The Current of Decisions Research A-Z

Produced by those lost elements of uncertainty found in the shifting sands of evidence

Flotsam, Jetsam, Ligan, Derelict
A Region Lying along Littoral Shore
"the mother lode of contaminated sites" Jared Blumenthal, EPA regional administrator
a group of environmental scientists groped in the darkness
process and procedure

"It is a measure of success," Blumenfeld said," that this toxic concoction is no longer pouring into the river." "We've come across to the other side of the mountain," he said. "It is great to see that we can get back to a place where the water again runs clear. If you can clean up the Iron Mountain Mine, you can clean up anything."

a mixture of various ingredients or elements.
"a concoction of gables, shingles, stained glass, and towers inspired by English medieval houses"
synonyms: mixture, brew, preparation, potion More
         an elaborate story, especially a fabrication.
        "her story is an improbable concoction"
synonyms: fabrication, invention, falsification;
informalfairy tale
"her story is an improbable concoction"

Blumenfeld leaving EPA

Blumenfeld’s departure comes seven months before his term as Region 9 administrator was set to expire; he was appointed to the position by President Obama in January 2010. His deputy, Alexis Strauss, will be the acting administrator until the end of the Obama administration. The next president will choose the new regional administrator.
“I’ve worked every single day since I graduated from law school at UC Berkeley,” said Blumenfeld, who was head of San Francisco’s department of the environment before joining the EPA.
When he took office, he vowed to make the EPA relevant again.
“I realized then that I love hiking and being in nature, and that this was something I wanted to do,” he said. His time in the EPA “was an incredible privilege and a real learning experience. I’m confident the agency has a goal of advancing the values I’ve set forth. Now, I just need time to figure out what I want to do next.”

An Extraordinary and Extreme Environment

"You can trace every sickness, every disease, and every ailment to a mineral deficiency." - Dr. Linus Pauling, two-time Nobel Prize winner

"The lack of minerals is the root of all disease." Dr. Gary Price Todd

"In the absence of minerals, vitamins have no function. Lacking vitamins, the system can make use of the minerals, but lacking minerals vitamins are useless." - Dr. Charles Northern

“Soil is the basis of all human life and our only hope for a healthy world….All of life will be either healthy or unhealthy according to the fertility of the soil. Minerals in the soil control the metabolism of cells in plant, animal and man….Diseases are created chiefly by destroying the harmony reigning among mineral substances present in infinitesimal amounts in air, water and food, but most importantly in the soil.” Dr. Alexis Carrel, Nobel Prize for Medicine in 1912

"Our most optimistic expectations are no less than the realization of an old dream. What will fertilizing with rock dust accomplish? It will turn stones into bread...make barren regions (fruitful) (and) feed the hungry." -1894, Julius Hensel

"There is no doubt that malnutrition is the most important problem confronting mankind at the present time." Dr. Melchior Dikkers, Professor of Biochemistry and Organic Chemistry at Loyola University.

"A declining soil fertility, due to a lack of organic material, major elements, and trace minerals, is responsible for poor crops and in turn for pathological conditions in animals fed deficient foods from such soils, and that mankind is no exception.  N P K formulas, as legislated and enforced by State Departments of Agriculture, mean malnutrition, attack by insects, bacteria and fungi, weed takeover, crop loss in dry weather, and general loss of mental acuity in the population, leading to degenerative metabolic disease and early death." Dr. William A. Albrecht, Chairman of the Department of Soils at the University of Missouri

"mineral depletion from soils over the last 100 years equals "74%  Africa, 76%  Asia, 55%  Australia, 72%  Europe, 76%  South America, 85%  North America " Earth Summit Report, 1992

Hunger is not an abstract idea. It is a reality affecting the lives of millions of Americans every single day. And it hits our children particularly hard, with over 16 million kids in our country experiencing food insecurity each year. Internationally, nearly 1 billion people across the globe will go to bed hungry tonight and 200 million of them are children.  We can all play a role within our communities to ensure that no man, woman, or child faces hunger. Read more »

"It is estimated that the destruction from a single wave of cyberattacks on U.S. critical infrastructures could exceed $700 billion — the equivalent of 50 major hurricanes hitting U.S. soil at once." — U.S. Cyber Consequence Unit”

An attack on a utility — either through a cyberattack or physical entry to the facility — will have serious ramifications to citizens, causing severe economic damages and life-threatening situations.


"Power to prescribe the terms and conditions upon which they may be so used."


Federal Certificate of Rehabilitation

Force Majeure

NEW COMMISSION:  The Code of Honor
Brinkmanship "where there is no tribunal to do justice"

Fashioning appropriate spoliation remedies
Current and prospective reasonable and beneficial need for
operational functions adhering to the formal security
mechanism in place managed with great prudence and marked success
(as opposed to financial or administrative) strategic resource readiness
phenomenon of an exceptional and irresistible character
foresight exercise of
inevitable unanticipated grave effect
undertaking responsible disposal practice

(as demonstrated by the breadth of participating litigants).

“Avoid antagonistic tactics, wasteful procedural maneuvers and teetering brinkmanship.” Chief Justice Roberts

"Hope in reality is the worst of all evils because it prolongs the torments of man." -Nietzsche

Still fighting

EPA overreach must be stopped

Editor’s note: The Register-Herald’s parent company, Community Newspaper Holdings Inc., has papers all over the United States. Today, this space shares what one of those papers thinks about the issues facing their communities.

The fight to rein in an out-of-control federal Environmental Protection Agency is continuing. And the stakes couldn’t be higher for West Virginia, and other coal-producing states like Virginia, that have been hit particularly hard by the crippling anti-coal regulations coming out of Washington.

The U.S. Supreme Court granted a stay in February of President Barack Obama’s job-killing Clean Power Plan that was requested by West Virginia Attorney General Patrick Morrisey and 23 other states that are correctly challenging the legality of these new regulations that have already caused unprecedented harm to our region.

As a result of the temporary stay granted by the high court, the EPA plan is “frozen in place” until the case goes back to the U.S. Court of Appeals in D.C. where arguments will be presented June 2 and 3, Morrisey told the Daily Telegraph last week. He correctly argues that it is more than an isolated court case challenging an agency. It instead has ramifications well beyond the Clean Power Plan.

“The EPA has become a command and control agency,” Morrisey said. “My job is to challenge it when it crosses the line. This (Clean Power Plan) goes well beyond the EPA’s original mission.”

The EPA, according to Morrisey, is trying to exert more and more power in manufacturing and business, reflecting a political posture rather than sound practices.

“It is an environmental regulatory agency,” Morrisey said. “It is not a central energy planning authority” and that power, if left unchecked, could threaten any fossil fuel initiative. He (President Obama) is advancing his policy agenda (by using the EPA). It was never intended to play the role the president wants it to play. It lacks legal authority.”

At the heart of the argument of the 24 states is the belief that the EPA is attempting to double regulate coal-fired plants and that such action is prohibited under the law.

But the EPA overreach doesn’t end there. Morrisey warns that another unacceptable agency initiative is a proposed rule that, if implemented, could deal a significant blow to stock car and drag racing in West Virginia.

The proposal would require that certified motor vehicles, engines and emission control devices remain in their certified configuration, even if altered vehicles are used exclusively for competition or nonroad purposes. Morrisey warns this could jeopardize racing as well as the countless jobs and local economics that benefit from the pastime’s success.

“This rule effectively makes modifying a vehicle for purposes of racing illegal,” Morrisey said in a recent letter to the EPA. “That will destroy jobs and end a pastime Congress specifically protected under the Clean Air Act. Any purported benefit gained by EPA would pale in comparison to the economic damage it will cause.”

Unbelievable. First coal, then wood and now stock car and drag racing? Will the EPA madness ever end? And how much additional harm must be done to West Virginia, Virginia and other coal-producing states before sanity — via either a favorable court ruling, a new president, or both — is returned to Washington?

— Bluefield Daily Telegraph

Rep. LaMalfa Responds to GAO Report Confirming EPA Deceit in WOTUS Rulemaking Process

“It’s no surprise that the Government Accountability Office found that the EPA violated federal laws and engaged in a propaganda campaign. In fact, this is the status quo for the EPA.  From the start, agency officials showed little hesitancy in pushing their Waters of the U.S proposal to give unelected bureaucrats control of nearly every body of water in the country. Instead of adhering to the formal rulemaking process and taking into account public opposition, serious stakeholder concerns, and considerable questions of legality, EPA used illegal propaganda to promote extreme partisan priorities.  Using taxpayer funds to deceive the American public is completely unacceptable, which is why I will continue using every tool available to block funding for EPA’s WOTUS overreach and uphold our rule of law.”

Congressman Doug LaMalfa

Daily Caller News Foundation

Americans Have To Fill Out 188 Million Hours Of Paperwork To Comply With EPA Regs

The Environmental Protection Agency (EPA) is not only costing heavy industries billions of dollars a year, the agency is also forcing companies to spend 188 million hours every year filing paperwork to comply with federal rules.

To comply with EPA’s paperwork burden “it would take more than 94,200 employees working full-time (2,000 hours a year) to complete one year of EPA paperwork,” according to Sam Batkins, the director of regulatory policy at the American Action Forum (AAF).

“Year after year of new regulatory costs have not only translated into shuttered power plants, but also new reporting and recordkeeping requirements. EPA’s paperwork burden now stands at 188 million hours,” Batkins wrote in a report on how much paperwork it takes to comply with EPA rules.

“The agency’s burden has surged 23 percent since 2009 and 34 percent since 2002. See graph below,” he wrote.

What’s ironic is the increase in the amount of paperwork it takes to comply with EPA rules comes as the Obama administration works to “streamline” the regulatory process. EPA paperwork requirements shot up 51.5 million hours for just twelve rules.

What’s more is the EPA doesn’t always allow businesses to electronically file compliance paperwork. Batkins noted the EPA “imposes 777 forms from 420 different macro collections of information” and “only 67 of those 420 macro collections can be submitted electronically.”

“This translates to 235 forms, or 30 percent, of EPA’s regulatory portfolio that must be submitted by hand,” he wrote.

Batkins also found seven rules did not report the costs of 43 paperwork requirements, which means federal agencies allow billions of dollars in regulatory costs to go unreported.

The Obama administration has imposed massive regulatory costs on the economy. The White House says regulations impose nearly $1.8 trillion in compliance costs every year, but officials assure the public the claimed benefits of these rules greatly outweigh the costs.

“In an administration that continues to collect regulatory records: most expensive year of regulation, highest number of major rules, and priciest single regulation, EPA’s paperwork plaudit only adds to the list,” Batkins wrote.

“Although the agency is primarily known for the capital costs it imposes on industry, many of which are passed on to consumers, its paperwork burden shouldn’t be overlooked. With four major rules under review now, it’s likely 188 million hours isn’t the agency’s red tape ceiling,” he wrote.

Read more: http://dailycaller.com/2016/06/28/americans-have-to-fill-out-188-million-hours-of-paperwork-to-comply-with-epa-regs/#ixzz4CvvgzPn1

Report: 18 million Americans in danger of drinking toxic water

Multiple industry experts say the EPA has done almost nothing to enforce its own water regulations

(CNN) – CNN has learned millions of Americans are drinking water from systems violating lead rules, and it’s no secret to the government.

More than 18 million Americans are getting their drinking water from systems that have violated federal lead rules. Not only does the Environmental Protection Agency (EPA) know about it, the agency has done almost nothing to enforce its own regulations, according to multiple industry experts

“I think that the public needs to be told the truth about contamination in their water supply,” said Erik Olson, of the Natural Resources Defense Council.

More than 5,000 water systems are in violation, including failure to properly test water, failure to report contamination and failure to treat water properly, according to a new analysis by the Natural Resources Defense Council (NRDC).

In 9 out of 10 cases, the EPA took no enforcement action when water systems violated the “lead and copper rule” — the federal regulation meant to keep America’s tap water safe from lead.

“Imagine a cop sitting, watching people run stop signs, and speed at 90 miles per hour in small communities and still doing absolutely nothing about it. That’s unfortunately what we have now,” Olson said.

Olson is among the experts saying water utilities are routinely “gaming the system,” using incorrect testing methods to “avoid detecting high levels of lead.” What that means is there are more water systems with lead issues, that aren’t officially in violation.

“They don’t care if they’re violating the law, they don’t feel like they’re going to face any penalties,” he said.

