accurately reflect the state of contemporary science than the provisions they would replace. One comment objected to the proposed amendment to § 170.30(b). This comment asserted that the proposed amendment would de-emphasize or eliminate the existing criterion for peer-reviewed studies. One comment objected to the proposed amendment to § 170.3(h) because, under the proposed amendment, an “unpublished principle” could inappropriately be considered a sufficient scientific procedure for demonstrating the safety of a food substance.
In light of these comments, we reviewed our proposed inclusion of scientific “principles” in the proposed amendments to §§ 170.3(h) and 170.30(b). “Principle” can be defined asa fundamental cause or basis of something; a primary element, force, or law determining a particular result; or a fundamental truth or proposition on which others depend (Shorter Oxford English Dictionary, 5th Edition, 2002). Thus, a principle is a different genre than data, information, and methods and is, by its very nature, generally available and accepted. An “unpublished principle” is a non-sequitur. Therefore, the adjectives “published” and “unpublished” should not modify scientific “principles.”
We also reviewed our use of the term “study” in the proposed companion change to the definition of scientific procedures. A procedure can be defined as a particular mode or course of action (Shorter Oxford English Dictionary, 5th Edition, 2002); a “study” can be defined as the devotion of time and attention to acquiring information or knowledge or as applying the mind to acquiring knowledge, especially devoting time and effort to this end (Id.). The terms “procedure” and “study” each carry the connotation of an action. However, “data and information” would be the outcome of a study or procedure and do not carry the connotation of an action. To be a “procedure,” data, information, methods or principles would need to be acquired or applied.
We are seeking comment on the use of those terms. For example, we are considering whether to revise the second sentence of § 170.30(b) to require that general recognition of safety through scientific procedures be based upon the application of generally available and accepted scientific data, information, or methods, which ordinarily are published, as well as the application of scientific principles, and may be corroborated by the application of unpublished scientific data, information, or methods. We also are considering whether to revise the definition of scientific procedures to include the application of scientific data (including, as appropriate, data from human, animal, analytical, and other scientific studies), information, and methods, whether published or unpublished, as well as the application of scientific principles, appropriate to establish the safety of a substance.
B. Issue 2. Terms ?
In the 1997 proposed rule, we used the terms “determine” and “determination” to describe the action of a person who informs us that the use of a food substance is GRAS under the proposed notification procedure. However, as discussed in the experience document, during the interim period CFSAN responded to approximately 5 percent of submitted GRAS notices with a letter informing the notifier that the notice did not provide a basis for a “GRAS determination” (Ref. 1). Clearly, in these cases it was CFSAN's view that the notifier had not “determined” GRAS status. To clarify that the submission of a GRAS notice reflects the view of the notifier and may not necessarily provide an adequate basis for a GRAS determination, we have tentatively concluded that the terms “conclude” and “conclusion” in lieu of “determine” and “determination” would be more appropriate, and therefore in this document we use the terms “conclude” and “conclusion.” We seek comment on these terms.
C. Issue 3. Definitions ?
In the 1997 proposed rule, we did not propose definitions of terms that would be associated with the GRAS notification procedure. However, it would be consistent with the Plain Language Initiative for a final rule to include definitions of terms used in the rule. While the meanings of some terms (such as “notified substance”) were implicit in the discussion of the proposed notification procedure, to ensure the opportunity to comment on these definitions, we include them here. In addition, some terms not used in the 1997 proposed rule may be useful in light of comments already received. We seek comment on the definitions described in the following paragraphs.
(Issue 3a). “Amendment” and “supplement.” Several comments asked FDA to allow a notifier to address questions FDA had about a GRAS notice by submitting an amendment to the notice. As discussed in the experience document (Ref. 1), during the interim period several notifiers submitted one or more amendments to their GRAS notices. We would define “amendment” to mean any data or other information that you submit regarding a filed GRAS notice before we respond to the notice.
As discussed in the experience document (Ref. 1), during the interim period several notifiers submitted information to a GRAS notice after CFSAN responded to the notice. We would define “supplement” to mean any data or other information that you submit regarding a filed GRAS notice after we respond to the notice.
(Issue 3b) “Notified substance,” “notifier,” and “qualified expert.” We would define “notified substance” to mean the substance that is the subject of your GRAS notice. We would define “notifier” to mean the person who is responsible for the GRAS notice, even if another person (such as an attorney, agent, or qualified expert) prepares or submits the notice or provides an opinion about the basis for a conclusion of GRAS status. Consistent with section 201(s) of the FD&C Act ( 21 U.S.C. 321 (s)), we would define “qualified expert” to mean an individual who is qualified by scientific training and experience to evaluate the safety of substances added to food.
D. Issue 4. Incorporation by Reference ?
One comment requested that a notifier be permitted to reference a previously submitted GRAS notice to support a view that an additional use of the applicable substance is GRAS. In the comment's view, this process, known as “incorporation by reference,” would be administratively efficient. As discussed in the experience document (Ref. 1), during the interim period CFSAN encouraged notifiers to use a process such as that recommended in the comment.
We are therefore seeking comment on whether to include a provision in the final rule to expressly permit the notifier to incorporate by reference either data and information that were previously submitted by the notifier, or public data and information submitted by another party, when such data and information remain in our files, such as data and information contained in a previous GRAS notice, a food additive petition, or a food master file.
While the data and information in a previously submitted GRAS notice are generally publicly available, other data and information that have been submitted to us may be confidential. We do not anticipate that a notifier would have access to another party's confidential data or information.
We note that, regardless of whether a notifier incorporates by reference data or information, we may consider taking into account other relevant data or information that we have from other sources. As discussed in the experience document (Ref. 1), during the interim period CFSAN did review information that was available in its files but not available to the applicable notifier.
E. Issue 5. Request That FDA Cease To Evaluate a GRAS Notice ?
Several comments requested that the notification procedure provide for a notifier to withdraw a notice in light of our questions about the notice. These comments considered such a provision would provide the notifier with an opportunity to resubmit a notice addressing our questions.
Under § 20.29, no person may withdraw records submitted to FDA. While a notifier cannot withdraw a GRAS notice submitted to FDA, whenwe issued the proposed rule, we considered a request that FDA cease to evaluate a GRAS notice to be an implicit prerogative not needing explicit authorization in the rule. For GRAS notices that FDA has ceased to evaluate at the request of the notifier, the GRAS notices remain in our files and, thus, are available for public disclosure, subject to procedures established in part 20.
As discussed in the experience document (Ref. 1), at the request of the notifier, CFSAN ceased to evaluate approximately 16 percent of GRAS notices that came to closure by December 31, 2009. Persons who rely only on the provisions of proposed § 170.36, without referring to our letters responding to GRAS notices, may not be aware of the implicit prerogative to request that FDA cease to evaluate a GRAS notice.
Therefore, we are seeking comment on whether the rule should explicitly state that you may request in writing that we cease to evaluate your GRAS notice at any time during our evaluation of your GRAS notice.
F. Issue 6. Notifier's Responsibility for a GRAS Conclusion ?
(Issue 6a) Under proposed § 170.36(c)(1), the GRAS notice would be dated and signed by the notifier or by the notifier's attorney or agent or (if the notifier is a corporation) by an authorized official. As discussed in the experience document (Ref. 1), during the interim period CFSAN received some GRAS notices in which the combination of an illegible signature and the lack of a typed or printed name to accompany the signature made it impossible to identify the person who was signing the document. Therefore, we are seeking comment on how to best ensure that the identity and authority of the person who is signing the GRAS notice is made clear. For example, we are considering requiring that the GRAS notice state the name and the position or title of the person who signs it.
(Issue 6b) Under the GRAS affirmation petition process, a petitioner is required to submit a petition for GRAS affirmation under 21 CFR part 10 (§ 170.35(c)(1)(v)). As part of this petition, a petitioner is required to submit a statement that, “to the best of his knowledge, it [the GRAS affirmation petition] is a representative and balanced submission that includes unfavorable information, as well as favorable information, known to him and pertinent to the evaluation of the safety of the substance.” (§ 170.35(c)(1)(v)). We implicitly proposed this provision under proposed § 170.36(c)(4), which proposed to require, among other things, that a GRAS notice include a comprehensive discussion of any reports of investigations or other information that may appear to be inconsistent with the conclusion of GRAS status. We are seeking comment on whether the GRAS notification procedure should be as explicit on this point as the GRAS affirmation petition process it would replace.
We also are seeking comment on whether to require a notifier to certify to this statement, which would be consistent with the certification in item E. Certification in § 10.30(b). Such certification also would be consistent with the procedures established for another notification program in CFSAN, the premarket notification program for food contact substances. ( See § 171.101(e) and FDA Form No. 3480 (Ref. 4).)
G. Issue 7. Appropriately Descriptive Term for the Notified Substance ?
In the 1997 proposed rule, we proposed to require that the GRAS notice include the common or usual name of the notified substance (proposed § 170.36(c)(1)(ii)). We also advised that notifiers with questions concerning the common or usual name for a substance consult with CFSAN's Office of Food Labeling (now the Office of Nutrition, Labeling and Dietary Supplements) (for a substance that would be used in human food) or with CVM's Division of Animal Feeds (for a substance that would be used in animal food). [4] As discussed in the experience document (Ref. 1), in 2004, CFSAN began to routinely advise notifiers that its use of a particular term to identify the notified substance in a letter responding to a GRAS notice should not be considered an endorsement or recommendation of that term as an appropriate common or usual name for the purpose of complying with the labeling provisions of the FD&C Act.
A GRAS notice addresses sections 201(s) and 409 of the FD&C Act and does not address the labeling provisions of the FD&C Act or FDA's corresponding regulations. We are seeking comment on whether to revise proposed § 170.36(c)(1)(ii) to make this more clear. For example, instead of requiring that the GRAS notice include the common or usual name of the notified substance, we are considering requiring that the GRAS notice include the name of the notified substance, using an appropriately descriptive term. We note that this may be the same as the term which you may believe would be the common or usual name of the substance under 21 CFR parts 102 (human food) and 502 (animal food).
