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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;

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(Rules of the road? Stay out of ditch.)

SEPARATION OF CHURCH AND STATE

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" 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.

The remedy is in Article V of the Constitution, which permits a convention to be called for the purpose of proposing constitutional amendments. Any proposed amendment then would have to be ratified by both houses of 38 state legislatures (three-fourths of the states). This entails 76 separate votes in the affirmative by two houses of the 38 state legislatures. (Nebraska, with its unicameral legislature, would be an exception.)

Interest in calling a first-ever Article V convention is growing at the state level. A petition for such a convention passed the Florida Senate last month, to propose amendments requiring a balanced budget and to restrain the growth of the national government. If approved by the House, Florida would be the 20th state with an active call to do so. In the Virginia House of Delegates, I introduced a resolution (H.J. 183) calling for a constitutional convention to restrain the national government as well. Requests by two-thirds or 34 states are required for a convention to be called.

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"

"When the people fear their government, there is tyranny; when the government fears the people, there is liberty". - Thomas Jefferson

“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.

Congress trusts that the executive agencies will be good stewards of every taxpayer dollar. Clearly Administrator Jackson is not," Blackburn said.

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: ENS

Tempers 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. 08-124

District 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 - 2:52pm

In 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.

EXTORTION: The obtaining of property from another, with his consent, induced by wrongful use of actual or threatened force, violence, or fear, or under color of official right. 18 U.S.C. § 1951(b)(2).

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

 

New Law

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. 

 

 

FIESTA PARTY

Red Tape Rising:

Published on October 26, 2010 by James Gattuso , Diane Katz and Stephen Keen

Abstract: 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 Breakfast

9:00 a.m.
Welcome and Opening Remarks

Ambassador Terry Miller
Director, Center for International Trade and Economics, The Heritage Foundation

9:20 a.m.
Panel 1 – Entrepreneurship: The KILLER APP for Sustainable Development

Erkko Autio, Ph.D.
Director, Doctoral Program, Imperial College London Business School

Steven Pearlstein
Business Columnist, The Washington Post

John Haltiwanger, Ph.D.
Professor of Economics, University of Maryland

William Beach
Director, Center for Data Analysis, The Heritage Foundation

10:45 a.m.
Panel 2 – Measuring the KILLER APP

Leora Klapper
Senior Financial Economist, The World Bank

Steve Crabtree
Contributing Writer, Gallup Corporation

Laszlo Szerb
Associate Professor of Business and Economics, University of Pécs, Hungary

Anthony Kim
Policy Analyst, Center for International Trade and Economics, The Heritage Foundation

12:00 p.m.
Lunch – The Global Entrepreneurial and Development Index

Zoltan 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 Address

Roger 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 Development

Zoltan J. Acs, Ph.D.
Director, Center for Entrepreneurship and Economics, George Mason University

Samee Desai
Assistant Professor, Entrepreneurship and Innovation, Indiana University

David Audretsch
Director, Institute for Development Strategies, Indiana University

Jim Blasingame
Host, The Small Business Advocate (Moderator)

3:00 p.m.
Conference Wrap-Up

Jack 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.

· Public Health Statement

Addresses the most frequently asked questions about exposure to hazardous substances and the effects of exposure on human health.

Toxicological and Health Professionals 

· Toxicological Profile

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.

· Minimal Risk Level (MRL)

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.

· Interaction Profiles

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.

· Public Health Statement

Addresses the most frequently asked questions about exposure to hazardous substances and the effects of exposure on human health.

Toxicological and Health Professionals 

· Toxicological Profile

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.

· Minimal Risk Levels (MRL)

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.

· Interaction Profiles

Succinctly characterizes the toxicologic and adverse health effects information for mixtures of hazardous substances.

• Toxic Substances Portal

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=Submit

To 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.

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When All Appropriate Inquiry Isn't Enough:

Court Highlights the Significance of Other Factors in the Bone Fide Prospective Purchaser Defense

Contributor: Bryan Cave

SUMMARY: 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

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Safeguarding environment and heritage

Tools to Address Tenant Liability Concerns

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NPL Deletion

•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 notice

U.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.gov

Wednesday, 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, 1982 Title 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 10/03/1986

DECLARATIONS:
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 ENVIRONMENT

Disputing Jurisdiction When You Are Sued for Debt

By Kenneth Gibert

When 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, 2002

The 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 contamination

Exhibit 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 to

State 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 Ridge

14 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, 2010

In 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 apply

EXPLANATION 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,reports
Titles	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

RESOLUTION

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

1. Summary
2. 1.0 Background of the Guidance
3. 2.0 Purpose and Scope of the Guidance
4. 3.0 Applicability of the Guidance
5. 4.0 General Guidelines for Institutional Controls
6. 5.0 Specific Guidelines for Institutional Controls
7. 6.0 Documentation of Institutional Controls
8. 7.0 "Operating Properly and Successfully Demonstrations"
9. 8.0 Coordination with State, Local, and Tribal Governments
10. 9.0 Executive Order 13132, "Federalism"
11. 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.

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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.

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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).

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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).

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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.

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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:

1. A legal description of the real property or other geographical information sufficient to clearly identify the property where the institutional controls will be implemented.

2. A description of the anticipated future use(s) for the parcel.

3. 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.

4. 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.

5. 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.").

6. 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.

7. 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.

8. 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.

9. 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.

10. 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.

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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.

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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."

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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.

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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.

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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