Philadelphia is one city accused of gaming the system. In 2014, city officials sent residents questionable instructions for testing — telling them to pre-flush their water and to remove aerators, which often trap particles of lead. Experts say both techniques would make lead levels appear lower than they actually are.

In fact, the EPA instructed as far back as 2007 that they “should not remove or clean aerators.”

“I wanted to test my water,” said Jonathan King, of the Philly Unleaded Project.

King’s 18-month-old daughter has been drinking Philadelphia’s water from the tap since she was born. He’s organizing a group of homeowners to get independent answers because he doesn’t trust the way the city conducted its testing.

“It concerns me that they’re not using the best practices available. It concerns me that they’re not following the latest EPA regulations,” he said.

So why doesn’t the EPA enforce it’s own rules? Multiple sources and industry experts told CNN that it comes down to two key reasons – water isn’t a main priority for the EPA because its resources are stretched thin, and the EPA has a the cozy relationship with the water systems it’s supposed to regulate.

“They’re friends, they hangout with each other, they ask for each other’s advice, and you get close after awhile,” Olson said.

“Citizens should be very concerned,” said Alan Morrissey, who retired from the EPA’s Office of Civil Enforcement.

When Morrissey retired last year from his job as an EPA water department enforcement officer, he said he was frustrated because blatant violations would go without punishment. Morrissey says even EPA employees don’t trust what comes out of the tap.

“So most of my colleagues have all chosen to install a water filter underneath our kitchen sink,” he said.

State & federal officials sign agreement for Klamath River Basin restoration


Officials from the U.S. Department of the Interior, Department of Commerce, states of Oregon and California and PacifiCorp signed legislation today that will lead to the removal of four dams on the Klamath River by 2020.

The 2016 Klamath Power and Facilities Agreement (KPFA), hailed as one of the largest river restoration efforts in U.S. history, was designed in a process administered by the Federal Energy Regulatory Commission and is intended to restore fish habitat along the Klamath River.

"This agreement is an important initial step as we work toward a comprehensive set of actions to advance long-term restoration and sustainability for tribes, fisheries, and agriculture and water users across the Klamath Basin," Secretary of the Interior Sally Jewell said.

Jewell signed the KPFA alongside California Gov. Edmund Brown, Oregon Gov. Kate Brown, National Oceanic and Atmospheric Administration administrator Kathryn Sullivan and Pacific Power CEO Stefan Bird at a ceremony at the Klamath's mouth on the Yurok Indian Reservation.

Per the plan, licenses to operate the 90-MW J.C. Boyle, 20-MW Copco, 1.27-MW Copco 2 and 18-MW Iron Gate hydroelectric plants and their associated dams will be transferred from PacifiCorp to a private company known as the Klamath River Renewal Corporation. KRRC will oversee their removal, while PacifiCorp continues to operate the projects until they are decommissioned.

"PacifiCorp continues to support the Klamath settlement as a fair way forward for our electricity customers in Oregon, California and beyond," Bird said. "The company is committed to continuing to work with our settlement partners to fully enact this important agreement."

The agreement is the culmination of a process that officially began in February 2010, when more than 40 entities signed the Klamath River Hydroelectric Settlement Agreement (KHSA).

The KHSA called for a "robust scientific and environmental evaluation of the potential removal of these facilities," Interior said, with other emphases including a large-scale effort to restore natural fish production, establish reliable water and power supplies, and support communities along the river.

"These agreements are more than ink and paper," Gov. Brown said. "They are a roadmap to a future of the Klamath Basin and of the people who live there. I'm proud to be part of a plan that invokes the spirit of collaboration to ensure the recovery of the Klamath's historic fishing grounds while sustaining the region's farming and ranching heritage."

Funding for the removal project will come from PacifiCorp customers in Oregon and California, along with a bond passed by voters in California in 2014.

Rep. LaMalfa Urges Interior and EPA to Assess Iron Mountain Mine Drainage

Given the fact that EPA contractors have failed to adequately contain similar sites in other states, I believe the EPA and the Department of Interior must act to ensure the drainage from this inactive mine is being handled appropriately,” said LaMalfa. “Failing to secure this highly toxic drainage could have devastating consequences for our state. I urge Secretary Jewell and EPA Administrator McCarthy to make Iron Mountain mine a top priority.”

 A Message from Congressman LaMalfa

Dear john,

While it may be Easter break for some, I'’ve spent the last week traveling throughout the North State and visiting with constituents in nearly every corner of the district. As important as legislative work in Washington is, it is just as critical to listen to the concerns of constituents and learn more about how I can better serve you as your Representative.

Thank you to everyone who came out and participated in events this week throughout the district; your participation and enthusiasm is a vital part of our republic. Below are some examples of the events, and as Congress heads back into session next week I will have the concerns and goals of the many people I had the pleasure of speaking with front and center in my mind.


Audit: EPA Engaged in ‘Covert Propaganda’

Incorporation of geochemical modeling and mineralogical expertise into the decision-making process for remediation can save time, save money, and reduce the likelihood of deleterious consequences.
The Iron Mountain Mine Superfund site is an extreme example of how the formation of soluble efflorescent minerals can make certain remediation alternatives much more risky and potentially disastrous than might otherwise be imagined. The reporting of negative pH values has been controversial, and for several good reasons. The conventional definition of pH based on the National Bureau of Standards criteria and defined buffer systems limits the range of definable and measurable pH values to that of 0 to 14. Outside this range, the concept and measurement of pH are difficult at best. (Absurd at worst. -ed.)

remediation of large inactive mine sites such as Iron Mountain has proven to be extraordinarily difficult, complex, and expensive, not to mention litigious. The physical and chemical nature of the site makes it difficult to assess the effectiveness of remediation and the relative risks and costs of various alternatives and their contingencies. There are no easy solutions to these types of environmental problems, but several important points can be made about cleanup of mine waste sites on the basis of our experiences at Iron Mountain.

First, there is tremendous value to having a technical advisory team of multidisciplinary professionals, without an obvious conflict of interest, to advise the regulatory agencies, to review data, and to make recommendations. Mine sites and their contaminants are complex functions of the geology, hydrology, geochemistry, pedology, meteorology, microbiology, and mining and mineral processing history, and their remediation is subject to considerations of economic limitations, available technology, and potential land use. Furthermore, the risks of failed remediation or no action are often poorly known. Assessing such risks involves toxicology, epidemiology, wildlife biology, and dealing with public perception. To ignore professionals in these areas, who can contribute both to the wisest choice of remediation strategies and to public awareness and education is to invite mistakes.

Second, the effectiveness of a remedial alternative usually cannot be easily quantified or predicted. Hence, we must admit that remediation is experimental. Research is required to effect the best and most appropriate remediation available at a given time for a given site. Both long-term and short-term remediations are needed. For the short term, we need to fill in the knowledge gaps, especially as they pertain to a particular site. For the long term, we need to continue to develop better remediation techniques and mining and processing techniques that can utilize mine wastes and mineral deposits of lower grade. Mineralogical and geochemical knowledge make it possible to foresee the potential consequences of a remedial option and to plan a remediation strategy. The results of long-term research by the U.S. Geological Survey provided technical tools (computer programs for geochemical modeling and procedures for measuring pH) that could be used to answer important questions regarding remediation scenarios.

Third, it would seem prudent to proceed on mine waste cleanup in a phased, iterative approach. Our natural inclination is to identify the worst part of a hazardous waste site and attempt to clean it up. For Iron Mountain, there is no single remedial solution that would clean up 90% of the problem on a permanent and maintenance-free basis (with the exception of completely mining the mountain). There are, however, several options (most of which have been exercised) that are low risk and low cost and should reduce the discharge of acid mine waters. These options can be instituted while deliberations and research continue to find the long-term solution.

Fourth, mine waste sites commonly contain low-grade resources that are potentially mineable—it requires the right technology to make resource recovery economic. In an age of increasing recycling, recycling strategies should be applied to mine sites. Many mine wastes have already undergone further metals extraction and others could be stockpiled or tested for new uses. Additional research into metal recovery from acidic solutions could also provide economic incentive to recycling metals from mine drainage waste streams.

Finally, Iron Mountain has been an extraordinary and extreme environment in which to study and document the processes of acid mine water production and efflorescent mineral formation, the value of which goes far beyond just the immediate remediation needs. The processes and properties found at Iron Mountain are probably commonplace at metal sulfide mine and mineral processing sites, but usually on a smaller scale. We now have some direct observations of the composition of water that produces efflorescent minerals. We have some idea of the consequences of efflorescent mineral dissolution when a mine is plugged. We can estimate the geochemical consequences of various remediation scenarios for mine sites with better confidence. Unraveling the dynamic processes that affect water–mineral interactions is often critical to solving hazardous waste problems in the hydrogeologic environment.

  • The spreading of misinformation online

    1. Walter Quattrociocchia,1
    1. Edited by Matjaz Perc, University of Maribor, Maribor, Slovenia, and accepted by the Editorial Board December 4, 2015 (received for review September 1, 2015)


    The wide availability of user-provided content in online social media facilitates the aggregation of people around common interests, worldviews, and narratives. However, the World Wide Web is a fruitful environment for the massive diffusion of unverified rumors. In this work, using a massive quantitative analysis of Facebook, we show that information related to distinct narratives––conspiracy theories and scientific news––generates homogeneous and polarized communities (i.e., echo chambers) having similar information consumption patterns. Then, we derive a data-driven percolation model of rumor spreading that demonstrates that homogeneity and polarization are the main determinants for predicting cascades’ size.


    The wide availability of user-provided content in online social media facilitates the aggregation of people around common interests, worldviews, and narratives. However, the World Wide Web (WWW) also allows for the rapid dissemination of unsubstantiated rumors and conspiracy theories that often elicit rapid, large, but naive social responses such as the recent case of Jade Helm 15––where a simple military exercise turned out to be perceived as the beginning of a new civil war in the United States. In this work, we address the determinants governing misinformation spreading through a thorough quantitative analysis. In particular, we focus on how Facebook users consume information related to two distinct narratives: scientific and conspiracy news. We find that, although consumers of scientific and conspiracy stories present similar consumption patterns with respect to content, cascade dynamics differ. Selective exposure to content is the primary driver of content diffusion and generates the formation of homogeneous clusters, i.e., “echo chambers.” Indeed, homogeneity appears to be the primary driver for the diffusion of contents and each echo chamber has its own cascade dynamics. Finally, we introduce a data-driven percolation model mimicking rumor spreading and we show that homogeneity and polarization are the main determinants for predicting cascades’ size.


    • Author contributions: M.D.V., A.B., F.Z., A.S., G.C., H.E.S., and W.Q. designed research; M.D.V., A.B., F.Z., H.E.S., and W.Q. performed research; M.D.V., A.B., F.Z., F.P., and W.Q. contributed new reagents/analytic tools; M.D.V., A.B., F.Z., A.S., G.C., H.E.S., and W.Q. analyzed data; and M.D.V., A.B., F.Z., A.S., G.C., H.E.S., and W.Q. wrote the paper.

    • The authors declare no conflict of interest.

    • This article is a PNAS Direct Submission. M.P. is a guest editor invited by the Editorial Board.

    • This article contains supporting information online at www.pnas.org/lookup/suppl/doi:10.1073/pnas.1517441113/-/DCSupplemental.

    Freely available online through the PNAS open access option.


Webinar: CERCLA Section 108(b) Proposed Rule for Hard Rock Mining

TUESDAY, April 26, 2016

2:00 PM - 3:00 PM EDT

You are invited to attend a webinar on the development of the CERCLA 108(b) Hard Rock Mining Proposed Rule for financial responsibility for certain hard rock mines and mineral processing facilities under Section 108(b) of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA).

The upcoming webinar will provide an update on the Agency's progress in developing the rule, and describe the Agency's current thinking on the key aspects of the rule described in the Agency's previously presented regulatory framework. Stakeholders and other members of the public are invited to learn about the CERCLA 108(b) rulemaking and will have the opportunity to ask questions during the webinar.

The webinar will be recorded and available for later viewing.