H. Issue 8. Public Disclosure ?
Under proposed § 170.36(f)(1), the elements listed in proposed § 170.36(c)(1)) would be immediately available for public disclosure on the date the notice is received. As a practical consequence of this proposed provision, the fact that we had received a GRAS notice ( i.e., the existence of the GRAS notice) would be immediately available to the public. As discussed in the experience document (Ref. 1), we have made this information readily accessible to the public. CFSAN currently is making a “GRAS Notice Inventory” available on its Internet site. CFSAN presents notice-specific information (such as the name and address of the notifier, the name of the notified substance, and the intended conditions of use) extracted from the information submitted under proposed § 170.36(c)(1). CFSAN expects that the ways by which we make this information readily accessible to the public will evolve over time.
Because, under proposed § 170.36(f)(1), the information submitted under proposed § 170.36(c)(1) would be immediately available for public disclosure, it is implicit in this provision that a person submitting information under proposed § 170.36(c)(1) should not include in this portion any non-public information such as trade secret information, confidential commercial or financial information, and personal privacy information. Based on our experience, notifiers did not identify any information in the information submitted under proposed § 170.36(c)(1) as being confidential. We are seeking comment on whether the final rule should explicitly require that the information submitted under proposed § 170.36(c)(1) exclude non-public information.
I. Issue 9. Including Confidential Information in a GRAS Notice ?
We proposed that the method of manufacture in a GRAS notice exclude any trade secrets (proposed § 170.36(c)(2)). However, we stated that a notifier who considers that certain information in a submission should not be available for public disclosure should identify as confidential the relevant portions of the submission for our consideration ( 62 FR 18938 at 18952). We further stated we would review the identified information, determinewhether that information is exempt from public disclosure under part 20 and release or protect the information in accordance with our determination. We advised that, in most cases, we would be likely to determine all information in a GRAS notice is available for public disclosure, because a conclusion of GRAS status must be based on generally available data and information.
We received several comments about whether confidential information should be included in a GRAS notice. In essence, these comments suggested that we both provide for the submission of trade secrets or other confidential information in a GRAS notice and protect the trade secrets or other confidential information from public disclosure, just as we would in the case of submissions such as food additive petitions.
As discussed in the experience document (Ref. 1), during the interim period CFSAN did accept some GRAS notices that included information identified by the notifier as confidential. When a GRAS notice included such information, in no case did CFSAN disclose the identified information. In some cases, including confidential information in a GRAS notice did not present a problem because it was corroborative information. However, in other cases CFSAN questioned whether there could be a basis for a conclusion of GRAS status if qualified experts generally did not have access to the confidential information.
In light of both the comments and CFSAN's experience, we are seeking comments relevant to including confidential information in a GRAS notice. We note that, while the decision to submit a GRAS notice would be voluntary, the provisions governing the GRAS notification procedure, including the information to be submitted, would be mandatory.
(Issue 9a) We are seeking comment on whether proposed § 170.36(c)(2) should stipulate that the method of manufacture exclude any trade secrets, as it was proposed.
(Issue 9b) We are seeking comment on whether to require that a notifier who identifies one or more trade secret(s), as defined in § 20.61(a), in the GRAS notice explain why it is trade secret information and how qualified experts could conclude that the intended use of the notified substance is GRAS without access to the trade secret(s).
(Issue 9c) We are seeking comment on whether to require that a notifier who identifies confidential commercial or financial information, as defined in § 20.61(b), in the GRAS notice explain why it is confidential commercial or financial information and how qualified experts could conclude that the intended use of the notified substance is GRAS without access to such information.
J. Issue 10. Describing the Identity of a Notified Substance ?
Under proposed § 170.36(c)(2), a GRAS notice would include “Detailed information about the identity of the notified substance, including, as applicable, its chemical name, Chemical Abstracts Service Registry Number, Enzyme Commission number, empirical formula, structural formula, quantitative composition, method of manufacture (excluding any trade secrets and including, for substances of natural biological origin, source information such as genus and species), characteristic properties, any content of potential human toxicants, and specifications for food-grade material.”
(Issue 10a) Based on our experience, we have found that when the source of a notified substance is a biological material ( e.g., a plant, animal, or microorganism), taxonomic information about genus and species may be insufficient to identify a biological source. The experience document (Ref. 1) provides examples of GRAS notices including information such as genus, species, variety, strain, part of a plant source (such as fruit, seeds or seed husks, expressed oil, flowers, roots, leaves, pulp, wood, or bark), and part of an animal source (such as fluid, muscle mass, egg, shells, or extracted oil). We note that some GRAS substances are derived from animal organs ( e.g., the enzyme preparation “catalase” is manufactured from cow's liver ( 21 CFR 184.1034 )) or tissue ( e.g., the enzyme preparation “animal lipase” is manufactured from edible forestomach tissue or from animal pancreatic tissue ( 21 CFR 184.1415 )). We request comment on what scientific information would be sufficient to identify the biological source.
(Issue 10b) Based on our experience, we have found that information about substances known to be toxicants is relevant regardless of the state of the science regarding the specific toxicity of the substance to humans. For example, during the interim period CFSAN evaluated a GRAS notice about a substance derived from a biological source that is known to contain mutagenic substances (Ref. 1). Therefore, we are seeking comment on whether to require that information about the identity of the notified substance specify any known toxicants that could be in the source.
(Issue 10c) Substances that have a small particle size often have chemical, physical, or biological properties that are different from those of their larger counterparts (Ref. 5) and, thus, particle size and associated chemical and physical properties may be relevant to the identity of the notified substance. GAO's recent recommendations also encouraged us to obtain more information about the use of engineered nanomaterials (Ref. 2). Therefore, we are seeking comment on whether the final rule should address, as part of identity, particle size and other chemical and physical properties that may be used to characterize engineered materials.
K. Issue 11. Dietary Exposure ?
We proposed to require that a notice regarding a conclusion of GRAS status through scientific procedures include a comprehensive discussion of, and citations to, generally available and accepted scientific data, information, methods, or principles that the notifier relies on to establish safety, including a consideration of the “probable consumption of the substance and the probable consumption of any substance formed in or on food because of its use and the cumulative effect of the substance in the diet, taking into account any chemically or pharmacologically related substances in such diet” (proposed § 170.36(c)(4)(i)(A)). This proposed provision restated the statutory language of section 409(c)(5) of the FD&C Act regarding dietary exposure.
We proposed to require that a notice regarding a conclusion of GRAS status through experience based on common use in food include a comprehensive discussion of, and citations to, generally available data and information that the notifier relies on to establish safety, including evidence of a substantial history of consumption of the substance by a significant number of consumers [5] (proposed § 170.36(c)(4)(ii)(A)). This proposed provision was silent on the probable consumption of the substance by present-day consumers.
We are seeking comment on issues related to the proposed provisions for information about dietary exposure to a notified substance.
(Issue 11a) We are seeking comment on whether proposed § 170.36(c)(4)(i)(A) should continue to restate the statutory language of section 409(c)(5) of the FD&C Act or whether this provision should be stated more clearly, for example, by requiring information aboutdietary exposure ( i.e., the amount of the notified substance that consumers are likely to eat or drink as part of a total diet).
(Issue 11b) Over 50 years have passed since passage of the 1958 Food Additives Amendment establishing the requirements for food additives and the corresponding provisions for GRAS substances in food. In evaluating whether use of a substance is GRAS through experience based on common use in food, we rely on information documenting that the “common use in food” of a substance satisfies the definition in § 170.3(f) such that adverse health effects, if they occurred, could be noted. In other words, a substance is not eligible for GRAS status merely because it was used in food before January 1, 1958, if such use were not sufficiently widespread ( 62 FR 18938 at 18949). Therefore, we are seeking comment on whether a GRAS notice should be required to include information about dietary exposure to contemporary consumers regardless of whether the determination of GRAS status is through scientific procedures or through experience based on common use in food.
(Issue 11c) Some substances are administered to certain animal species through their drinking water. Section 201(f) of the FD&C Act defines food as “articles used for food or drink for man or other animals.” In the proposed rule, we utilized the terms, “foods” and “diet,” when addressing the intended use and safety evaluation of notified substances. We are seeking comment on whether it is necessary to clarify that the GRAS notification procedure is applicable to substances used in both food and drinking water of animals and, if so, whether it would be necessary to clarify this in the provisions of proposed § 570.36.
(Issue 11d) Under proposed § 570.36(c)(1)(iii), notifiers would submit information about the applicable conditions of use of the notified substance, including a description of the population expected to consume the substance. For substances added to animal food, the applicable population is the specific animal species intended to consume the substance. Animal species differ in their physical characteristics, digestive physiology, and metabolic pathways. Therefore, a substance that is safe for use in one animal species may not be safe for use in other species, and FDA would need to know the intended species in order to properly evaluate the notifier's safety assessment of the intended use of the substance. We are seeking comment on whether it is necessary to clarify proposed § 570.36(c)(1)(iii) to explicitly require submission of information about the animal species expected to consume the substance.
(Issue 11e) Proposed § 570.36(c)(2) would require that notifiers submit detailed information about the notified substance, including any content of potential human or animal toxicants. Additionally, proposed §§ 570.36(c)(4)(i)(A) and (c)(4)(ii)(A) would require that notifiers submit a comprehensive discussion of, and citations to, the information that the notifier relies on to establish safety. Where a substance is intended for use in the food of an animal used to produce human food, these sections of the proposed rule would require that the notifier include citations to information about both target animal ( i.e., the specific animal species that are fed the notified substance) and human safety. The information provided would need to be sufficient to show that the use of the substance is generally recognized among qualified experts to be safe for animals consuming food containing the substance as well as for humans consuming food derived from such animals ( i.e., under its intended conditions of use). A GRAS notice for a substance intended for use in the food of an animal used to produce human food submitted without such information would likely receive a response from FDA stating that FDA has identified questions regarding whether the intended use of the substance is GRAS. ( See the proposed rule ( 62 FR 18938 at 18950).) Therefore, we are seeking comment on whether it is necessary to clarify applicable sections of the proposed rule to explicitly require, for substances intended for use in the food of an animal used to produce human food, the submission of information about both target animal and human safety.