To register for the webinar please visit:


We repeat the guiding principle: 'Under California law, "[p]roper overlying use, . . . is paramount, and the right of an appropriator, being limited to the amount of the surplus, must yield to that of the overlying owner in the event of a shortage unless the appropriator has gained prescriptive rights through the taking of nonsurplus waters." [Citation.]' (Hi-Desert County Water Dist. v. Blue Skies Country Club, Inc., supra, 23 Cal.App.4th 1723, 1730-1731, original italics omitted.) Thus, while the rights of all overlying owners in a groundwater basin are correlative, and subject to cutbacks when the basin is overdrafted, overlying rights are superior to appropriative rights. Here, the trial court did not attempt to determine the priority of water rights therefore injunctive relief protecting our overlying water rights to our current and prospective reasonable and beneficial need for water.
In the case of an overdraft, riparian and overlying use is paramount, and the rights of the appropriator must yield to the rights of the riparian or overlying owner. (Burr v. Maclay Rancho Water Co. (1908) 154 Cal. 428, 435; Katz v. Walkinshaw (1903) 141 Cal. 116, 135.)

"The pueblo right gives the city holding it a paramount claim to particular waters only to the extent that they are required for satisfying its municipal needs and those of its inhabitants. 'It thus insures a water supply for an expanding city [citation] with a minimum of waste by leaving the water accessible to others until such time as the city needs it.' [Citation.]" (City of San Fernando, supra, 14 Cal.3d at p. 252, italics added by City of San Fernando.)

In ordering a physical solution, therefore, a court may neither change priorities among the water rights holders nor eliminate vested rights in applying the solution without first considering them in relation to the reasonable use doctrine. (See 1 Rogers & Nichols, Water for California (1967) § 404, p. 549, and cases cited.)

1914   Tax Exemption for Universities -- Nonprofit colleges and universities are exempted from property taxation. (Constitutional amendment, proposed by the Legislature, approved by 53 percent of voters.) A 100-acre cap on their tax-exempt property is expanded in 1962 to include all lands used for higher education.

Iron Mountain District, Redding Quadrangle, California

Largest and most active district of the copper region

(Congressional serial set)

Iron Mountain district. —This district adjoins Backbone Creek district on the south, and lies 8 miles north from Shasta, and, like the adjoining district, the California and Oregon Railroad and Sacramento River run through it. The district is over 5 miles in length, and takes its name from a rugged mountain which lifts its head to an altitude of 7,000 feet above the level of the sea.

Across this mountain, and extending through the district is one of the most colossal and remarkable bodies of silver ore yet discovered in this part of the State, and it may also be remarked here that the immense ledge, that traverses Backbone district is generally supposed to be but a continuation of this vast silver dike. For 110 yards this ledge crops out naked above the surrounding formation to a height of from 30 to 50 feet.

The Lost Confidence mine, the original discovery claim, owned by Camden & Co., extends 1 mile along the ledge. Two tunnels have been run into this ore-body, but neither of them has gone through it. The upper tunnel is in 140 feet, and 75 feet below a second tunnel is in 300 feet and connected with the upper one by a shaft which descends all the way through a solid body of silver ore. No reduction works have been erected on the mine, but the company have built a wagon road to Shasta at an expense of $10,000, and are shipping ore to San Francisco which pays from $75 to $100 per ton, while some selected lots have yielded $4,000 per ton.

placed on the California inventory of historic places (California Department of Parks & Recreation 1976:89)

Mountain Copper Co. Matheson, Ca.


Officers: Wm. B. Davidson, pres.; A. L. Irish, v. p.; D. J. Hoge. sec.tieas.: with A. E. Rutherford and P. B. Ellis, directors; W. J. McCray. nigr.

Cap., $150.000; shares lOc par. The new company has paid for the mine partly in stock and given a first mortgage trust deed for $66,000.

Property: 200 acres patented and 300 acres unpatented land in sec. 35, T. 4 S., R. 16 E., 4}4, miles E of Hornitos. on the west vein of the Mother Lode, said to show gold ore.

Development: by 1,350' incline shaft with 11 levels and about 8,000' of workings. At present the mine is full of water, but old records are said to show a y vein assaying $7 per ton.

Equipment: includes electric hoist, air compressor and 20-stamp mill with amalgamation and concentration tables. Electric power is obtained from the San Joaquin Power & Light Co.

Mine has been idle from 1910, until new company came into possession on May 10. 1916. Reported to have added a 100-h. p. electric hoist and overhauled the mill, preparatory to starting operations. MOUNTAIN COPPER CO., LTD. CALIFORNIA

Secretary's address: 3 Lombard St., London, E. (_., England. Operating office: 332 Pine St., San Francisco, Calif. Mine office: Keswick, Shasta county, Calif. Works office: Martinez, Contra Costa county, Calif.

Directors: Major F. B. Lawson, chairman; Henry J. Wenham, J. T. Middleton, E. T. McCarthy and A. N. Frewer; Wm. F. Kelt, gen. mgr.; M. J. Murphy, mine supt.; T. B. Swift, smelter supt.; Jardine, Matheson & Co., Ltd., 25 Madison Ave., New York, American sales agents.

Inc. Dec. 1, 1896, in Great Britain, and reorganized May 10, 1902. Cap., ^250,000; shares i\ par. in 1899 the company changed its capitalization to £250,000 in shares and £1,000,000 in 6% in debenture stock; shares £4 par, on which a first payment of £1 per share was made Jan. 16, 1905, leaving £750,000 of stock outstanding. The change in 1899 was practically a complete amortization. A further refund of 10s per share was made in 1918, leaving the outstanding, as at Jan. 1, 1919, £625,000.

Dividends: before reconstruction, 1897-1901, aggregated 58}/2%. No more are to be paid until debentures are paid off.

Profits were £150,255 in 1907; £28,115 in 1908; £24,557 in 1909; a deficit of £3,042 in 1910; profit of £55,069 in 1911; £81,686 in 1912; £53,456 in 1913; £35,562 in 1914; £106,365 in 1915; £232,106 in 1916; £114,674 in 1917.

Property: is extensive, including the Iron Mountain and Hornet mines, 1O miles N. W 7 . of Redding. The Iron Mountain mine was opened, 1880, for silver, and had a 20-stamp mill, treating the gossan in a small way for some years after 1884.

The Iron Mountain mine had a gossan of 100' to 300' width, covering a lens of ore, 100 ; to 400' wide, 800' long and 500' deep, in a shear zone of meta-rhyolite. The ore carries chalcopyrite associated with pyrite, averaging about 5% copper, 2 oz. silver and slightly under $1 gold per ton. The orebody was worked pillar-and-stall, and slopes filled with waste, but pillars have been robbed and the mine now shows little high-grade suphide ore. The old orebody being pyrite, there was trouble from fires, but the application of the plenum system of ventilation, by Mr. Wright, restored normal conditions. Considerable cement copper was secured from the charged waters coming from the fire zone.

Ore reserves in No. 8 mine at end of 1918 were 300,000 tons.

The Hornet mine, lying to the north of the Iron Mountain, developed about 5,000.000 tons of pyrite ore, averaging only about l'/o in copper tenor, with patches up to 2.5% copper, and carrying 47 to 50% sulphur. Gold and silver contents are very small, but the ore is valuable for the manufacture of sulphuric acid, saving the copper and precious metals as by-products. A large quantity of this ore is sold around San Francisco Bay, and a description of the crushing and screening plant that prepares the pyrite for market will be found in the Mining and Scientific Press of Nov. 1, 1919, by L. C. White.

The mines are connected with Keswick by an 11-mile narrow-gauge steam railway, traversing a rugged country, with an average grade of nearly 4%, the elevation gained being 2,000'.

Since Sept., 1917, company has been treating an average of 500 tons daily in its flotation mill. Including mill concentrates, pyrites from the Hornet mines and other ores, about 20,000 tons a month are shipped from the mines to the Martinez smelter.

Employs about 500 men.in Shasta county, and 200 at the smelter in Contra Costa county.

The Keswick smelter, fully described in Vol. VIII, Copper Handbook, has been dismantled. The 250-ton oil flotation mill started operating in March, 1915, and was enlarged to 550-ton capacity in 1917. It is located 5 miles from Iron Mountain on the narrow-gauge railway. A complete description is in the Mining and Scientific Press of Sept. 6, 1919.

The 350-ton Martinez smelter, on San Francisco bay, has extensive acid works built at a cost of approximately $1,250,000. The Hornet ores.. low in copper but rich in sulphur, are burned, the sulphur fumes collected in lead-lined chambers and transformed into sulphuric acid by the Meyer chamber process, the cinder remaining after the roasting is smelted for its copper contents. The acid is sold crude and also is used as the basis of commercial fertilizers for which there is a considerable demand in the rich fruit and agricultural districts of California and the other Pacific coast states. The Martinez works also do a general custom business and are fully equipped with steam, electric and pneumatic power.

A 150-ton leaching plant was added to the smelter in 1917, and is successfully extracting copper from the cinders remaining after the sulphur is burned from the Hornet sulphide in the manufacture of sulphuric acid.

Production: Jan., 1919, was at the rate of 650 tons daily from the mines at Iron Mountain, and 500 tons daily from the Hornet. At one time, only a decade ago, this company was among the largest copper producers of the world, but has since greatly declined in output, production having been 29,727,040 Ib. fine copper in 1901; 19.116.160 Ib. in 1903: 6.814,000 !b. in 1907; 3,638,619 Ib. in 1908: 2,775,197 Ib. in 1909; 2,987,815 Ib. in 1910: 5.400.000 Ib. in 1911; 5.614,000 Ib. in 1912; 6,890,000 Ib. in 1913; 5.454.000 Ib. in 1914; 7,280,712 Ib. in 1915: 9,172,390 Ib. in 1916; 8.122,325 Ib. in 1917. and 6,802.612 Ib. in 1918. In Aug., 1919. the company stood at the head of Shasta county copper producers as the result of increased output and idleness of the Kennctt smelter of the Mammoth Copper Co.

Company has been managed with great prudence and marked success, both financially and technically and notwithstanding the depletion of an originally rich mine, has been able to make a success by the treatment of lowgrade pyrite ores, with the manufacture of acid.

Iron Mountain Railway.

By Greg Maxwell.

In the early 1860s William McGee and Charles Camden secured a claim on an iron deposit on Iron Mountain, nine miles north-west of Redding, California. In 1879 silver was discovered on an adjacent claim by James Sallee who then formed a partnership with McGee and Camden. The combined property was leased in 1886 to a party who erected a 20 stamp mill. It was found that the silver ore contained too much base metal to be worked profitably and the operation folded. The silver mine on Iron Mountain was eventually sold in 1894 to a group of English metal brokers who incorporated as the Mountain Mines Syndicate, LTD in 1895.

While doing exploration work, the English company discovered a large body of sulphide copper ore. The ore assayed 7% copper and had gold and silver values of two to three dollars per ton. To exploit the discovery, plans were made for a narrow gauge railroad to run between the mine on Iron Mountain and Keswick (m.p. 265) on the Southern Pacific. A smelter site was prepared 1.2 miles up Spring Creek from Keswick station.

The Iron Mountain Railway was incorporated on July 17, 1895. The company was capitalized at $100,000 with Louis B. Parrot named as President. The railroad was constructed between August, 1895 and February, 1896 by railroad contractor J.A. McLean under the direction of engineer Michael M. O’Shaughnessy. O’Shaughnessy would go on to gain wider fame as the builder of San Francisco’s Hetch Hetchy water project.

The route laid out by O’Shaughnessy was something of an engineering marvel. To reach the company’s mine; the Iron Mountain Railway had to climb 1,850 feet in 10.65 miles. To keep the maximum grade under 3.75%; O’Shaughnessy utilized a switchback, a 163’ tunnel, two partial loops and one complete loop with a maximum curvature of 34°. The longest piece of straight track on the entire railroad was only 655’ in length. There were 25 trestles, the longest of which was the 255’ crossing at the Spring Creek loop. The 1.2 mile portion of the line between Keswick and the smelter was dual gauge and was laid with 56# and 80# rail. The balance of the rail was 40#. The first revenue run over the Iron Mountain Railway was made on February 1, 1896.

Motive power for the Iron Mountain Railway was provided by five H.K. Porter 0-4-4 tank engines, numbered #1-#5. All of the Porter locomotives, ordered between 1895 and 1899 were delivered as wood-burners but were converted to burn oil in 1901. The line’s rolling stock consisted of 72 ore cars, 22 flat cars and two cabooses.

The Mountain Copper Company’s smelter opened in March, 1896. Copper ore from the Iron Mountain mine contained, on average, 45% sulfur and required extensive roasting before it could be smelted. Like most of the smelters in the Shasta copper belt, ore at Keswick was roasted in the open causing a great deal of environmental damage. The narrow gauge delivered ore directly to the roasting stalls from an adjacent elevated trestle. Once sintered, the ore went to the smelter which produced matte copper that was sent to New Jersey for refining.

On December 1, 1896 the Mountain Copper Company LTD was incorporated in London for the purpose of acquiring the Mountain Mines Syndicate’s Shasta County properties which included: the Iron Mountain Railway, the mine and Keswick smelter. The purchase was consummated on January 1, 1897. Mountain Copper’s production steadily increased. By 1904 the capacity of the Keswick smelter had been expanded to 1,000 tons per day, with four furnaces in operation. On a typical day, the Iron Mountain Railway would run five trains consisting of 10 to 17 cars. Although the Iron Mountain Railway was a common carrier, the line charged a minimal amount for ore movements to its parent company and showed a deficit in all but three of the years the line was operated.

Beginning in 1900, the Mountain Copper Company faced litigation from both the federal government and private parties. The suites were brought to recover damages caused by sulfur dioxide emissions resulting from the company’s ore roasting practices. About the same time, the Mountain Copper Company began to supply the Pacific Coast Oil Company at Richmond, California with sulphide ore for the purpose of manufacturing Sulfuric Acid. Under this arrangement, once the oil company had roasted off the sulfur, the residual ore had to be returned to Keswick for smelting. As the demand for sulfuric acid by California oil refineries was on the rise, it was decided to move the Mountain Copper Company’s smelting operations to the San Francisco Bay area. There, the company could fully utilize the sulfur by-product for acid production and also reduce transportation costs.

(Charles Camden purchased from the federal government a 55 acre tract of land in 1873 under the swamp lands act known as then as Bulls Head Point, the place where the Delta of the Rio Bolbonnes (Walnut Creek) flows into the Carquinez Straits, near Martinez. -ed.) In 1905, three furnaces were removed from the Keswick smelter and moved to the new site named Mococo. Also at Mococo were facilities for manufacturing sulfuric acid and fertilizer. A dual-gauge switching railroad was built to serve the new works and two of the Iron Mountain Railway’s Porters, #1 and #5 were transferred to Mococo.

The last furnace at Keswick went cold in 1907. Large ore bins had been erected at the smelter site and ore came direct from the mine and was transferred to standard gauge cars for shipment to Mococo. As the company’s focus changed to chemical manufacturing, mining operations began to shift to the Hornet mine, as ore from that mine had higher sulfur content. Ore was hauled from the Hornet mine, located a mile northeast of Iron Mountain, by way of an incline tram down to the narrow gauge in Boulder Creek Canyon. At the end of the Boulder Creek loop, a spur was extended 600’ up the creek to reach the ore bins at the base of the tram. In 1912 the Mountain Copper Company began to switch to geared locomotives. That year the first of three new Lima Shay engines that were to operate on the Iron Mountain Railway was purchased.

By 1914 hi-grade ore in the Iron Mountain Mine had become exhausted. The Mountain Copper Company built a $500,000 flotation mill halfway between Keswick and Iron Mountain at Minnesota Flat to concentrate the lower grade ores that remained. During the metal mining boom brought on by World War One, the Iron Mountain mine made daily ore shipments of 300 tons to the Minnesota Flat mill by way of the narrow gauge. The concentrates, called copper cement were then hauled to Keswick for transshipment. Another 500 tons of ore was sent from the Hornet Mine to Keswick and on to Mococo for processing.

Copper prices fell at the end of the First World War causing the flotation mill at Minnesota Flat to be closed in 1919. In 1921 the Mountain Copper Company discontinued mining at Iron Mountain and moved all operations to the Hornet Mine. Through the war years the Iron Mountain Railway had been allowed to deteriorate. To avoid spending the large sum of money needed to rehabilitate the narrow gauge, a 12,500’ aerial tramway was built connecting the Hornet Mine to Matheson siding (m.p. 267.2) on the SP. Also in 1921, the machine shop and other railroad facilities, formerly at the smelter site near Keswick, were moved to the Hornet spur location. The Iron Mountain Railway was kept in limited operation as far as the Hornet spur primarily to transport supplies for the Hornet Mine and to serve the Pittsburgh-Mt Shasta Mining Company’s “Little Nellie” mine on Boulder Creek.

The Iron Mountain Railway saw sporadic use through the 1920s. When the Pittsburgh-Mt Shasta operation closed down, the Mountain Copper Company decided that it would no longer be of any benefit to operate the Iron Mountain Railway as a common carrier. The company applied to the California Railroad Commission for permission to abandon service over the narrow gauge and consent was received on February 5, 1927. At that time, the remaining locomotives, with the exception of Shay #8, were moved to Matheson where they were eventually sold or scrapped. The Minnesota Flat mill reopened for a time in 1928 and the line may have been used as late as 1929 to haul materials for the construction of a cyanide plant on Iron Mountain. The Iron Mountain Railway’s fixed plant remained in place until the early 1930s.

As an aside; circa 1918 the Pittsburgh-Mount Shasta Mining Company acquired a Shay locomotive from the Dairy Farm Mining Company. The Shay may have been used on the Iron Mountain Railway or possibly the Pittsburgh-Mount Shasta Mining Company had a rail line to connect their mine and mill, a short distance up Boulder Creek from Hornet siding.

Today you can drive on the Iron Mountain Railway’s roadbed between Minnesota Flat and Iron Mountain on Iron Mountain Road. Both the Iron Mountain Mine location and the Minnesota Flat mill site are marked by large remediation projects, to treat toxic run off from the Mountain Copper Company’s former operations. A handful of small buildings and the mill foundation at Minnesota Flat are the only evidence of what was once California’s largest copper producer.

Revised: September 13, 2015
Aubury, Lewis E., The Copper Resources of California, San Francisco, CA: California State Mining Bureau, 1908.
Borden, Stanly T., The Iron Mountain Railway, The Western Railroader, Vol 34, issue 1, January, 1964.
Diller, J.S., Copper Deposits of the Redding Region, California, Bulletin 213, United States Geological Survey, 1903.
Hilton, George W., American Narrow Gauge Railroads, Stanford, CA: Stanford University Press, 1990. ISBN: 0-8047-2369-9
Kett, William, Fifty years of Operation by the Mountain Copper Company LTD in Shasta County, California, California Journal of Mines and Geology, Vol 43, San Francisco CA: California State Printing Office, 1947.
Mines and Mineral Resources of Shasta County, Siskiyou County, Trinity County California, (reprint of California State Mining Bureau Report, 1915), Josephine County, OR: Gold Rush Books, 2014, ISBN: 9-781497-541399
Polkinghorn, R.S., Pino Grande, Logging Railroads of the Michigan-California Lumber Company, Berkley, CA: Howell-North Books, 1966.
Porter Steam Locomotives, Light & Heavy, Chattanooga, TN: NMRA 2001. ISBN: 0-9647050-3-6
Signor, John R., SP’s Shasta Division, Wilton and Berkley, CA: Signature Press, 2000. ISBN: 1-930013-02-7
Spohr, David, Narrow Gauge to Van Trent, Western Railroader, Fall, 1990,
Weed, Walter H. ed., The Mines Handbook, 1922. Tuckahoe, NY: Mines Handbook Company, 1922.
California Railroad Commission: Report of Value of the Iron Mountain Railway, September 15, 1912.
California Railroad Commission: Profile and alignment maps of the Iron Mountain Railway, June 20, 1912.
Mineral Wealth, Redding, CA, Vol 8, Number 20, January 1, 1907.
Red Bluff Daily News, Red Bluff, CA, various issues.
Salt Lake Mining Review, Salt Lake City, UT, various issues.

Reference Material Available Online:

Equipment Rosters.

Iron Mountain Railway Equipment Roster by Greg Maxwell.

California \ Iron Mountain Railway

Iron Mountain Mine:


Q: How does copper help us?
Copper is the element for producing color in hair and skin, maintaining the elasticity of skin and blood vessels, protecting against certain types of free radical, and allowing us to use oxygen properly for the production of energy. It is necessary for the functioning of nerve cells. The shape and texture of hair, as well as its color, can change in a copper deficiency. Too much iron can block absorption of copper, and not enough copper makes us store too much iron. With aging, our tissues lose copper as they store excess iron. Because of those changes, we need more vitamin E as we age.

Iron Mountain Mines announces supergene enrichment zone copper/gold prospect

In ore deposit geology , supergene processes or enrichment occur relatively near the surface. Supergene processes include the predominance of meteoric water circulation with concomitant oxidation and chemical weathering . The descending meteoric waters oxidize the primary ( hypogene ) sulfide ore minerals and redistribute the metallic ore elements. Supergene enrichment occurs at the base of the oxidized portion of an ore deposit. Metals that have been leached from the oxidized ore are carried downward by percolating groundwater, and react with hypogene sulfides at the supergene-hypogene boundary. The reaction produces secondary sulfides with metal contents higher than those of the primary ore. This is particularly noted in copper ore deposits where the copper sulfide minerals chalcocite , covellite , digenite , and djurleite are deposited by the descending surface waters.


By the common law, in case of an intrusion or deforcement, the party kept out of possession could not sue the wrong-doer by a mode of redress which was calculated merely for injuries committed against the land while in the possession of the owner. But now, by the 6 Ann. c. 18. if a guardian or trustee for any infant, a husband seised jure uxoris, or a person having any estate or interest determinable upon a life or lives, shall, after the determination of their respective interests, hold over and continue in possession of the lands or tenements, without the consent of the person entitled thereto, they are adjudged to be trespassers. See also 4 Geo. 2. c. 18. and 11 Geo. 2. c. 19. as to tenants for years, &c. holding over; and ante, tit. Distress, Rent, Sufferance, &c.

A remainder-man, after entering upon a party in possession by intrusion, may maintain trespass against the intruders, though he retains possession. 1 M. & R. 220 ; 7 B. & C. 399.


Reversed Chronological List of Superfund Enforcement Policy and Guidance Documents

2016   2015   2014   2013   2012   2011   2010   2009   2008   2007   2006   2005   2004   2003   2002   2001   2000   1999   1998   1997   1996   1995   1994   1993   1992   1991   1990   1989   1988   1987   1986   1985   1984   1983  


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Superfund Community Involvement Handbook - (1/29/16)
Provides guidance to EPA staff on how EPA typically plans and implements community involvement activities at Superfund sites. Chapter 5 of the handbook addresses community involvement during Superfund enforcement activities.


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Minor Updates to Property Requirements and other Provisions of the 2014 CERCLA Model Remedial Design/Remedial Action Consent Decree - (9/30/15)
Memorandum specifies the updates made to Section VIII (Property Requirements) and other minor modifications to the September 29, 2014 version of the model Remedial Design/Remedial Action Consent Decree (RD/RA) under CERCLA
http://www2.epa.gov/enforcement/memorandum-updates-model-cercla-rdra-cd-property-requirements-and-other-provisions (PDF 1,000 kb)
Issuance of Revised Model Administrative Settlement Agreement and Order on Consent and Unilateral Administrative Order for for Removal Actions - (9/30/15)
Memorandum transmits two revised model language documents for removal actions under CERCLA.
Issuance of Revised Model Remedial Design/Remedial Action Unilateral Administrative Order and New Statement of Work - (9/30/15)
Transmittal memorandum announcing the issuance of the revised model RD/RA Unilateral Administrative Order (UAO) and the new model RD/RA UAO Statement of Work (SOW). The transmittal memorandum also announces updates to the RD/RA Consent Decree (CD) SOW, originally issued on 9/29/14, to conform to the new UAO SOW.
Transmittal of Revised Policy on the Issuance of Superfund Comfort/Status Letters - (8/25/15)
Transmittal memorandum, guidance, model language sample letters, and appendices regarding the use of Superfund comfort/status letters.
http://www2.epa.gov/enforcement/guidance-revised-policy-issuance-superfund-comfortstatus-letters (PDF 1,000 kb)
Checklist of Information to Include for Consultation on Time-Critical Removal Actions by the Office of Site Remediation Enforcement - (7/8/15)
Memorandum and checklist to expedite consultation on time-critical removal actions.
Guidance on Evaluating a Violator's Ability to Pay a Civil Penalty in an Administrative Enforcement Action - (6/29/15)
Memorandum to regions providing guidance on the process case teams should follow in evaluating ability to pay (ATP) claims and an overview of the Agency's tools to assist in ATP evaluations.
Small Business Resources Information Sheet - (5/1/15)
Document provides an array of resources, including workshops, training sessions, hotlines, websites and guides, to help small businesses understand and comply with federal and state environmental laws. EPA's policy and practice is to include the information sheet to every small business at the time EPA has initial enforcement contact with a small business, including Superfund general and special notice letters and cost recovery demand letters.
CERCLA Financial Assurance Sample Documents-Settlements - (4/6/15)
Access to six sample CERCLA financial assurance documents for use in connection with settlement agreements: (1) trust agreement, (2) guarantee agreement, (3) financial test sample letters, (4) payment bond, (5) performance bond, and (6) letter of credit, are available in Word format from the Cleanup Enforcement Model Language and Sample Documents Database. Select the financial assurance-settlements link within the database to access each of the sample documents.
CERCLA Financial Assurance Sample Documents-Orders - (4/6/15)
Access to six sample CERCLA financial assurance documents for use in connection with unilateral administrative orders: (1) trust agreement, (2) guarantee agreement, (3) financial test sample letters, (4) payment bond, (5) performance bond, and (6) letter of credit, are available in Word format from the Cleanup Enforcement Model Language and Sample Documents Database. Select the financial assurance-orders link within the database to access each of the sample documents.
Guidance on Financial Assurance in Superfund Settlement Agreements and Unilateral Administrative Orders - (4/6/15)
Memorandum transmits guidance, model language, and sample documents that address financial assurance requirements in Superfund cleanup settlement agreements and unilateral administrative orders.
http://www2.epa.gov/enforcement/guidance-financial-assurance-superfund-settlements-and-orders (PDF 498 kb)
Promoting Water, Superfund and Enforcement Collaboration on Contaminated Sediments - (2/12/15)
Memorandum from the Assistant Administrators for Water, Enforcement, and Solid Waste and Emergency Response, encourages improvements in communication, coordination, and collaboration among the three program offices when addressing contaminated sediments.
http://www.epa.gov/wqs-tech/promoting-water-superfund-and-enforcement-collaboration-contaminated-sediments (PDF 1098 kb)