L. Issue 12. Filing Decision ?
Some comments to the 1997 proposed rule recommended that we conduct a preliminary review of a submission, before we file it as a GRAS notice, to determine whether it appears, on its face, to meet the format requirements. Some comments suggested that we “decline to file” a notice that appears to be inadequate, e.g., because it lacks critical data or information. These comments considered that a preliminary review that resulted in a “filing decision” would be analogous to the current procedure whereby we review a GRAS affirmation petition to determine whether it appears, on its face, to meet the format requirements for the GRAS affirmation petition process.
As discussed in the experience document (Ref. 1), CFSAN routinely conducted such a preliminary review of each submitted GRAS notice. Based on our experience, it was the complete evaluation process that identified those data or information that are critical to establish GRAS status. Therefore, a decision on our part to file a submission as a GRAS notice has not reflected our judgment as to whether the notice addressed all issues or discussed all critical data or information.
We are seeking comment on whether we should make explicit the process by which FDA makes such a filing decision, including the factors we should use to determine whether to file a submission as a GRAS notice. Some potential factors could be the following:
• Whether your submission includes all required sections;
• Whether you provided all required copies;
• Where information provided is identified as being confidential, whether you explain the basis for your conclusion of GRAS status;
• Whether we still retain as a record any data or information that you ask us to incorporate by reference; and
• Whether the subject of your submission is: (1) Already authorized for use under our regulations or (2) a mixture of substances that are already authorized for use under our regulations. For example, if we receive a submission about a mixture of substances, each of which is affirmed as GRAS under 21 CFR part 184 for use as an antimicrobial in human food, and the intended use of the mixture is as an antimicrobial, we may treat the submission as general correspondence and inform the notifier that we do not devote resources to evaluating the use of such mixtures under the GRAS notification procedure.
M. Issue 13. Substances Intended for Use in Products Subject to Regulation by the U.S. Department of Agriculture ?
Subsequent to the 1997 proposal, we issued a final rule amending the GRAS affirmation petition process to provide for simultaneous review of a GRAS notice by FDA and the U.S. Department of Agriculture's (USDA's) Food Safety and Inspection Service (FSIS) when the intended use of the notified substance includes use in products subject to regulation by FSIS ( 65 FR 51758 , August 25, 2000). Under § 170.35(c)(3)(i), we forward a copy of a GRAS affirmation petition to FSIS for simultaneous review under the Poultry Products Inspection Act (PPIA) ( 21 U.S.C 451 et seq. ) or the Federal Meat Inspection Act (FMIA) ( 21 U.S.C. 601 et seq. ). Under§ 170.35(c)(3)(ii), we ask USDA to advise whether the proposed uses comply with the FMIA or PPIA or, if not, whether use of the substance would be permitted in products under USDA jurisdiction under specified conditions or restrictions. The provisions of this review process reflect interagency coordination to ease the burden on regulated industries and consumers.
In addition, as discussed in the experience document (Ref. 1), during the interim period CFSAN developed a Memorandum of Understanding (MOU) with USDA's FSIS ( 65 FR 33330 , May 23, 2000), which provides for the same coordinated review process for GRAS notices when the intended use of the notified substance includes use in products subject to regulation by FSIS. Under the terms of the MOU, CFSAN forwards a copy of an applicable GRAS notice to FSIS. CFSAN then simultaneously evaluates the basis for GRAS status while FSIS evaluates whether the intended use of the notified substance in meat or poultry products complies with the FMIA or PPIA or, if not, whether use of the substance would be permitted in products under FSIS jurisdiction under specified conditions or restrictions. In addition, during the interim period responsibility to administer the Egg Products Inspection Act (EPIA) ( 21 U.S.C. 1031 et seq. ) was transferred from the Agricultural Marketing Service of USDA to FSIS ( 69 FR 1647 ; January 12, 2004). In light of this transfer of responsibility, FSIS provided its review of the use of a notified substance in egg products when a GRAS notice that CFSAN sent to USDA for its review under the PPIA or the FMIA also described a use in egg products (Ref. 1).
As discussed in the experience document (Ref. 1), more than 25 percent of GRAS notices filed during the interim period included the use of the notified substance in products subject to regulation by FSIS under the FMIA or the PPIA, and FDA obtained FSIS review for these substances.
We are seeking comment on whether to make our coordinated review process with FSIS explicit in the final rule. We also are seeking comment on whether such a procedure should provide that a notifier who submits a GRAS notice for the use of a notified substance in products subject to regulation by FSIS provide an additional paper copy or an electronic copy of the GRAS notice that we could send to FSIS. This would improve the efficiency of a simultaneous review process. We note that FSIS, under statutes it administers, does not review the use of substances intended for use in food for animals and therefore there would be no need for a counterpart provision in proposed § 570.36 for substances intended for use in food for animals.
O. Issue 14. Timeframe for FDA's Evaluation of a GRAS Notice ?
Section 170.35 does not specify a timeframe for FDA to complete the rulemaking associated with a GRAS affirmation petition. However, we proposed to respond to a GRAS notice within 90 days to reflect both a commitment to operational efficiency and a belief that our evaluation of whether a notice provides a sufficient basis for a conclusion of GRAS status could likely be accomplished in such a period. We also considered whether the timeframe for our response should be longer than 90 days, and specifically requested comment on whether the proposed 90-day timeframe for an Agency response should be lengthened, e.g., to 120 days or 150 days. In addition, we noted that comments on the proposal may justify a longer timeframe for notifications concerning substances used in animal food.
Several comments favored a 90-day timeframe because a 90-day timeframe would provide an incentive for manufacturers to submit GRAS notices. Other comments questioned whether the proposed 90-day timeframe would allow sufficient time for us to adequately evaluate a GRAS notice and urged us to establish a realistic timeframe that we would hold ourselves accountable to.
As shown in the experience document (Ref. 1), during the interim period CFSAN responded to approximately 12 percent of GRAS notices within 90 days, and required more than 180 days to respond to more than 31 percent of GRAS notices. As discussed in the experience document (Ref. 1), the scientific challenges associated with the safety assessment conducted by the notifier were a factor in the time CFSAN needed to respond to a GRAS notice. We request comment on whether we should retain a set timeframe for us to respond to a GRAS notice, and, if so, whether it should be 90 days or another timeframe.
O. Issue 15. Conflict of Interest ?
In the GAO report (Ref. 2), GAO noted that we have not issued any conflict of interest guidance that companies can use to help ensure that the members of their expert panels are independent. Further, GAO recommended that FDA develop a strategy to minimize the potential for conflicts of interest, including taking steps such as issuing guidance for companies on conflict of interest and requiring information in GRAS notices regarding expert panelists' independence. As discussed in the GAO report (Ref. 2), we consider that the use of an expert panel is one way to demonstrate consensus ( i.e., the common knowledge element of safety) and we do not consider the view of an expert panel alone to be determinative for establishing safety. We seek comment on whether companies would find it useful to have guidance on potential conflicts of interest of GRAS expert panelists. If such guidance would be useful, we seek comment on what companies currently do to mitigate such a conflict. We also seek comment on whether to require that GRAS notices include information regarding expert panelists' independence.
P. Issue 16. Additional Guidance on Documenting GRAS Conclusions ?
The GAO report recommended that FDA issue guidance on how to document GRAS conclusions (Ref. 2). In our response to GAO, we noted the guidance in the preamble to the GRAS proposal and the guidance on our Web site that answers common questions about the food ingredients classified as GRAS in the form of frequently asked questions (Ref. 6). We seek comment whether there is a need to clarify that this guidance also applies to a GRAS conclusion that is not submitted to FDA under the proposed notification procedure and whether there is a need for FDA to develop further guidance on documenting such a GRAS conclusion.
Q. Issue 17. Pending GRAS Affirmation Petitions ?
In the 1997 proposed rule, we proposed to presumptively convert any filed, GRAS affirmation petition that is pending on the effective date of the rule (hereinafter referred to as a “pending petition”) to a GRAS notice. The conversion would take place on the effective date of the final rule. Any person (hereinafter referred to as an “affected petitioner”) who had submitted a GRAS affirmation petition could amend the converted petition by submitting the dated and signed document that would be required under proposed § 170.36(c)(1). In essence, we would waive the requirement for an affected petitioner who submitted such a document to agree to provide us with access to applicable data and information upon request if the affected petitioner informed us that the complete record that supports the conclusion of GRAS status had been submitted in the applicable GRAS petition. The proposed procedures for our review and administration of a converted petition would be similar to those for a newlysubmitted GRAS notice. However, by 90 days after the effective date of the final rule, [6] we would inform any affected petitioner who had not submitted a certification that the converted petition was inadequate as a notice.
A few comments stated that the 1997 proposed rule did not discuss the fate of a pending petition if the petitioner elected not to submit a conversion amendment. These comments did not understand the implications of the proposed provisions which, in essence, would consider that the affected petitioner had not provided a basis for a conclusion of GRAS status.
Many comments objected to the proposed provisions regarding pending petitions. In general, these comments expressed the opinion that our proposal was fundamentally unfair to an affected petitioner because an affected petitioner had invested considerable time and resources in the petition process. Some comments suggested that we “grandfather” a pending petition ( i.e., complete the rulemaking that began under the petition process), as a matter of course, in those circumstances where we had completed our scientific review and had no outstanding scientific questions. Other comments suggested that such a “grandfather” provision be an option available to an affected petitioner rather than a matter of course. One comment recommended that the final rule provide a petitioner with a period of 180, rather than 90, days to submit the dated and signed document providing information in proposed § 170.36(c)(1). This comment argued that many of these petitions had been pending for years, that the subjects of the petitions had been marketed during those years, and that there would therefore be no urgency in closing the applicable files.
In light of the view of the comments that our proposed disposition of pending petitions was unfair, in this document we are seeking comments regarding pending petitions. Specifically, we seek comment on how to reduce the impact on affected petitioners while retaining the principle that we will not devote resources to pending petitions. We seek comment on whether an outcome of “withdrawal without prejudice” instead of “insufficient basis” would be more appropriate when an affected petitioner simply chooses not to have the pending petition considered under the GRAS notification procedure. We are seeking comment on whether an affected petitioner could request that we incorporate by reference a withdrawn GRAS affirmation petition into a GRAS notice, and if so, if any requirements of the GRAS notification procedure should be waived.