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CERCLA Notice/Demand Sample Letters - (12/23/14)
CERCLA notice/demand sample letter documents available in Word format are available from the Cleanup Enforcement Model Language and Sample Documents Database. Select the notice/demand letters link within the database to access each of the sample documents.
Transmittal of Model Geospatial Data and Electronic Submission of Deliverables Language for Inclusion in CERCLA Statements of Work - (9/29/14)
Transmittal memorandum and model geospatial data language for inclusion in CERCLA statement of work (SOW) documents.
http://www2.epa.gov/enforcement/guidance-model-geospatial-data-language-use-cercla-sows (PDF 2 MB kb)
Issuance of 2014 CERCLA Model Remedial Design/Remedial Action Consent Decree and Statement of Work (PDF) - (9/29/14)
Transmittal memorandum announcing issuance of revised RD/RA CD and the new RD/RA Statement of Work.
http://www2.epa.gov/enforcement/guidance-2014-cercla-rdra-cd-and-sow (PDF 100 kb)
Revisions to 2009 ARC Memo and Issuance of Revised CERCLA Past Cost, Peripheral, De Minimis, De Micromis, and Municipal Solid Waste Settlement Models - (9/26/14)
Transmittal memorandum revises, for purposes of all EPA settlement models issued under CERCLA, certain language included in the March 16, 2009 “ARC Memo” and announces issuance of 13 revised CERCLA judicial and administrative settlement models and two documents containing ability to pay inserts for the de minimis contributor models.
http://www2.epa.gov/enforcement/guidance-revisions-2009-arc-memo-and-issuance-cercla-payment-models (PDF 382 kb)
Revitalizing Contaminated Lands: Addressing Liability Concerns (The Revitalization Handbook) 2014 Edition - (6/5/14)
2014 edition of The Revitalization Handbook summarizes the federal statutory provisions and EPA policy and guidance documents that address the potential liability concerns of parties involved in the cleanup and revitalization of contaminated sites.


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Implementing Institutional Controls in Indian Country - (11/6/13)
Handbook answers questions that EPA regional staff may have on the process of implementing institutional controls (ICs) in Indian country as part of a cleanup project
http://www2.epa.gov/enforcement/handbook-implementing-institutional-controls-indian-country (PDF 110 kb)
Superfund Special Accounts Management Strategy for 2013 - 2015 - (3/15/13)
Updated FY 2013 - 2015 management strategy for Superfund special accounts to ensure that special accounts are used successfully nationwide to support cleanup at contaminated sites.
http://www.epa.gov/superfund/pubs/pdfs/Superfund_Special_Accounts_Management_Strategy_for_2013-2015.pdf (PDF 5,226 kb)
Timing and Procedures for Review of Certain Time-Critical Removal Actions by EPA Headquarters Offices - (2/26/13)
Memorandum addresses circumstances when regional offices should consult with EPA HQ regarding time critical removal actions.
http://www2.epa.gov/enforcement/guidance-hq-review-certain-time-critical-removal-actions-timing-and-procedures (PDF 205 kb)


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Use of CERCLA Section 122(b)(3) Special Accounts at RCRA Corrective Action Sites - (12/20/12)
Memorandum providing direction to the Regions on the scope of EPA's ability to retain and use funds in special accounts for the oversight of RCRA cleanups.
http://www2.epa.gov/enforcement/guidance-use-superfund-special-accounts-rcra-corrective-action-sites (PDF 280 kb)
Clean Water Act § 402 National Pollutant Discharge Elimination System (NPDES) Permit Requirements for - (12/12/12)
Memorandum describes two clarifications, one under CERCLA and one under the CWA to provide clarification regarding permit obligations for Good Samaritans.
http://www.epa.gov/npdes/2012-good-samaritan-memorandum (PDF 1.71 kb)
Questions and Answers: Clean Water Act § 402 National Pollutant Discharge Elimination System (NPDES) Permit Requirements for “Good Samaritans” at Orphan Mine Sites: December 12, 2012 - (12/12/12)
Questions and Answers for the Clean Water Act § 402 National Pollutant Discharge Elimination System (NPDES) Permit Requirements for “Good Samaritans” at Orphan Mine Sites issued December 2012
http://www.epa.gov/npdes/2012-good-samaritan-memorandum (PDF 24 kb)
Model No Previous Federal Interest Comfort/Status Letter - RE-Powering America's Land Initiative - (12/5/12)
Model document comfort/status letter regarding no previous federal interest for renewable energy development.
http://cfpub.epa.gov/compliance/models/view.cfm?model_ID=693 (PDF 37 kb)
Model State Action Comfort/Status Letter - RE-Powering America's Land Initiative - (12/5/12)
Model document comfort/status letter regarding state-lead sites and renewable energy development.
http://cfpub.epa.gov/compliance/models/view.cfm?model_ID=735 (PDF 39 kb)
Model Federal Superfund Interest and No Current Federal Superfund Interest Comfort/Status Letter - (12/5/12)
Model document for comfort/status letter regarding federal interest or no current federal interest regarding renewable energy development.
http://www2.epa.gov/enforcement/guidance-treatment-tenants-under-cerclas-bona-fide-prospective-purchaser-bfpp-provision (PDF 65 kb)
Revised Enforcement Guidance Regarding the Treatment of Tenants Under the CERCLA Bona Fide Prospective Purchaser Provision - (12/5/12)
Revised guidance addresses how EPA intends to use its enforcement discretion to treat certain tenants as BFPPs under Superfund.
http://www2.epa.gov/enforcement/guidance-treatment-tenants-under-cerclas-bona-fide-prospective-purchaser-bfpp-provision (PDF 543 kb)
Transmittal of “Revised Enforcement Guidance Regarding the Treatment of Tenants Under the CERCLA Bona Fide Prospective Purchaser Provision” and Model Comfort/Status Letters for Lessees at Renewable Energy Projects - (12/5/12)
Transmittal memorandum, guidance and three model documents addressing the potentiall applicability of the BFPP provision under Superfund to tenants.
http://www2.epa.gov/enforcement/guidance-treatment-tenants-under-cerclas-bona-fide-prospective-purchaser-bfpp-provision (PDF 687 kb)
Institutional Controls: A Guide to Planning, Implementing, Maintaining, and Enforcing Institutional Controls at Contaminated Sites - (12/4/12)
Guidance for site managers, attorneys and other interested parties for planning, implementing, maintaining and enforcing (PIME) institutional controls for Superfund, brownfields, UST, RCRA, and federal facility cleanups.
http://semspub.epa.gov/src/document/HQ/175446 (PDF 451 kb)
Institutional Controls: A Guide to Preparing Institutional Control Implementation and Assurance Plans at Contaminated Sites - (12/4/12)
Guidance to the EPA Regions for developing Institutional Control Implementation and Assurance Plans (ICIAPs) at contaminated sites where the response action includes an institutional controls (ICs) component. An ICIAP is a document designed to systematically: (a) establish and document the activities associated with implementing and ensuring the long-term stewardship of ICs: and (b) specify the persons and/or organizations that will be responsible for conducting these activities.
http://semspub.epa.gov/src/document/HQ/175449 (PDF 159 kb)
Revised Policy on Managing the Duration of Remedial Design/Remedial Action Negotiations - (9/28/12)
Memorandum sets forth revised procedures for managing the duration of remedial design/remedial action (RD/RA) negotiations.
http://www2.epa.gov/enforcement/guidance-managing-duration-rdra-negotiations-revised (PDF 329 kb)
Transmittal of Updated Superfund Response and Settlement Approach for Sites Using the Superfund Alternative Approach (SAA Guidance) - (9/28/12)
Transmittal memorandum and updated guidance on the selection of and settlements using the Superfund Alternative Approach to ensure consistency between the NPL sites and sites with SAA agreements. OSWER Directive No. 9200.2-125
http://www2.epa.gov/enforcement/transmittal-memo-updated-superfund-response-and-settlement-approach-sites-using (PDF 401 kb)
Effective Utilization of Superfund Special Accounts - (4/22/12)
Joint memorandum outlining the steps taken to improve the management and use of Superfund special accounts.
http://semspub.epa.gov/src/document/HQ/175865 (PDF 2.69 kb)
Promoting Enforcement First for Remedial Investigation / Feasibility Studies at Superfund Sites - (3/20/12)
Memorandum reaffirms EPA's commitment to having potentially responsible parties conduct RI/FS at Superfund sites whenever appropriate.
http://www2.epa.gov/enforcement/guidance-promoting-enforcement-first-rifs-superfund-sites (PDF 385 kb)
Revised Guidance on Procedures for Submission and Review of - (2/23/12)
Guidance describes the contents of reimbursement petitions and theprocedures that EPA uses in adjudicating reimbursement petitions.
http://yosemite.epa.gov/oa/EAB_Web_Docket.nsf/8f612ee7fc725edd852570760071cb8e/cb29b85f99cbdc0885257afd0054d517/$FILE/CERCLA%20Guidance%2002-23-12%20FINAL.pdf (PDF 56 kb)
Final Implementation of the National Strategy to Manage Post Construction Completion - (2/16/12)
Summarizes the results of the Post-Construction Completion (PCC) Strategy, which was implemented from 2005 to 2011. EPA closed out the PCC Strategy with this final report since the elements of the PCC Strategy have become EPA’s way of doing business for the Superfund program.
Use of Special Account Funds to Facilitate Work Settlements with Potentially Responsible Parties and to Expedite the Cleanup of Superfund Sites - (1/26/12)
Use of Special Accounts in settlements with PRPs to expedite cleanup at Superfund sites.
http://www2.epa.gov/enforcement/guidance-using-special-account-funds-facilitate-work-settlements-prps-and-expedite (PDF 601 kb)


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Enforcement Discretion Guidance Regarding the Affiliation Language of CERCLA's Bona Fide Prospective Purchaser and Contiguous Property Owner Liability Protections - (9/21/11)
Memorandum assists EPA personnel in, on site-specific basis, exercising the Agency's enforcement discretion regarding the affiliation language contained in the Superfund statute.
http://www2.epa.gov/enforcement/guidance-affiliation-language-cerclas-bfpp-and-cpo-liability-protections (PDF 180 kb)
Enforcement First for Removal Actions - (8/4/11)
Memorandum addresses enforcement first policy for removal actions.
http://www2.epa.gov/enforcement/guidance-enforcement-first-removal-actions (PDF 251 kb)
Options for Responding to Deficient Deliverables from PRPs - (6/30/11)
Memorandum transmitting sample letters for Regions to use when addressing deficient deliverables with potentially responsible parties.
http://www2.epa.gov/enforcement/guidance-options-responding-deficient-deliverables-prps (PDF 386 kb)
Transmittal of Preliminary Potentially Responsible Party Search Completion Measure Definition for Incorporation into the Superfund Program Implementation Manual for FY2012 - (6/23/11)
Guidance to regions on documenting preliminary PRP search completion activities
http://www2.epa.gov/enforcement/guidance-preliminary-prp-search-completion-measure-definition-and-superfund-program (PDF 338 kb)
Model Notifications to Headquarters of Milestone Special Accounts Transactions - (4/22/11)
Memorandum announces changes to special account notification process and provides model notification emails and memorandum.
http://www2.epa.gov/enforcement/guidance-notification-process-milestone-special-accounts-transactions (PDF 373 kb)
PRP Search Documentation Summary Requirements for Decision Documents to Not Pursue Cost Recovery Where Unaddressed past Costs are Greater Than $200,000 - (3/8/11)
Guidance establishing standard and mandatory PRP search documentation requirements in decision documents.
http://www2.epa.gov/enforcement/guidance-documenting-prp-search-decision-documents-and-unaddressed-cost-recoveries (PDF 353 kb)


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Guidance on the Planning and Use of Special Account Funds - (9/28/10)
guidance addresses the appropriate uses of settlement resources that are deposited in special accounts for future use. OSWER Directive 9275.1-20.
http://www2.epa.gov/enforcement/guidance-planning-and-use-superfund-special-account-funds (PDF 552 kb)
Revised Guidance on Compiling Administrative Records for CERCLA Response Actions - (9/20/10)
Memorandum sets forth the policy and procedures for compiling and maintaining administrative records in connection with Superfund response actions.
http://www2.epa.gov/enforcement/guidance-compiling-administrative-records-superfund-response-actions (PDF 748 kb)
EPA's Continued Efforts to Enhance CERCLA Cost Recovery - (7/2/10)
Memorandum highlights important cost recovery practices and encourages Regions to reevaluate their Superfund cost recovery programs.
http://www2.epa.gov/enforcement/guidance-efforts-enhance-cercla-cost-recovery (PDF 267 kb)
Clarification of CERCLA Entry Policy - (3/3/10)
Memorandum provides Regional Counsel with a clarification to EPA 1987 access policy regarding the savings provision in section 104(e)(6) of Superfund.
http://www2.epa.gov/enforcement/guidance-clarification-superfund-entry-policy (PDF 165 kb)


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Model CERCLA Section 107(q)(3) Contiguous Property Owner Assurance Letter - (11/9/09)
Model contiguous property owner assurance letter to be used in accordance with January 2004 interim guidance regarding contiguous property owners. Includes transmittal memorandum.
http://www2.epa.gov/enforcement/model-contiguous-property-owner-assurance-letter (PDF 20 kb)
PRP Search Manual - 2009 (including 2011 addendum) Edition Amended - (9/30/09)
2011 version of the 2009 edition of the PRP search manual with an updated Appendix 6 which informs users of the information sources to locate PRPs. (Updated appendix 6 - PRPPIIS)
http://www2.epa.gov/enforcement/report-prp-search-manual-2009-edition-2011-addendum (PDF 17,253 kb)
Interim Guidance: Providing Communities with Opportunities for Independent Technical Assistance in Superfund Settlements - (9/3/09)
Transmittal memorandum and six attachments provide guidance on Technical Assistance Plan (TAP) provisions in Superfund settlements. Six Attachments include: model TAP language for AOCs for RI/FS and CDs for RD/RA using Superfund Alternative Approach; Sample language for TAP language in settlement SOW; FAQs about TAPs; Sample application by community group for TAP; Sample langague for PRP TAP; and Sample directive by Community Group for specific tasks by Technical Advisor
http://www2.epa.gov/enforcement/interim-guidance-opportunities-independent-technical-assistance-superfund-settlements (PDF 375 kb)
Guidance on Determining and Tracking Substantial Noncompliance with CERCLA Enforcement Instruments in CERCLIS - (8/24/09)
Transmittal memorandum and guidance defining substantial noncompliance with CERCLA enforcement instruments and the process for tracking in the noncompliance in CERCLIS.
http://www2.epa.gov/enforcement/guidance-determining-and-tracking-superfund-enforcement-substantial-noncompliance (PDF 109 kb)
Revised Penalty Matrix for CERCLA Section 106(b)(1) Civil Penalty Policy - (7/17/09)
2009 updated matrix for the CERCLA section 106(b)(1) penalty policy. Supplements the 4/20/2005 revised penalty matrix.
http://www2.epa.gov/enforcement/guidance-updated-penalty-matrix-cercla-section-106b1-civil-penalty-policy (PDF 28 kb)
Interim Revisions to CERCLA Judicial and Administrative Settlement Models to Clarify Contribution Rights and Protection from Claims Following the Aviall and Atlantic Research Corporation Decisions - (3/16/09)
Memorandum issuing interim revisions to the judicial and administrative settlement models issued under CERCLA to clarify certain contribution rights and protection from claims and certain other language following Supreme Court's decisions.
http://www2.epa.gov/enforcement/model-interim-revisions-superfund-settlement-models-clarify-contribution-rights-and (PDF 84 kb)
Revised Guidance on Reclassification on Superfund Special Accounts - (1/23/09)
Memorandum provides revised guidance on reclassification of special accounts. Supersedes portions of prior Agency documents related to the reclassification of special accounts. Transmittal memorandum contains four attachments, including model language for regional notice to HQ on plans to reclassify funds. Portion of this memorandum superseded in 2011.
http://www2.epa.gov/enforcement/guidance-reclassification-superfund-special-accounts-revised-guidance (PDF 191 kb)


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Model Notice Approving Reduction in Settlement Amount Based on Inability to Pay - (4/30/08)
Model notice letter regarding approving reduction in settlement amount based on inability to pay.
http://www2.epa.gov/enforcement/model-notice-approving-reduction-settlement-amount-based-inability-pay (PDF 48 kb)
Model Notice Denying Reduction in Settlement Amount Based on Inability to Pay - (4/30/08)
Model notice letter regarding denying reduction in settlement amount based on inability to pay.
http://www2.epa.gov/enforcement/model-notice-denying-reduction-settlement-amount-based-inability-pay (PDF 43 kb)
Model Notice of Eligibility to Receive a De Minimis Party Settlement - (4/30/08)
Model notice letter regarding eligibility to receive a de minimis party settlement.
http://www2.epa.gov/enforcement/model-notice-eligibility-receive-de-minimis-party-settlement (PDF 46 kb)
Sample General Notice Letter for a Site at which the Superfund Alternative Approach may be Used - (4/30/08)
Sample model general notice letter for use at a site that may use the Superfund alternative approach.
http://cfpub.epa.gov/compliance/models/view.cfm?model_ID=652 (PDF 57 kb)
Sample General Notice Letter - (4/30/08)
Sample model general notice letter to potentially responsible parties.
http://cfpub.epa.gov/compliance/models/view.cfm?model_ID=394 (PDF 51 kb)
Interim Revisions to CERCLA Notice Letters and Update of Superfund and Small Waste Contributors Brochure to Notify Potential Settlors about Atlantic Research Corporation Decision - (4/30/08)
Transmittal memorandum and six model documents and a brochure regarding contribution claims afforded by de minimis settlements after the Supreme Court's decision in Atlantice Research Corporation.
http://www2.epa.gov/enforcement/guidance-update-superfund-notice-letters-and-small-waste-contributors-brochure-based-arc (PDF 252 kb)
Windfall Lien Administrative Procedures: Frequent Questions - (4/16/08)
Freqently asked questions related to the January 2008 Windfall Lien Administrative Procedures Guidance.
http://www2.epa.gov/enforcement/fact-sheet-frequent-questions-regarding-cercla-section-107r-windfall-liens (PDF 57 kb)
Model Notice of Intent to File a Windfall Lien Letter - (1/8/08)
Model notice of intent to file a windfall lien letter (attachment to Windfall lien administrative procedures memorandum).
http://www2.epa.gov/enforcement/model-notice-intent-file-windfall-lien-letter (PDF 89 kb)
Windfall Lien Administrative Procedures - (1/8/08)
Transmittal memorandum and attachments addressing implementation of section 107(r) of Superfund, the windfall lien provision on property acquired by a bona fide prospective purchaser.
http://www2.epa.gov/enforcement/guidance-windfall-lien-administrative-procedures-107r-lien-and-model-letter-providing (PDF 921 kb)


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CERCLA Lender Liability Exemption: Updated Questions and Answer - (7/1/07)
Updated fact sheet highlights the main rules and EPA policy governing CERCLA environmental liability for secured creditors for the cleanup of contaminated property.
http://www2.epa.gov/enforcement/fact-sheet-updated-questions-and-answers-cercla-lender-liability-exemption (PDF 62 kb)
Good Samaritan Administrative Tools - Fact Sheet - (6/6/07)
Fact Sheet on the interim administrative tools for the Good Samaritan Initiative.
Interim Guiding Principles for Good Samaritan Projects at Orphan Mine Sites and Transmittal of CERCLA Administrative Tools for Good Samaritans - (6/6/07)
Memorandum intended to assist the Regions in the implementation of the Good Samaritan Initiative and focuses on administrative tools developed under CERCLA.
http://www2.epa.gov/enforcement/interim-guidance-cercla-administrative-tools-good-samaritans-orphan-mine-sites (PDF 160 kb)
Model Good Samaritan Comfort/Status Letter - (6/6/07)
Model language for good samaritan initiative comfort/status letter is available from the Cleanup Enforcement Model Language and Sample Documents Database.
http://cfpub.epa.gov/compliance/models/view.cfm?model_ID=736 (PDF 16 kb)
Model Good Samaritan Settlement Agreement and Order on Consent for Removal Actions at Orphan Mine Sites - (6/6/07)
Model language for good samaritan settlement agreement and order on consent for removal actions at orphan mine sites.
http://www2.epa.gov/enforcement/interim-guidance-cercla-administrative-tools-good-samaritans-orphan-mine-sites (PDF 88 kb)
Superfund Oversight Guidance - (1/24/07)
Transmittal memorandum for two guidance documents addressing Superfund oversight: site specific conditions and prepayment of oversight and site specific accounts.
http://www2.epa.gov/enforcement/guidance-superfund-oversight-policies (PDF 503 kb)


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Additional Guidance on Prepayment of Oversight Costs and Special Accounts - (12/22/06)
Memorandum providing additional guidance on the prepayment of oversight costs. Sample settlement language for the prepayment of oversight costs attached.
http://www2.epa.gov/enforcement/guidance-prepayment-oversight-costs-and-special-accounts (PDF 116 kb)
Using RCRA's Results-Based Approaches and Tailored Oversight Guidance when Performing Superfund Oversight - (12/22/06)
Memorandum providing additional information in support of Superfund's administrative reform on PRP oversight. Superfund program managers should consider RCRA's Results-Based Guidance when developing oversight plans with PRPs.
http://www.epa.gov/enforcement/guidance-using-rcras-results-based-approaches-and-tailored-oversight-guidance-when (PDF 368 kb)
Brownfield Sites and Supplemental Environmental Projects (SEPs) - (11/30/06)
Fact sheet providing questions and answers on the complementary role of supplemental environmental projects (SEPs) at brownfield sites. This document supersedes the 1998 document on Brownfields and SEPs.
http://www2.epa.gov/enforcement/fact-sheet-brownfield-sites-and-supplemental-environmental-projects (PDF 78 kb)
CERCLA Model Agreement and Order on Consent for Removal Action by Bona Fide Prospective Purchaser - (11/27/06)
CERCLA Model Agreement and Order on Consent for Removal Action by a Bona Fide Prospective Purchaser (BFPP).
http://www2.epa.gov/enforcement/guidance-model-bfpp-agreement-removal-action (PDF 201 kb)
Issuance of CERCLA Model Agreement and Order on Consent for Removal Action by a Bona Fide Prospective Purchaser - (11/27/06)
Transmittal memorandum and CERCLA model agreement and order on consent for removal action by a bona fide prospective purchaser (BFPP).
http://www2.epa.gov/enforcement/guidance-model-bfpp-agreement-removal-action (PDF 242 kb)
Enforcement First to Ensure Effective Institutional Controls at Superfund Sites - (3/17/06)
Memorandum on enforcement first policy and application to any actions needed to ensure the implementation and effectiveness of institutional controls.
http://www2.epa.gov/enforcement/guidance-enforcement-first-policy-superfund-institutional-controls (PDF 51 kb)