We also note that, as discussed in the experience document (Ref. 1), during the interim period we processed a pending petition as a food additive petition and issued a food additive regulation for the petitioned substance ( 21 CFR 172.780 ; 70 FR 8032 , February 17, 2005). We note that CVM has no pending GRAS petitions and thus, this discussion is not applicable to GRAS affirmation petitions for food for animals.
III. Costs and Benefits ?
FDA requests comments on how the issues discussed in this document could affect the costs and benefits estimated in the 1997 proposed rule, e.g., whether these issues would result in costs or benefits that would be either greater than, or less than, those estimated in the 1997 proposed rule ( 62 FR 18938 at 18958).
IV. Paperwork Reduction Act of 1995 ?
The 1997 proposed rule contains information collection provisions that are subject to review by the Office of Management and Budget under the Paperwork Reduction Act of 1995 ( 44 U.S.C. 3501 -3520). Interested persons are requested to send comments regarding information collection to FDA ( see DATES and ADDRESSES ).
V. Comments ?
Interested persons may submit to the Division of Dockets Management ( see ADDRESSES ) either electronic or written comments regarding this document. It is only necessary to send one set of comments. It is no longer necessary to send two copies of mailed comments. Identify comments with the docket number found in brackets in the heading of this document. Received comments may be seen in the Division of Dockets Management between 9 a.m. and 4 p.m., Monday through Friday.
VI. References ?
We have placed the following references on display in the Division of Dockets Management ( see ADDRESSES ). You may see them between 9 a.m. and 4 p.m., Monday through Friday. (FDA has verified the Web site addresses, but FDA is not responsible for any subsequent changes to Web sites after this document publishes in the Federal Register. )
1. Experience With GRAS Notices Under the 1997 Proposed Rule, Memorandum Dated November 4, 2010, from Linda S. Kahl of FDA to Docket No. FDA-1997-N-0020.
2. United States Government Accountability Office, Report to Congressional Requestors on Food Safety: FDA Should Strengthen Its Oversight of Food Ingredients Determined To Be Generally Recognized as Safe (GRAS), Report No. GAO-10-246, February 2010, Accessible at http://www.gao.gov/new.items/d10246.pdf , Accessed and printed on May 3, 2010.
3. Memorandum for the Heads of Executive Departments and Agencies, Dated June 1, 1998, Signed by President William J. Clinton, Accessible at http://www.plainlanguage.gov/whatisPL/govmandates/memo.cfm , Accessed and printed on July 14, 2008.
4. FDA Form No. 3480, Notification for New Use of a Food Contact Substance, Accessible at http://www.fda.gov/downloads/AboutFDA/ReportsManualsForms/Forms/ucm076880.pdf , Accessed and printed on October 13, 2010.
5. FDA, 2007, Nanotechnology Task Force Report 2007, Accessible at http://www.fda.gov/ScienceResearch/SpecialTopics/Nanotechnology/NanotechnologyTaskForceReport2007/default.htm , Accessed and printed on October 13, 2010.
6. Guidance for Industry: Frequently Asked Questions About GRAS, Accessible at http://www.fda.gov/Food/GuidanceComplianceRegulatoryInformation/GuidanceDocuments/FoodIngredientsandPackaging/ucm061846.htm , Accessed and printed on October 13, 2010.
Dated: December 17, 2010. Leslie Kux,
Acting Assistant Commissioner for Policy.
Footnotes ?
1 . As an error, the authority citation we listed for the proposed amendments to part 570 (21 CFR part 570) did not include an existing authority citation, i.e., section 408 of the Federal Food, Drug, and Cosmetic Act (the FD&C Act) ( 21 U.S.C. 346 a). Nothing in the 1997 proposed rule would alter the citation to section 408. Therefore, the authority citation for part 570 will continue to include section 408.
2 . With regard to GAO's recommendations, we are requesting comment on the recommendations that FDA obtain more information about the use of engineered nanomaterials (Issue 10(c)), that FDA strive to minimize the potential for conflict of interest (Issue 15), and that FDA issue guidance on how to document GRAS determinations (Issue 16). GAO also recommended that FDA develop a strategy to finalize the proposal to establish a notification program for GRAS ingredients, and this notice reopening the comment period is the first step of such a strategy. FDA is not seeking comment on the remaining GAO recommendations, that FDA request that any company conducting a GRAS determination provide the Agency with basic information about that determination, and that FDA develop a strategy to reconsider the safety of certain GRAS substances. We consider those recommendations, and any comments on them, to be beyond the scope of this comment request because they raise issues about matters other than how a notification program should be run.
3 . After we issued the 1997 proposed rule, a Presidential Memorandum dated June 1, 1998 (the Plain Language Memorandum) (Ref. 3) prescribed a government-wide initiative (the Plain Language Initiative, or “PLI”) to write regulations using “Plain Language.” As outlined in that memorandum, documents written in plain language use “you” and other pronouns. Any final rule based on the 1997 proposed rule and this document would use such pronouns.
4 . For example, a notifier may have a question about the common or usual name where it is not established by regulation.
5 . In this document, references to “consumers” for the purposes of part 170 are references to “animals” for the purposes of part 570.
6 . Proposed § 170.36(g)(3)(iii) stated that we would inform a petitioner who did not submit a conversion amendment that the notice was inadequate within 90 days of publication of the final rule, rather than within 90 days of the effective date of the final rule. This was an error.
References
- Active
- http://www.fda.gov/downloads/AboutFDA/ReportsManualsForms/Forms/ucm076880.pdf
- http://www.fda.gov/Food/GuidanceComplianceRegulatoryInformation/GuidanceDocuments/FoodIngredientsandPackaging/ucm061846.htm
- http://www.fda.gov/ScienceResearch/SpecialTopics/Nanotechnology/NanotechnologyTaskForceReport2007/default.htm
- http://www.gao.gov/new.items/d10246.pdf
- http://www.plainlanguage.gov/whatisPL/govmandates/memo.cfm
- http://www.regulations.gov
EarthTalk: Is the Toxic Substances act going to be updated?
By E/THE ENVIRONMENTAL MAGAZINE
Emagazine.com
Dear EarthTalk: What is happening to update and reform the Toxic Substances Control Act of 1976, which I understand is considerably outdated and actually permits the use of thousands of chemicals that have never been adequately tested for safety?
- Henry Huse, Norwalk, Conn.
According to the Natural Resources Defense Council (NRDC), a leading environmental research and advocacy organization, upwards of 80,000 chemicals commonly used in the United States have never been fully assessed for toxic impacts on human health and the environment. "Under the current law, it is almost impossible for the EPA (U.S. Environmental Protection Agency) to take regulatory action against dangerous chemicals, even those that are known to cause cancer or other serious health effects," reports the group.
1976's Toxic Substances Control Act (TSCA) was intended to protect people and the environment from exposure to dangerous chemicals. But the standards at that time dictated that only those chemicals deemed an "unreasonable risk" were subject to testing and regulation. When the law went into effect, some 62,000 chemicals escaped testing and most have remained on the market ever since. In the interim, however, we have learned that many of them have been linked to hormonal, reproductive and immune problems, cancer, and a plethora of environmental problems.
And since 1976, an additional 22,000 chemicals have been introduced without any testing for public or environmental safety. Some of the potentially worst offenders can be found in cleaning and personal care products, furniture, building materials, electronics, food and drink containers, and even kids' toys.
"The law is widely considered to be a failure and, most recently, the Environmental Protection Agency's own Inspector General found it inadequate to ensure that new chemicals are safe," reports NRDC, which is not the only group concerned about beefing up TSCA. The Safer Chemicals, Healthy Families Coalition includes more than 200 nonprofits - including Physicians for Social Responsibility, the U.S. Public Interest Research Group (USPIRG), the Environmental Defense Fund and the Lung Cancer Alliance, among many others - representing a collective membership of more than 11 million individual parents, health professionals, advocates for people with learning and developmental disabilities, reproductive health advocates, environmentalists and businesspersons from across the country.
By banding together, coalition leaders hope to convince Congress to fix the problem by finally updating TSCA and creating the "foundation for a sound and comprehensive chemicals policy that protects public health and the environment, while restoring the luster of safety to U.S. goods in the world market."
Specifically, the coalition is lobbying Congress to revamp TSCA so that the most dangerous chemicals are phased out or banned outright and that others are tested and regulated accordingly, all the while ensuring the public's right-to-know about the safety and use of chemicals in everyday products. Also, the coalition is calling for federal funding to expand research into greener alternative chemicals to replace those with known health hazards.
CONTACTS: NRDC, www.nrdc.org, EPA Summary of TSCA, www.epa.gov/lawsregs/laws/tsca.html; Safer Chemicals, Healthy Families Coalition, www.saferchemicals.org.