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Institutional Controls Bibliography: Institutional Controls, Remedy Selection, and Post-Construction Completion Guidance and Policy - (12/1/05)
Reference document, providing citations and brief synopses for policy guidelines concerning the use of institutional controls.
http://semspub.epa.gov/src/document/HQ/175442 (PDF 108 kb)
U.S. Corps of Engineers (COE) Letters to California, Texas, and Illinios Regarding Munitions on Closed Ranges - (10/21/05)
Restatement of EPA's position that DOD has an obligation at closed ranges to cleanup munitions pursuant to state and federal statutory environmental cleanup authorities and that DOD's
http://www.epa.gov/enforcement/munitions-closed-military-range (PDF 49 kb)
National Strategy to Manage Post Construction Completion Activities at Superfund Sites - (10/12/05)
The Post Construction Completion National Strategy assures that CERCLA remedies continue to protect human health and the environment over the long term. Final report issued 2/16/2012.
http://semspub.epa.gov/src/document/HQ/174761 (PDF 240 kb)
Enforcement First at Superfund Sites: Negotiation and Enforcement Strategies for Remedial Investigation/Feasibility Studies (RI/FS) - (8/9/05)
Memorandum confirms EPA's commitment for PRPs to conduct RI/FS wherever appropriate and encourages Regions to conduct early and thorough PRP searches.
http://www2.epa.gov/enforcement/guidance-enforcement-first-superfund-sites-negotiation-and-enforcement-strategies-rifs (PDF 62 kb)
Interim Revisions to CERCLA Removal, RI/FS and RD AOC Models to Clarify Contribution Rights and Protection Under Section 113(f) (includes Transmittal Memorandum) - (8/3/05)
Transmittal memorandum attaching interim revisions to three EPA model AOCs - Removal, RI/FS and RD to clarify contribution rights and protection under CERCLA section 113(f). Modified by 3/16/09 Interim Revisions to CERCLA Judicial and Administrative Settlement Models to Clarify Contribution Rights and Protection from Claims Following the Aviall and ARC Decisions.
http://www2.epa.gov/enforcement/guidance-cercla-removal-rifs-and-rd-aoc-model-revisions-clarify-contribution-rights (PDF 147 kb)
Interim Protocol for Coordination of Bankruptcy Matters under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) - (5/10/05)
Transmittal memorandum and Interim protocol for coordination of bankruptcy matters between headquarters and Regional offices.
http://www2.epa.gov/enforcement/guidance-coordination-bankruptcy-matters-under-cercla-interim-protocol (PDF 88 kb)
Revised Penalty Matrix for CERCLA Section 106(b)(1) Civil Penalty Policy - (4/20/05)
Memorandum transmits the updated penalty matrix to the CERCLA Section 106(b)(1) penalty policy issued Sept. 30, 1997. Supplemented by July 2009 matrix.
http://www2.epa.gov/enforcement/guidance-revised-penalty-matrix-cercla-section-106b1-civil-penalty-policy (PDF 34 kb)
Evaluation of Superfund Alternative Sites Approach - (4/1/05)
Memorandum outlining the goals and phases of the SAS guidance evaluation process.
http://www2.epa.gov/enforcement/guidance-evaluation-superfund-alternative-sites-approach (PDF 28 kb)
Institutional Controls: A Citizen's Guide to Understanding Institutional Controls at Superfund, Brownfields, Federal Facilities, Underground Storage Tanks, and Resource Conservation and Recovery Act Cleanups - (2/1/05)
Fact Sheet provides community members with general information about the role of institutional controls (ICs) in Superfund, Brownfields, Federal Facilities, Underground Storage Tanks (UST) and Resource Conservation and Recovery Act (RCRA) cleanups occurring in their neighborhoods.
http://semspub.epa.gov/src/document/HQ/175444 (PDF 98 kb)
Issuance of Final Model Administrative Order on Consent for Remedial Design - (1/6/05)
Transmittal memorandum and model administrative order on consent for remedial designs.
http://www2.epa.gov/enforcement/model-administrative-order-consent-remedial-design-0 (PDF 206 kb)


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Model Application/Information Request for the Service Station Dealer Exemption under Section 114(c) of CERCLA - (11/8/04)
Transmittal memorandum and model language document application/information request for service station dealers exemption under CERCLA
http://www2.epa.gov/enforcement/model-applicationinformation-request-service-station-dealer-exemption-under-cercla (PDF 55 kb)
Strategy to Ensure Institutional Control Implementation at Superfund Sites - (10/7/04)
Five year plan for implementation of instititutional controls at Superfund sites.
http://www2.epa.gov/enforcement/guidance-ensuring-implementation-institutional-controls-superfund-sites (PDF 115 kb)
Transmittal of Supplemental Environmental Projects - Green Building on Contaminated Properties - (7/27/04)
Transmittal memorandum and fact sheet on supplemental environmental projects to promote redevelopment on contaminated properties.
http://www2.epa.gov/enforcement/fact-sheet-seps-and-green-building-contaminated-properties (PDF 67 kb)
Transmittal of Guidance on Issuing CERCLA Section 104(e)(2) Information Requests to Federal Agencies at Privately-owned Superfund Sites - (6/14/04)
Guidance on information requests to federal agencies at privately-owned superfund sites. Attachment A contains the list of federal PRP points of contacts dated October 2003.
http://www2.epa.gov/enforcement/guidance-issuing-superfund-104e2-information-requests-federal-agencies-privately-owned (PDF 126 kb)
Model Notice of Ineligibility to Receive a De Minimis Party Settlement - (5/17/04)
Attachment C to Interim Guidance on the Ability to Pay and De Minimis Revisions to CERCLA 122(g) by the 2002 Brownfields Amendments
http://www2.epa.gov/enforcement/model-notice-ineligibility-receive-de-minimis-party-settlement (PDF 24 kb)
Interim Guidance on the Ability to Pay and De Minimis Revisions to CERCLA Section 122g by the Small Business Liability Relief and Brownfields Revitalization Act - (5/17/04)
Guidance document and four model notice documents on ability to pay and de minimis revisions to CERCLA 122(g) under the 2002 Brownfields Amendments
http://www2.epa.gov/enforcement/guidance-ability-pay-and-de-minimis-revisions-cercla-section-122g (PDF 150 kb)
Transmittal of Institutional Controls: Third-Party Beneficiary Rights in Proprietary Controls - (4/19/04)
Transmittal memorandum and document address information on designating third-party beneficiaries in proprietary institutional controls
http://www2.epa.gov/enforcement/guidance-third-party-beneficiary-rights-proprietary-institutional-controls (PDF 123 kb)
Issuance of CERCLA Model Administrative Order Directing Compliance With Request For Access - (4/8/04)
Transmittal memo and model language for EPA access to property where the Agency is unable to get such access on a consensual basis.
http://www2.epa.gov/enforcement/model-administrative-order-directing-compliance-request-access (PDF 84 kb)
Sample Demand Letter - (3/29/04)
Sample model letter - demand for reimbursement of costs expended at a Superfund site available to download in Word from cleanup enforcement models database.
http://cfpub.epa.gov/compliance/models/view.cfm?model_ID=392 (PDF 35 kb)
Fact Sheet: Superfund Ready for Reuse Determination Guidance - (2/12/04)
Fact sheet to accompany Superfund ready for reuse determination guidance, OSWER Dir. 9365.0-33-FS.
http://semspub.epa.gov/src/document/HQ/175568 (PDF 218 kb)
Guidance for Preparing Superfund Ready for Reuse Determinations - (2/12/04)
Transmittal memorandum and guidance for preparing Superfund ready for reuse determinations. OSWER Dir. 93654.0-33
http://www2.epa.gov/enforcement/guidance-preparing-superfund-ready-reuse-determinations (PDF 165 kb)
Contiguous Property Owner Guidance Reference Sheet - (2/5/04)
Reference sheet to accompany contiguous property owner's interm guidance addressing liability limitations.
http://www2.epa.gov/enforcement/interim-guidance-enforcement-discretion-regarding-contiguous-property-owners (PDF 55 kb)
Issuance of Revised Model Administrative Order on Consent for Remedial Investigation and Feasibility Study - (1/21/04)
Model guidance when drafting and negotiating agreements to perform remedial investigations and feasibility studies (RI/FS).
http://www2.epa.gov/enforcement/model-aoc-rifs (PDF 253 kb)
Interim Enforcement Discretion Guidance Regarding Contiguous Property Owners - (1/13/04)
Memo addresses interim guidance regarding liability limitation for landowners who qualify as contiguous property owners as provided for in the 2002 Brownfields Amendments to CERCLA.
http://www2.epa.gov/enforcement/interim-guidance-enforcement-discretion-regarding-contiguous-property-owners (PDF 88 kb)


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Guidance on the Resolution of Post-ROD Dispute - (11/25/03)
Memorandum to confirm the resolution of the post- Record of Decision (ROD) Dispute as described in the October 2, 2003 letter from Raymond Dubois, Jr., Deputy Under Secretary of Defense.
http://www.epa.gov/enforcement/guidance-resolution-post-record-decision-rod (PDF 742 kb)
Interim Guidance on the Municipal Solid Waste Exemption Under CERCLA Section 107(p) - (8/20/03)
This interim guidance discusses CERCLA section 107(p) and identifies some factors EPA and DOJ will consider in exercising enforcement discretion with MSW generators at NPL sites. Supplements the 12/6/1989 and 2/5/1998 municipal settlement policy documents.
http://www2.epa.gov/enforcement/interim-guidance-municipal-solid-waste-exemption-under-superfund (PDF 1,334 kb)
Issuance of Revised Model CERCLA Section 122(g)(4) De Minimis Contributor Consent Decree and Administrative Order on Consent and New Model Ability to Pay Provisions for Use in De Minimis Settlements (Cover Memo and All Attachments) - (8/12/03)
Cover memorandum and four attachments containing model language for de minimis settlement consent decrees and/or administrative orders and ability to pay provisions in de minimis settlements for ability to pay and non-ability to pay parties.
http://www2.epa.gov/enforcement/issuance-revised-model-cercla-section-122g4-de-minimis-contributor-consent-decree-and (PDF 814 kb)
Windfall Lien Guidance: Frequently Asked Questions - (7/16/03)
FAQs sheet containing questions and answers to the interim windfall liens guidance
http://www2.epa.gov/enforcement/interim-guidance-enforcement-discretion-concerning-windfall-liens-cercla-section-107r (PDF 157 kb)
Interim Enforcement Discretion Policy Concerning Windfall Liens Under Section 107(r) of CERCLA - (7/16/03)
This memorandum discusses EPA and DOJ interim policy implementation of the new CERCLA 107(r) windfall lien provision contained in the 2002 Brownfields Amendments.
http://www2.epa.gov/enforcement/interim-guidance-enforcement-discretion-concerning-windfall-liens-cercla-section-107r (PDF 386 kb)
Policy on Listing Mixed Ownership Mine or Mill Sites Created as a Result of the General Mining Law of 1872 on the Federal Agency Hazardous Waste Compliance Docket - (6/24/03)
Memorandum addresses the issue of when mixed ownership mill or mine sites created under the General Mining Law should be listed on the CERCLA 120 hazardous waste compliance docket.
http://www.epa.gov/fedfac/policy-listing-mixed-ownership-mine-or-mill-sites-created-result-general-mining-law-1872 (PDF 280 kb)
Interim Guidance Regarding Criteria Landowners Must Meet in Order to Quality for Bona Fide Prospective Purchaser, Contiguous Property Owner, or Innocent Landowner Limitations on CERCLA Liability (Common Elements) - (3/6/03)
Provides general guidance on the common elements of the landowner liability protections.
http://www2.epa.gov/enforcement/interim-guidance-common-elements-landowner-criteria-qualify-bfpp-cpo-or-ilo-superfund (PDF 289 kb)
Common Elements Guidance Reference Sheet - (3/6/03)
Reference sheet highlights the main points made in EPA's March 2003 "Interim Guidance Regarding Criteria Landowners Must Meet in Order to Quality for the Bona Fide Prospective Purchaser, Contiguous Property Owner, or Innocent Landowner Limitations on CERCLA Liability"
http://www2.epa.gov/enforcement/interim-guidance-common-elements-landowner-criteria-qualify-bfpp-cpo-or-ilo-superfund (PDF 205 kb)
Regional Determinations Regarding Which Sites Are Not 'Eligible Response Sites' under CERCLA Section 101(41)(C)(i), as added by SBLRBRA - (3/6/03)
This memo provides guidance to the Regions on implementing authorities to determine whether a site should be excluded from being an "eligible response site" under Section 101(41)(C)(i), OSWER Dir. 9230.1-107, dated Mar. 6, 2003
http://www2.epa.gov/enforcement/guidance-regional-determinations-regarding-eligible-response-sites (PDF 384 kb)