Read more: http://www.miamiherald.com/2011/01/03/1998201/earthtalk-is-the-toxic-substances.html#ixzz19zjjzdzv
IMPERIAL SET TO BUY STAUFFER
By JONATHAN P. HICKS
Published: June 06, 1987
Cum homine de cane debeo congredi - [qui tam] - Excuse me. I've got to see a man about a dog -[ a private individual, or " whistleblower ,"]
Bella detesta matribus - Wars, the horror of mothers. (Horace)
Bella gerant alii - Let others wage war
Bellum omium contra omnes - Everyman's struggle against everyman. (Thomas Hobbes)
Belua multorum es capitum - The people are a many-headed beast
Bene legere saecla vincere - To read well is to master the ages. (Professor Isaac Flagg)
Bene qui latuit, bene vixit - One who lives well, lives unnoticed. (Ovid)
Bene, cum Latine nescias, nolo manus meas in te maculare - Well, if you don't understand plain Latin, I'm not going to dirty my hands on you
Bene - Good
Beneficium accipere libertatem est vendere - To accept a favour is to sell freedom. (Publilius Syrus)
Bibere venenum in auro - Drink poison from a cup of gold
The United States Constitution Post 2: The Bill of Rights
When the Constitutional Convention closed, the signers of the new Constitution returned to their states and began campaigning for the acceptance of a new, stronger, more centralized government. The active supporters for the new constitution came to be called Federalists. Three of them, John Jay, Alexander Hamilton and James Madison, published articles in local newspapers across the thirteen states; the essays carefully arguing for a new federal government were later called the Federalist papers. Opposition was very strong. The Americans had fought through the long revolution, lived through the painful recovering from a destructive war and were building a new economy; they did not want a strong, centralized government because they embraced self-government and hated dictatorial kings and tyrannical parliaments. The Federalists had to persuade the Americans that the new government would not diminish the sovereignty of the states and civil liberty would be fully protected. In each of the state conventions called to ratify or not to ratify the new Constitution, supporters promised a bill of rights added to the new constitution. New York was the required 11 th state to ratify the Constitution in July of 1788 and national elections were held in January of 1789. The new congress wrote the ten promised amendments to the Constitution in the same year. The original delegates had thought deeply about protecting civil liberties and had written fundamentals into the original body of the Constitution. They believed in natural rights, those called “unalienable Rights” granted to mankind by the Creator as stated in the Declaration of Independence (as elaborated by John Locke at an earlier time). The “the rights of Englishmen” are to be found in English law since the Magna Carta had been promulgated in 1215. This blocking of absolute rule was part of the very fabric of the delegates' beings. The unwritten English constitution, the common law and the forbidden of absolutism in central government had come to these shores with the colonists from the beginning. The formal establishment of “the rights of Englishmen” in the colonies had occurred with the creation of the Virginia House of Burgesses in 1619, continuing their protection against tyranny. More than anything else, their self-governance had set them apart from their Spanish and French neighboring colonists. By the time of the Revolution, the English colonists had outstripped all of their neighbors in population and wealth. Even so, some of the revolutionist generation were not confident that there were sufficient protections against tyranny in the Constitution, and the Bill of Rights was the consequence. Echoes of the Magna Carta and the “rights of Englishmen” over time are in the First Amendment, guaranteeing the freedom of religion, speech, the press and peaceable assembly and the right to petition. Reflections of relatively recent events to the founding generation can be seen in the Second Amendment. It guarantees the right to self-defense, the population keenly aware of the English government's establishment of a permanent army and the occupying army's mission to take arms, the freed Americans would never allow any government to disarm them. The Fifth Amendment protects the individual's right to property. The next three amendments are concerned with due process of law, as is the Fifth---the right to know what you are charged with, jury trials where you can answer charges, reasonable bail and protection from cruel and unusual punishments. The Ninth Amendment repeats and underlines the consensus that our rights are NOT limited to those protected by the Constitution; rights that are not written about or unnamed in the Constitution remain as real and as important as any of them mentioned or named in the Constitution. The Tenth Amendment, then, repeats, underlines and clearly restates the fact that powers not delegated to the United States nor prohibited to the states are reserved to the states or to the people. “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.” The Tenth Amendment is Federalism; it is our final hope to save the American Republic. Federalism means that an individual lives under two systems of laws and two governmental structures. Each of us is a citizen of a state and of the United States. In federal, that is, in matters that are beyond intrastate matters, like interstate commerce and national defense and foreign trade and foreign treaties, federal law will prevail. Otherwise, intrastate laws govern our daily lives, as in the original Constitution. The founders of the Republic, including the majority of colonists who accepted this Constitution, took it granted that the Constitution limits government power and the local, that is, the states, would retain more governmental power than the created federal government had or would have. The Bill of Rights was intended to reassure the people that they and their states will not lose their freedom to the stronger, nationalized government created by this Constitution.
In Federalist #45, James Madison, the “father of the Constitution”, writes this:
“The powers delegated by the proposed Constitution to the federal government, are few and defined. Those which are to remain in the State governments are numerous and indefinite. The former will be exercised principally on external objects, as war, peace, negotiation, and foreign commerce, with which last the power of taxation will for the most part be connected. The powers reserved to the several States will extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people, and the internal order, improvement, and prosperity of the State.”
His purpose in #45 is to explain that “(t)he State government will have the advantage (over) the Federal government.” Unfortunately, the states' advantage over the Feds has been eroded through ceaseless overreaching by the central government for the last hundred years, and we are at the crisis point. I want to look at the encroaching on our self-governance and civil liberties over the past hundred years in Constitution Post 3 that I will try to post tomorrow. I will draw on a resource available at the website for The Texas Public Policy Foundation, www.texaspolicy.com , a think tank that I strongly urge you to support.
Pam FowlerThe Federalist No. 35
Concerning the General Power of Taxation (continued)
Independent Journal
Saturday, January 5, 1788
[Alexander Hamilton]
To the People of the State of New York:BEFORE we proceed to examine any other objections to an indefinite power of taxation in the Union, I shall make one general remark; which is, that if the jurisdiction of the national government, in the article of revenue, should be restricted to particular objects, it would naturally occasion an undue proportion of the public burdens to fall upon those objects. Two evils would spring from this source: the oppression of particular branches of industry; and an unequal distribution of the taxes, as well among the several States as among the citizens of the same State.
Suppose, as has been contended for, the federal power of taxation were to be confined to duties on imports, it is evident that the government, for want of being able to command other resources, would frequently be tempted to extend these duties to an injurious excess. There are persons who imagine that they can never be carried to too great a length; since the higher they are, the more it is alleged they will tend to discourage an extravagant consumption, to produce a favorable balance of trade, and to promote domestic manufactures. But all extremes are pernicious in various ways. Exorbitant duties on imported articles would beget a general spirit of smuggling; which is always prejudicial to the fair trader, and eventually to the revenue itself: they tend to render other classes of the community tributary, in an improper degree, to the manufacturing classes, to whom they give a premature monopoly of the markets; they sometimes force industry out of its more natural channels into others in which it flows with less advantage; and in the last place, they oppress the merchant, who is often obliged to pay them himself without any retribution from the consumer. When the demand is equal to the quantity of goods at market, the consumer generally pays the duty; but when the markets happen to be overstocked, a great proportion falls upon the merchant, and sometimes not only exhausts his profits, but breaks in upon his capital. I am apt to think that a division of the duty, between the seller and the buyer, more often happens than is commonly imagined. It is not always possible to raise the price of a commodity in exact proportion to every additional imposition laid upon it. The merchant, especially in a country of small commercial capital, is often under a necessity of keeping prices down in order to a more expeditious sale.
The maxim that the consumer is the payer, is so much oftener true than the reverse of the proposition, that it is far more equitable that the duties on imports should go into a common stock, than that they should redound to the exclusive benefit of the importing States. But it is not so generally true as to render it equitable, that those duties should form the only national fund. When they are paid by the merchant they operate as an additional tax upon the importing State, whose citizens pay their proportion of them in the character of consumers. In this view they are productive of inequality among the States; which inequality would be increased with the increased extent of the duties. The confinement of the national revenues to this species of imposts would be attended with inequality, from a different cause, between the manufacturing and the non-manufacturing States. The States which can go farthest towards the supply of their own wants, by their own manufactures, will not, according to their numbers or wealth, consume so great a proportion of imported articles as those States which are not in the same favorable situation. They would not, therefore, in this mode alone contribute to the public treasury in a ratio to their abilities. To make them do this it is necessary that recourse be had to excises, the proper objects of which are particular kinds of manufactures. New York is more deeply interested in these considerations than such of her citizens as contend for limiting the power of the Union to external taxation may be aware of. New York is an importing State, and is not likely speedily to be, to any great extent, a manufacturing State. She would, of course, suffer in a double light from restraining the jurisdiction of the Union to commercial imposts.
So far as these observations tend to inculcate a danger of the import duties being extended to an injurious extreme it may be observed, conformably to a remark made in another part of these papers, that the interest of the revenue itself would be a sufficient guard against such an extreme. I readily admit that this would be the case, as long as other resources were open; but if the avenues to them were closed, HOPE, stimulated by necessity, would beget experiments, fortified by rigorous precautions and additional penalties, which, for a time, would have the intended effect, till there had been leisure to contrive expedients to elude these new precautions. The first success would be apt to inspire false opinions, which it might require a long course of subsequent experience to correct. Necessity, especially in politics, often occasions false hopes, false reasonings, and a system of measures correspondingly erroneous. But even if this supposed excess should not be a consequence of the limitation of the federal power of taxation, the inequalities spoken of would still ensue, though not in the same degree, from the other causes that have been noticed. Let us now return to the examination of objections.
One which, if we may judge from the frequency of its repetition, seems most to be relied on, is, that the House of Representatives is not sufficiently numerous for the reception of all the different classes of citizens, in order to combine the interests and feelings of every part of the community, and to produce a due sympathy between the representative body and its constituents. This argument presents itself under a very specious and seducing form; and is well calculated to lay hold of the prejudices of those to whom it is addressed. But when we come to dissect it with attention, it will appear to be made up of nothing but fair-sounding words. The object it seems to aim at is, in the first place, impracticable, and in the sense in which it is contended for, is unnecessary. I reserve for another place the discussion of the question which relates to the sufficiency of the representative body in respect to numbers, and shall content myself with examining here the particular use which has been made of a contrary supposition, in reference to the immediate subject of our inquiries.
The idea of an actual representation of all classes of the people, by persons of each class, is altogether visionary. Unless it were expressly provided in the Constitution, that each different occupation should send one or more members, the thing would never take place in practice. Mechanics and manufacturers will always be inclined, with few exceptions, to give their votes to merchants, in preference to persons of their own professions or trades. Those discerning citizens are well aware that the mechanic and manufacturing arts furnish the materials of mercantile enterprise and industry. Many of them, indeed, are immediately connected with the operations of commerce. They know that the merchant is their natural patron and friend; and they are aware, that however great the confidence they may justly feel in their own good sense, their interests can be more effectually promoted by the merchant than by themselves. They are sensible that their habits in life have not been such as to give them those acquired endowments, without which, in a deliberative assembly, the greatest natural abilities are for the most part useless; and that the influence and weight, and superior acquirements of the merchants render them more equal to a contest with any spirit which might happen to infuse itself into the public councils, unfriendly to the manufacturing and trading interests. These considerations, and many others that might be mentioned prove, and experience confirms it, that artisans and manufacturers will commonly be disposed to bestow their votes upon merchants and those whom they recommend. We must therefore consider merchants as the natural representatives of all these classes of the community.
With regard to the learned professions, little need be observed; they truly form no distinct interest in society, and according to their situation and talents, will be indiscriminately the objects of the confidence and choice of each other, and of other parts of the community.
Nothing remains but the landed interest; and this, in a political view, and particularly in relation to taxes, I take to be perfectly united, from the wealthiest landlord down to the poorest tenant. No tax can be laid on land which will not affect the proprietor of millions of acres as well as the proprietor of a single acre. Every landholder will therefore have a common interest to keep the taxes on land as low as possible; and common interest may always be reckoned upon as the surest bond of sympathy. But if we even could suppose a distinction of interest between the opulent landholder and the middling farmer, what reason is there to conclude, that the first would stand a better chance of being deputed to the national legislature than the last? If we take fact as our guide, and look into our own senate and assembly, we shall find that moderate proprietors of land prevail in both; nor is this less the case in the senate, which consists of a smaller number, than in the assembly, which is composed of a greater number. Where the qualifications of the electors are the same, whether they have to choose a small or a large number, their votes will fall upon those in whom they have most confidence; whether these happen to be men of large fortunes, or of moderate property, or of no property at all.
It is said to be necessary, that all classes of citizens should have some of their own number in the representative body, in order that their feelings and interests may be the better understood and attended to. But we have seen that this will never happen under any arrangement that leaves the votes of the people free. Where this is the case, the representative body, with too few exceptions to have any influence on the spirit of the government, will be composed of landholders, merchants, and men of the learned professions. But where is the danger that the interests and feelings of the different classes of citizens will not be understood or attended to by these three descriptions of men? Will not the landholder know and feel whatever will promote or insure the interest of landed property? And will he not, from his own interest in that species of property, be sufficiently prone to resist every attempt to prejudice or encumber it? Will not the merchant understand and be disposed to cultivate, as far as may be proper, the interests of the mechanic and manufacturing arts, to which his commerce is so nearly allied? Will not the man of the learned profession, who will feel a neutrality to the rivalships between the different branches of industry, be likely to prove an impartial arbiter between them, ready to promote either, so far as it shall appear to him conducive to the general interests of the society?
If we take into the account the momentary humors or dispositions which may happen to prevail in particular parts of the society, and to which a wise administration will never be inattentive, is the man whose situation leads to extensive inquiry and information less likely to be a competent judge of their nature, extent, and foundation than one whose observation does not travel beyond the circle of his neighbors and acquaintances? Is it not natural that a man who is a candidate for the favor of the people, and who is dependent on the suffrages of his fellow-citizens for the continuance of his public honors, should take care to inform himself of their dispositions and inclinations, and should be willing to allow them their proper degree of influence upon his conduct? This dependence, and the necessity of being bound himself, and his posterity, by the laws to which he gives his assent, are the true, and they are the strong chords of sympathy between the representative and the constituent.
There is no part of the administration of government that requires extensive information and a thorough knowledge of the principles of political economy, so much as the business of taxation. The man who understands those principles best will be least likely to resort to oppressive expedients, or sacrifice any particular class of citizens to the procurement of revenue. It might be demonstrated that the most productive system of finance will always be the least burdensome. There can be no doubt that in order to a judicious exercise of the power of taxation, it is necessary that the person in whose hands it should be acquainted with the general genius, habits, and modes of thinking of the people at large, and with the resources of the country. And this is all that can be reasonably meant by a knowledge of the interests and feelings of the people. In any other sense the proposition has either no meaning, or an absurd one. And in that sense let every considerate citizen judge for himself where the requisite qualification is most likely to be found.
PUBLIUS
http://www.constitution.org/fed/federa35.htm
President Obama sidestepped Senate Republicans Wednesday and appointed an independent consultant to the bailed-out American International Group as deputy attorney general.
Mr. Obama, vacationing in Hawaii with his family, appointed James Cole and five other officials, mostly ambassadors to foreign nations, using his authority to do so while the Senate is in recess.
Cole was nominated during the spring for the No. 2 post at Justice, but Alabama Sen. Jeff Sessions, the ranking Republican on the Judiciary Committee, opposed the nomination.
Cole's nomination came up in talks between Senate Majority Leader Harry Reid and Minority Leader Mitch McConnell during the closing days of the lame-duck Congress last week, when Republicans agreed to let at least 19 non-controversial judicial nominees win confirmation. Democrats will have a smaller majority when the new Senate meets next week.
Cole worked as an independent consultant for AIG before its collapse in 2008. Senate Republicans complained that confidentiality agreements blocked them from getting answers about what Cole did for the company, The Associated Press reported.
Cole won't be a stranger at Justice. The White House said he worked there for 13 years, including working as deputy chief of the department's Public Integrity Section, before entering private practice in 1992.
His appointment will last through the end of 2011, when the new Congress finishes the first half of its term.
Mr. Obama's other appointments Wednesday were:
- William Boarman as public printer of the United States
- Matthew Bryza as ambassador to Azerbaijan
- Norman Eisen as ambassador to the Czech Republic
- Robert Stephen Ford as ambassador to Syria
- Francis Ricciardone Jr. as ambassador to Turkey
Read more: The Federalist No. 35 | Lake Minnetonka LibertyJust how did we get to where we are when Justice Horace Gray even goes as far as to contradict himself when, after he quotes passages from the debates to support his position, he writes that "[T]he debates in Congress are not admissible as evidence to control the meaning of those words. But the statements above quoted are valuable as contemporaneous opinions of jurists and statesmen upon the legal meaning of the words themselves" .
So let us first take a look at what other members of Congress said in regards to what "subject to the jurisdiction thereof" meant.
Senator Jacob Howard was pretty clear
This amendment which I have offered is simply declaratory of what I regard as the law of the land already, that every person born within the limits of the United States, and subject to their jurisdiction, is by virtue of natural law and national law a citizen of the United States. This will not, of course, include persons born in the United States who are foreigners, aliens who belong to the families of ambassadors or foreign ministers accredited to the Government of the United States, but will include every other class of persons. It settles the great question of citizenship and removes all doubt as to what persons are or are not citizens of the United States. This has long been a great desideratum in the jurisprudence and legislation of this country.
-Congressional Globe, Senate, 39th Congress, 1st Session Page 2890 As was Senator Lyman Trumbull
The provision is, that "all persons born in the United States, and subject to the jurisdiction thereof, are citizens." That means "subject to the complete jurisdiction thereof."... What do we mean by "complete jurisdiction thereof?" Not owing allegiance to anybody else. That is what it means.
-Congressional Globe, Senate, 39th Congress, 1st Session Page 2893 Senator Howard later agreed with Senator Trumbull's definition of the word.
I concur entirely with the honorable Senator from Illinois, in holding that the word "jurisdiction," as here employed, ought to be construed so as to imply a full and complete jurisdiction on the part of the United States, whether exercised by Congress, by the executive, or by the judicial department; that is to say, the same jurisdiction in extent and quality as applies to every citizen of the United States now.
-Congressional Globe, Senate, 39th Congress, 1st Session Page 2895 To further support the contention that Justice Gray got it wrong, Congress, on April 9, 1866, passed a law which established "That all persons born in the United States, and not subject to any foreign power, excluding Indians not taxed are hereby declared to be citizens of the United States;" (39th Congress, Session 1, Chapter 31) which later became Section 1992 of the US Revised Statutes in 1873. Now you argue that by choosing different language for the 14th Amendment, Congress changed it's mind but remember, this law was passed only a month after the amendment was proposed and Representative John Bingham, who co-wrote the citizenship clause said this regarding chapter 31 in the debate.
I find no fault with the introductory clause, which is simply declaratory of what is written in the Constitution, that every human being born within the jurisdiction of the United States of parents not owing allegiance to any foreign sovereignty is, in the language of your Constitution itself, a natural born citizen.
-Congressional Globe, House of Representatives, 39th Congress, 1st Session Page 1291 So we have here the Congressional record that clarifies "subject to the jurisdiction thereof", now can we find any other reference by the government as to what it means? Well in 1873 the US Attorney General George Henry Williams issued this opinion concerning the 14th Amendment which according to the current DOJ website, "Under the Judiciary Act of 1789, the Attorney General was authorized to render opinions on questions of law when requested by the President and the heads of Executive Branch departments."
"The word 'jurisdiction' must be understood to mean absolute and complete jurisdiction, such as the United States had over its citizens before the adoption of this amendment. Aliens, among whom are persons born here and naturalized abroad, dwelling or being in this country, are subject to the jurisdiction of the United States only to a limited extent. Political and military rights and duties do not pertain to them."
-14 U.S. Attorney General Opinions 300 Interestingly enough Justice Gray uses the previous opinions of Attorney Generals to support his opinion while omitting one that came just a year before Elk v. Wilkins where he himself also wrote similar words in the majority opinion,
The persons declared to be citizens are "all persons born or naturalized in the United States, and subject to the jurisdiction thereof." The evident meaning of these last words is not merely subject in some respect or degree to the jurisdiction of the United States, but completely subject to their political jurisdiction and owing them direct and immediate allegiance. And the words relate to the time of birth in the one case, as they do to the time of naturalization in the other. Persons not thus subject to the jurisdiction of the United States at the time of birth cannot become so afterwards except by being naturalized, either individually, as by proceedings under the naturalization acts, or collectively, as by the force of a treaty by which foreign territory is acquired. With the history lesson being over on what the intent of just what was meant by "subject to the jurisdiction thereof" you have to ask yourself, how did Justice Gray arrive at this opinion in US v Wong Kim Ark just 14 years later, and especially after citing Elk?
The foregoing considerations and authorities irresistibly lead us to these conclusions: the Fourteenth Amendment affirms the ancient and fundamental rule of citizenship by birth within the territory, in the allegiance and under the protection of the country, including all children here born of resident aliens, with the exceptions or qualifications (as old as the rule itself) of children of foreign sovereigns or their ministers, or born on foreign public ships, or of enemies within and during a hostile occupation of part of our territory, and with the single additional exception of children of members of the Indian tribes owing direct allegiance to their several tribes. The Amendment, in clear words and in manifest intent, includes the children born, within the territory of the United States, of all other persons, of whatever race or color, domiciled within the United States. Every citizen or subject of another country, while domiciled here, is within the allegiance and the protection, and consequently subject to the jurisdiction, of the United States. His allegiance to the United States is direct and immediate , and, although but local and temporary, continuing only so long as he remains within our territory... It can hardly be denied that an alien is completely subject to the political jurisdiction of the country in which he resides. What is presented as the opinion in Kim Ark is a pretty ironclad case for birthright citizenship regardless of the legal status of the parents. This is further cemented by a little nugget from Justice William Brennan in Plyler v Doe and makes it impossible to get around without an amendment or a SCOTUS ruling that settles the question once and for all.
"[B]y principles of sovereignty and allegiance, no plausible distinction with respect to Fourteenth Amendment "jurisdiction" can be drawn between resident aliens whose entry into the United States was lawful, and resident aliens whose entry was unlawful."“Operation Broken Trust” Moves Forward Even As Feds Lose Case in Florida
Dec. 26 2010 - 9:15 pm
I, like others, have cited that the feds lose cases only rarely. Some sources estimate a fed conviction rate of over 95%. Well lightening struck in a Florida federal court last week and the home team lost one. In a trial that lasted six (6) days, real estate developer Glenn Straub and his company Palm Polo Holdings, Inc, were found not guilty on violations of the Clean Water Act.
It seems Mr. Straub had engaged a contractor to remove Melaleuca trees and Brazilian Pepper trees from two of his properties under development. While the State of Florida recognizes these plants as invasive and having a negative impact on wetlands, the feds saw it as a violation of the Clean Water Act, 33 USC 1319. The case was brought in the Southern District of Florida (guess there must be a shortage of white-collar crime and drug cases in the Miami area these days). Had Straub been found guilty, the violation could have resulted in both fines and imprisonment.
What is rare is that the government lost a case, which is why I bring it to the attention of Forbes readers. What is worth noting also is that this loss is NOT worth noting at all. When are we going to see more prosecution of those individuals responsible for the losses at our financial institutions over the past 3 years. Operation Broken Trust, announced by U.S. attorney general Eric Holder earlier this month, was supposed to be part of a larger crackdown on white-collar crime. However, criticism about the lack of big names in that offensive has been noted throughout the media. This week, Andrew Cuomo New York's attorney general, even took on Ernst & Young for its role in the downfall of Lehman Brothers. I did not see Richard Fuld's (former Lehman Chairman & CEO) name on any indictment, federal or state.
On another note, the feds did win one in New York last week. Former Army Captain Bryant Williams was found guilty of an Honest Services fraud ( see Jeff Skilling appeal ) for taking bribes in his role as a procurement officer for the 101 st Airborne while stationed in Iraq. Let's hope this one holds up.
What's in a name? ‘Mountaintop removal' vs. ‘mountaintop development'
Coal operators, environmentalists ponder rebranding
By Taylor Kuykendall Register-Herald Reporter The Register-Herald Mon Dec 27, 2010, 12:03 AM EST
BECKLEY — Coal operators and environmentalists have been pondering the value of a name since the revelation that the coal industry may push for “rebranding” surface mining as “mountaintop development” instead of “mountaintop removal.”
The process of blasting the top of a mountain to obtain its underground coal reserves instead of digging a mine has been a much easier target for environmentalists since it has become known as mountaintop removal. However, coal industry executives say the term “mountaintop development” would paint a more accurate picture of the practice.
“In my mind, mountaintop ‘removal' implies the site is mined and then left barren, lifeless and flattened. This couldn't be further from the truth,” said Chris Hamilton of the West Virginia Coal Association.
He points to the mining permit requirement that forces miners to restore the mines to their approximate original contour or to configure the land for an “alternate use.”
Restoring the land occurs in about 90 percent to 95 percent of former surface mines, Hamilton said.
“We rebuild the mountain peak, resculpting it to approximately as close as possible to the original premining topography of the land, then we reseed it with grasses and trees,” Hamilton said. “We also rebuild the drainage channels, putting in sediment and erosion-control structures to prevent potential downstream impacts.”
One example of land that was developed for alternative use, Hamilton said, is a 900-acre plot in Mingo County donated for use as a regional airport. Cooperation of local officials, he said, has allowed coal companies to be a part of community development, postmining.
“Mingo County is doing some marvelous things through their Mingo County Redevelopment Authority,” Hamilton said. “This organization is partnering with the coal industry to include surface mining in its county master land use plan and to enlist the coal industry as an active partner in the process of building a new, diversified, sustainable economy for the region. This should be the model for the entire state, and we believe it is becoming so.”
He said across West Virginia, the benefits of redeveloped surface mine lands are apparent.
“Every day, you see news of this or that site, often it goes unnoticed that it was a former mine site, but the reality is that we have many former surface mine sites around the state already being used for economic development. The FBI Center in Bridgeport, with 3,000 jobs, spun off an entire technology corridor in Fairmont and Clarksburg,” Hamilton said. “In Wheeling, there is the Cabela's Shopping Center and basically 80 percent of the town of Weirton is on former surface mine lands, including the city hospital.”
Hamilton said West Virginia's natural contours are not necessarily the best for land development, and the cost of reshaping that land for development makes many potential sites cost-prohibitive.
“Southern West Virginia, in fact most of West Virginia, can be characterized like this: a valley floor between 100 feet and a half-mile wide, with a road, a river and a railroad running through it,” Hamilton explained. “On either side of the valley are mountains with slopes approaching 60 degrees. The valley floor is mostly taken up by the road, river (or stream) and railroad, and what little land remains is usually on the 20-year floodplain. Clearly, there is little readily developable land available for economic development or community development, recreational development or housing.”
The only solution, Hamilton points out, is build something on the floodplain and endangering the structure, carving a notch in the mountainside or paying for the access, utilities and site preparation to build directly on the mountaintop.
Coal operators can become a valuable partner in developing land for use, and could take the burden to do so off the taxpayer, Hamilton said.
“Frankly, I see a very symbiotic relationship — bringing together the coal industry, which is willing to move the earth to get at the resource it needs, and the economic/community development team that needs the site prepared for downstream development,” Hamilton said. “Would I like to see more done with these sites? Absolutely, but the coal industry is responsible to its stockholders to mine coal. We can be an incredible resource in the effort to build a new, sustainable economy for our region, but we cannot lead that effort.”
According to a West Virginia Public Broadcasting story, the term “mountaintop development” caught the eye of West Virginia coal industry executives when Tyler Phipps, a junior at the University of Kentucky, submitted a letter to the school's newspaper in which he suggested the term as a more accurate description of the mining practice.
However, Vivian Stockman, an organizer for the Ohio Valley Environmental Coalition, told West Virginia Public Broadcasting that a flyover of the southern West Virginia coalfields suggests little development on former surface mine sites.
“If they're hoping to, you know, create shopping malls on some of these, I don't know where they're going to get all the shoppers,” she said. “All the communities around these areas have been driven away.”
She added that the notion that West Virginia needs more flat land is a myth.
“Back in 2002 we had some volunteers create some maps for us,” she said. “There were just massive amounts of land that are not, in any way, shape or form, developed.”
Researchers from the Natural Resources Defense Council found that about 1.2 million acres and about 500 mountains were flattened by surface mining in central Appalachia. An aerial imagery analysis by NRDC found that about 90 percent of mountaintop removal sites were not converted to economic uses. Only about 4 percent of West Virginia and Kentucky mountaintops had been redeveloped, NRDC found.
“We watch our Appalachian communities being destroyed every day with the false promise of reclamation,” Lorelei Scarbro, with Coal River Mountain Watch, told NRDC. “We, the citizens living at ground zero, are losing our way of life and our history with every mountain they take. I am heartbroken to think what my grandchildren will have left when they grow up if we don't stop this rogue mining.”
While many cite grim imagery in the southern coalfields, Hamilton says surface mining is not as prevalent as a lot of numbers would suggest on first glance.
“I love mountains as well,” Hamilton said. “And I would point out that only 1 percent of the surface area of our state has been touched by surface mining. Some opponents of coal are prone to exaggeration...”
Hamilton acknowledges that not every site is located in an area where population is dense enough to sustain long-term development. However, there are some valuable uses for the land, he said.
“Is it feasible to expect Toyota or Ford to build an auto plant on top of every mountain in southern West Virginia? Can we put an industrial park on each one and expect it to thrive? Of course not,” Hamilton said. “No one is suggesting that.”
He said he would suggest that the sites be developed into things like recreational facilities such as the YMCA Soccer Complex in Beckley or in Morgantown at Mylan Park. He said homes and communities could be built outside floodplains to provide safe, modern housing, schools and hospitals, shopping centers, airports and industrial parks.
A survey of the West Virginia Department of Commerce found that 13,000 jobs were created on 43 former surface mining sites in 12 counties.
“With some areas of our state having little flat land for development, the use of surface-mined lands has been critically important to providing land for new industry and facilities for use by the general public,” Division of Energy Director Jeff Herholdt said. “In addition to the flat land, many projects are able to take advantage of infrastructure, roads, and electric service used during coal mining.”
The release pointed to the FBI Complex, Weirton Medical Center and the home of the new National Boy Scout Jamboree in Fayette County as successful post-mining land development.
Ken Ward, the author of the Charleston Gazette blog “Coal Tattoo,” points out a few problems with the report.
Ward wrote that about 42 percent of the jobs are seasonal, part-time, or temporary construction work. Two-thirds of the sites are outside southern West Virginia, and the FBI Center accounts for about a third of the jobs touted in the release.
“And some of these sites apparently involved little coal mining at all — only removal of coal that was ‘incidental' to the development and did not require a mining permit,” Ward wrote. “Others were mined and fully reclaimed, and development projects came much later and independently of the mining.”
Further, Ward writes, much of the information on the past of these sites is not well-documented by the Commerce Department.
“To be clear about this, post-mining development of these sites isn't supposed to be something that happens much later than mining,” Ward wrote. “It's not supposed to be something that a bunch of local folks come up with long after the mining operation is closed. Mine operators are not supposed to be able to just flatten the land, and hope somebody comes and builds a factory or a mall someday.”
Hamilton said surface mining is often pictured in black-and-white, but the reality is much more complex.
“Look, again, let's go to the math — the coal industry provides 60,000 jobs today at an average salary of $68,500 per year. The industry pays more than $3.4 billion each year in payroll and pumps some $26 billion into the state's economy. That is no small contribution. It is the very bedrock of our state's economy.
“About 45 percent of that impact comes from surface mining, and it is important to note that often the existence of a surface mine provides the economic support that allows affiliated underground mines to exist in an area. If you remove the surface mine component, you will likely make some underground mining facilities un-economic to operate.”
Due to early regulation and enforcement standards, Hamilton said, West Virginia is one of the most forested states in the nation. He said the need for greater diversity and development is now in demand and the future of West Virginia depends on development.
“I actually see these sites, with a properly developed mechanism to identify and market them, as one of our most important resources for building this new West Virginia,” Hamilton said. “With proper planning and coordination, I see these sites leading the way in the effort. And I see the coal industry as one of the most important resources our state has — both for today and for the future.”INVESTIGATION OF EPA-DOJ MALICE, FRAUD, AND DECEIT
FIRST INTERVENTION 1 , 2 , 3 , FILED MARCH 20, 2008
We join the Eighth and Tenth Circuits in holding that the answer is “yes.”
in looking at the substance of the matter, they can see that it "is a clear, unmistakable infringement of rights secured by the fundamental law." Booth v. Illinois , 184 U.S. 425 , 429 .
From such a gentle thing, from such a fountain of all delight, my every pain is born.
MichelangeloLook within. Within is the fountain of good, and it will ever bubble up, if thou wilt ever dig.
Words that everyone once used are now obsolete, and so are the men whose names were once on everyone's lips: Camillus, Caeso, Volesus, Dentatus, and to a lesser degree Scipio and Cato, and yes, even Augustus, Hadrian, and Antoninus are less spoken of now than they were in their own days. For all things fade away, become the stuff of legend, and are soon buried in oblivion. Mind you, this is true only for those who blazed once like bright stars in the firmament, but for the rest, as soon as a few clods of earth cover their corpses, they are 'out of sight, out of mind.' In the end, what would you gain from everlasting remembrance? Absolutely nothing. So what is left worth living for? This alone: justice in thought, goodness in action, speech that cannot deceive, and a disposition glad of whatever comes, welcoming it as necessary, as familiar, as flowing from the same source and fountain as yourself. (IV. 33, trans. Scot and David Hicks) - Marcus Aurelius
GLORIA DEI EST CELARE VERBUM. AMEN. - Proverbs 25:2 - It is the glory of God to conceal a thing: (but the honour of kings is to search out a matter.)
Bill Text
111th Congress (2009-2010)
S.787.RSS.787
Clean Water Restoration Act (Reported in Senate - RS)
SEC. 7. REGULATIONS.
(a) Promulgation- Not later than 18 months after the date of enactment of this Act, the Administrator of the Environmental Protection Agency and the Secretary of the Army shall promulgate such regulations as are necessary to implement this Act and the amendments made by this Act.
(b) Rules of Construction- Subject to the exclusions in paragraph (25)(B) of section 502 of the Federal Water Pollution Control Act (33 U.S.C. 1362) (as amended by section 4), the term `waters of the United States' shall be construed consistently with--
(1) the scope of Federal jurisdiction under that Act, as interpreted and applied by the Environmental Protection Agency and the Corps of Engineers prior to January 9, 2001 (including pursuant to the final rules and preambles published at 53 Fed. Reg. 20764 (June 6, 1988) and 51 Fed. Reg. 41206 (November 13, 1986)); and
(2) the legislative authority of Congress under the Constitution.
Calendar No. 685
111th CONGRESS 2d Session
S. 787
[Report No. 111-361]
A BILL
To amend the Federal Water Pollution Control Act to clarify the jurisdiction of the United States over waters of the United States.
December 10, 2010
Reported with an amendment
JOINT AND SEVERAL TRESPASSERS!
DOE ends Fed preemption of water rules
Jan 5, 2011 10:39 AM, BY ROBERT P. MADER Of CONTRACTOR's staff
The following are Tenth Amendment Center model bills and resolutions which are intended to reaffirm the proper role of government under the Constitution. Activists, we encourage you to send them to your state senators and representatives – and ask them to introduce the legislation in your state.
More model legislation is forthcoming…Please don't hesitate to Contact Us with questions or suggestions.
10th Amendment Resolution
WHEREAS, the people of the State of __________ are not united with the People of the other forty-nine states that comprise the United States of America on a principle of unlimited submission to their federal governmentFederal Health Care Nullification Act
An Act to render null and void certain unconstitutional laws enacted by the Congress of the United States, taking control over the health insurance industry and mandating that individuals purchase health insurance under threat of penalty.Defend the Guard
For the purpose of requiring the Governor to withhold or withdraw approval of the transfer of this State's National Guard to federal control in the absence of an explicit authorization adopted by the Federal Government in pursuance of the powers delegated to the Federal Government in Article I, Section 8, Clause 15 of the U.S. Constitution.Freedom from Registration Act
To make findings of the General Assembly in regard to a person's right to keep and bear arms, to provide that no federal official or agent may require registration of purchasers of firearms or ammunition within the boundaries of the state, and to provide penalties for violation of this act which is a felony.Intrastate Commerce Act
Provides that all goods manufactured or made in (STATE) and all services performed in (STATE), when such goods or services are held, maintained, or retained in (STATE), shall not be subject to the authority of the Congress of the United States under its constitutional power to regulate commerce.10th Amendment Commission
coming soon!Hemp Freedom Act
To authorize the production of industrial hemp; to amend (SUBSECTION AND CODE) of the (STATE) Code, relating to the definition of noxious weed seeds; and to nullify certain acts of the Federal Government of the United States purporting to be laws and regulations resulting in the prohibition of industrial hemp farming in the state of (STATE).Environmental Preservation Act
Any federal law, rule, order, or other act by the federal government violating the provisions of this act is hereby declared to be invalid in this state, is not recognized by and is specifically rejected by this state, and is considered as null and void and of no effect in this state.Constitutional Tender Act
The General Assembly finds and declares that sound, constitutionally based money is essential to the livelihood of the people of this state and to the stability and growth of the economy of this state and region and vitally affects the public interest. The General Assembly further finds that Article I, Section 10 of the United States Constitution provides that no state shall make any thing but gold and silver coin a tender in payment of debts.Controlled Substances Nullification Act
An Act to render null and void certain unconstitutional laws enacted by the Congress of the United States, prohibiting the sale, production, possession and consumption of certain products and substances under threat of penalty.Uniform Enumerated Powers Act
A Bill to require the federal government to specify the source of authority under the United States Constitution for the enactment of laws, and for other purposes.
Matthew 7
1 Judge not, that ye be not judged.
2 For with what judgment ye judge, ye shall be judged: and with what measure ye mete, it shall be measured to you again.
3 And why beholdest thou the mote that is in thy brother's eye, but considerest not the beam that is in thine own eye?
4 Or how wilt thou say to thy brother, Let me pull out the mote out of thine eye; and, behold, a beam is in thine own eye?
5 Thou hypocrite, first cast out the beam out of thine own eye; and then shalt thou see clearly to cast out the mote out of thy brother's eye.
6 Give not that which is holy unto the dogs, neither cast ye your pearls before swine, lest they trample them under their feet, and turn again and rend you.
7 Ask, and it shall be given you; seek, and ye shall find; knock, and it shall be opened unto you:
8 For every one that asketh receiveth; and he that seeketh findeth; and to him that knocketh it shall be opened.
9 Or what man is there of you, whom if his son ask bread, will he give him a stone?
10 Or if he ask a fish, will he give him a serpent?
11 If ye then, being evil, know how to give good gifts unto your children, how much more shall your Father which is in heaven give good things to them that ask him?
12 Therefore all things whatsoever ye would that men should do to you, do ye even so to them: for this is the law and the prophets.
13 Enter ye in at the strait gate: for wide is the gate, and broad is the way, that leadeth to destruction, and many there be which go in thereat:
14 Because strait is the gate, and narrow is the way, which leadeth unto life, and few there be that find it.
15 Beware of false prophets, which come to you in sheep's clothing, but inwardly they are ravening wolves.
16 Ye shall know them by their fruits. Do men gather grapes of thorns, or figs of thistles?
17 Even so every good tree bringeth forth good fruit; but a corrupt tree bringeth forth evil fruit.
18 A good tree cannot bring forth evil fruit, neither can a corrupt tree bring forth good fruit.
19 Every tree that bringeth not forth good fruit is hewn down, and cast into the fire.
20 Wherefore by their fruits ye shall know them.
21 Not every one that saith unto me, Lord, Lord, shall enter into the kingdom of heaven; but he that doeth the will of my Father which is in heaven.
22 Many will say to me in that day, Lord, Lord, have we not prophesied in thy name? and in thy name have cast out devils? and in thy name done many wonderful works?
23 And then will I profess unto them, I never knew you: depart from me, ye that work iniquity.
24 Therefore whosoever heareth these sayings of mine, and doeth them, I will liken him unto a wise man, which built his house upon a rock:
25 And the rain descended, and the floods came, and the winds blew, and beat upon that house; and it fell not: for it was founded upon a rock.
26 And every one that heareth these sayings of mine, and doeth them not, shall be likened unto a foolish man, which built his house upon the sand:
27 And the rain descended, and the floods came, and the winds blew, and beat upon that house; and it fell: and great was the fall of it.
28 And it came to pass, when Jesus had ended these sayings, the people were astonished at his doctrine:
29 For he taught them as one having authority, and not as the scribes.
Donna nobis pacem - Grant us peace : Fide, non armis - By faith, not arms
This is the truth, as old as the hills, that life and experience teach, the poor man suffers the keenest of ills, an impediment in his reach.