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Amendment to the October 2, 2001 Memorandum entitled Compromise of, and Termination of Collection Activity on, Post-Settlement and Post-Judgment Superfund Debts - (11/25/02)
Memo clarifies two issue addressed in the October 2001 Compromise Memo and includes model compromise letter
http://www2.epa.gov/enforcement/guidance-post-settlement-and-post-judgment-superfund-debts-collection-and-termination (PDF 239 kb)
Revised Settlement Policy and Contribution Waiver Language Regarding Exempt De Micromis and Non-Exempt De Micromis Parties - (11/6/02)
Memo transmits revised policy & model contribution waiver language re new Small Business Liability Relief and Brownfields Revitalization Act. Includes 5 attachments of model language.
http://www2.epa.gov/enforcement/guidance-settlement-policy-contribution-waiver-language-regarding-de-micromis-parties (PDF 480 kb)
Consolidated Guidance on the Establishment, Management and Use of CERCLA Special Accounts - (10/4/02)
Guidance serves as a reference guide for issues involving the deposit and use of special accounts
http://www2.epa.gov/enforcement/guidance-establishment-management-and-use-superfund-special-accounts (PDF 195 kb)
Enforcement First for Remedial Action at Superfund Sites - (9/20/02)
Request RAs to re-double their attention to ensure the continued implementation of the "enforcement first" policy at Superfund sites in their Regions.
http://www2.epa.gov/enforcement/guidance-enforcement-first-remedial-action-superfund-sites (PDF 115 kb)
Superfund Recycling Equity Act of 1999: Factors to Consider in a CERCLA Enforcement Case - (8/31/02)
Guidance addresses some of the key factors the Agency may consider, and has been developed in the exercise of the Agency's enforcement discretion.
http://www2.epa.gov/enforcement/guidance-superfund-recycling-equity-act-exemption-factors (PDF 178 kb)
Superfund Accounts Receivable: Collection Actions for Delinquent Accounts - (8/20/02)
This guidance supersedes the Agency's interim guidance titled Delinquent Accounts Receivable: Interim Guidance on the Referral Process and Timing for Collection of Delinquent Debts Arising under Superfund Judicial or Administrative Settlements.
http://www2.epa.gov/enforcement/guidance-collection-actions-delinquent-superfund-accounts (PDF 1260 kb)
Orphan Share Reform Implementation Update No. 3 - (8/8/02)
Third update memorandum regarding implementation of orphan share reform
http://www2.epa.gov/enforcement/guidance-updates-implementation-orphan-share-reform (PDF 144 kb)
CERCLA Future Response Costs: Settlement, Billing and Collection - (6/20/02)
This memorandum addresses some of the most common issues that arise with the billing and collection of future response costs.
http://www2.epa.gov/enforcement/guidance-cercla-future-response-costs-settlement-billing-and-collection (PDF 189 kb)
Bona Fide Prospective Purchasers and the New Amendments to CERCLA - (5/31/02)
Describes when, primarily because of significant public health, EPA will consider providing a prospective purchaser with a covenant not to sue under the 2002 amendments to the Superfund statute.
http://www2.epa.gov/enforcement/guidance-bfpps-and-new-amendments-cercla (PDF 129 kb)
Use of CERCLA Section 114(c) Service Station Dealers Exemption - (5/31/02)
Interim final policy providing a brief description of the service station dealer exemption under CERCLA for accepting used motor oil from do-it-yourselfer recyclers.
http://www2.epa.gov/enforcement/guidance-superfunds-service-station-dealers-exemption (PDF 997 kb)
Use of Federal Superfund Liens to Secure Response Costs - (5/28/02)
Memorandum addresses the use of liens in appropriate Superfund enforcement cases pursuant to CERCLA section 107(l).
http://www2.epa.gov/enforcement/guidance-using-federal-superfund-liens-secure-response-costs (PDF 41 kb)


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Compromise of, and Termination of Collection Activity on, Post-Settlement and Post-Judgment of Superfund Debts - (10/2/01)
Memorandum discusses legal authority to compromise and terminate collection activity on debts arising out of Superfund settlement and judgments.
http://www2.epa.gov/enforcement/guidance-post-settlement-and-post-judgment-superfund-debts-collection-and-termination (PDF 324 kb)
Revised Language (QA/QC) for the Model Statement of Work for RI/FS - (8/1/01)
Revised QA/QC provisions for the Model Administrative Order Consent (AOC) for Remedial Investigation/Feasibility Study (RI/FS)
http://www2.epa.gov/enforcement/model-provisions-qaqc-language-model-statement-work-rifs (PDF 21 kb)
Revised Language for the Model RD/RA Unilateral Administrative Order (UAO) - (8/1/01)
Revised model language for remedial design/remedial action (RD/RA) unilateral administrative orders (UAOs) addressing work to be performed and quality assurance.
http://www2.epa.gov/enforcement/model-cercla-section-106-uao-rdra (PDF 16 kb)
Orphan Share Reform Implementation Update No. 2 - (4/19/01)
Second update memorandum regarding implementation of orphan share reform
http://www2.epa.gov/enforcement/guidance-updates-implementation-orphan-share-reform (PDF 126 kb)
Use of CERCLA 106 to Address Endangerments That May Also be Addressed Under Other Environmental Statutes - (1/18/01)
This memo discusses the use of CERCLA 106 to address imminent and substantial endangerments that may also be addressed by other crose-media situations.
http://www2.epa.gov/enforcement/guidance-using-cercla-section-106-address-cross-media-ise-situations (PDF 1500 kb)
Support of Regional Efforts to Negotiate Prospective Purchaser Agreements (PPAs) at Superfund Sites and Clarifications of PPA Guidance - (1/10/01)
Memorandum addresses settlements at Superfund sites that can be returned to productive reuse.
http://www2.epa.gov/enforcement/guidance-negotiating-ppas-superfund-sites-and-clarification-ppa-guidance (PDF 33kb)
Orphan Share Superfund Reform Questions and Answers (January 2001) - (1/1/01)
Questions and answer document to orphan share superfund reforms.
http://www2.epa.gov/enforcement/qa-orphan-share-superfund-reform (PDF 240 kb)


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Transmittal Memorandum for Institutional Controls: A Site Managers Guide to Identifying, Evaluating and Selecting Institutional Controls at Superfund and RCRA Corrective Action Cleanups - (9/29/00)
Transmittal memorandum and fact sheet intended to provide Superfund and RCRA site managers and other decision makers with an overview of the types of institutional controls that are commonly available. OSWER Dir. No. 9355.0-74FS-P.
http://semspub.epa.gov/src/document/HQ/175447 (PDF 96 kb)
Model Language Relating to Orphan Share Compensation Through the Compromise of Future Oversight Costs - (9/28/00)
Memo suggests model language for inclusion in future remedial design, remedial action consent decrees and removal action administrative orders that provide orphan share compensation.
http://www2.epa.gov/enforcement/guidance-orphan-share-compensation-through-compromise-future-oversight-costs-model (PDF 238 kb)
Transmittal of Final Report: PRP Compliance with CERCLA Obligations - (9/28/00)
Summarizes the findings of efforts to assess potentially responsible party (PRP) compliance with EPA's active orders and settlement agreements for CERCLA studies, response work and cost recovery.
http://www2.epa.gov/enforcement/report-prp-compliance-cercla-obligations (PDF 1,110 kb)
Applicability of Policy Against No Action Assurances to CERCLA - (6/16/00)
Memorandum affirms the applicability of the Agency's general policies concerning "no action" assurances to sites subject to CERCLA.
http://www2.epa.gov/enforcement/guidance-applicability-policy-against-no-action-assurances-cercla (PDF 23 kb)
Guidance on Exercising CERCLA Enforcement Discretion in Anticipation of Full Cost Accounting Consistent With the - (6/2/00)
This memorandum provides guidance to EPA personnel on how to exercise enforcement discretion as it relates to upcoming changes in EPA's indirect cost accounting methodology.
Interim Guidance on Implementing the Superfund Administrative Reform on PRP Oversight - (5/17/00)
This memorandum provides direction and guidance to Regions on implementation of the Superfund Reform on the Administration of Potentially Responsible Party (PRP) Oversight.
http://semspub.epa.gov/src/document/HQ/175071 (PDF 105 kb)
Model CERCLA MSW Generator/Transporter Consent Decree - (4/4/00)
Model settlement document for use in settlements with generators and transporters of municipal solid waste and municipal sewage sludge.
http://www2.epa.gov/enforcement/model-superfund-msw-generatortransporter-cd (PDF 111 kb)
Use of Non-Time-Critical Removal Authority in Superfund Response Actions - (2/14/00)
Memo summarizes the pertinent NCP criteria and guidance to be considered in determining whether the use of remedial or removal authority is most appropriate in a given case. Oswer No. 9360.0-40P.
http://www2.epa.gov/enforcement/guidance-using-non-time-critical-removal-authority-superfund-response-actions (PDF 311kb)


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Orphan Share Reform Implementation Update - (12/28/99)
Memorandum outlines orphan share reform activities since implementation in October 1995
http://www2.epa.gov/enforcement/guidance-updates-implementation-orphan-share-reform (PDF 158 kb)
Regional Trends in Remedy Changes (Final Report) - (10/7/99)
Transmittal memorandum and the 8/99 final report on Regional Trends in Remedy Changes at the national and regional levels.
http://www2.epa.gov/enforcement/report-regional-trends-remedy-changes-final (PDF 247kb)
Checklist of Documents for PPA Evaluation - (10/1/99)
Checklist of Information that EPA Will Generally Require in Evaluating a PPA Request - Attachment to Expediting Requests for Prospective Purchaser Agreements, dated 10/01/1999
http://www2.epa.gov/enforcement/guidance-expediting-ppa-requests (PDF 6 kb)
Expediting Requests for Prospective Purchaser Agreements - (10/1/99)
Cover letter transmits the model PPA agreement language and the request letter.
http://www2.epa.gov/enforcement/guidance-expediting-ppa-requests (PDF 10kb)
Model Letter Acknowledging a PPA Request - (10/1/99)
Model letter acknowledging a PPA request, attachment to 10/1/99 memo on expediting PPAs, dated 9/30/99
http://www2.epa.gov/enforcement/guidance-expediting-ppa-requests (PDF 5kb)
Final Enforcement Response Policy for Sections 304, 311, and 312 of EPCRA and Section 103 of CERCLA - (9/30/99)
Final Enforcement Response Policy to assist staff in calculating proposed penalties for all civil administrative actions, and for settling actions concerning EPCRA §§ 304, 311 and 312 and CERCLA § 103(a).
http://www2.epa.gov/enforcement/enforcement-response-policy-epcra-sections-304-311-312-and-cercla-section-103 (PDF 245 kb)
Negotiation and Enforcement Strategies to Achieve Timely Settlement and Implementation of Remedial Design/Remedial Action at Superfund Sites - (6/17/99)
Memorandum recommends strategies that can be used to encourage PRPs to enter into a settlement using the model remedial design/remedial action (RD/RA) consent decree and discusses the current model language unilateral administrative order (UAO). Also suggests practical alternatives to expedite Superfund settlements and the cleanup process.
http://www2.epa.gov/enforcement/guidance-strategies-achieve-timely-settlement-and-implementation-rdra-superfund-sites (PDF 50 kb)


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DOJ Letter to EPA - Agreement on Procedures to Address Consent Decree Payments by Federal PRPs to the Superfund - (12/28/98)
Letter from DOJ to EPA confirming agreement on federal PRP payments to the Superfund. Previously attached to superseded 1998 revisions to RD/RA model.
http://www2.epa.gov/enforcement/memorandum-agreement-process-concerning-payments-federal-prps-superfund (PDF 1.64 kb)
Guidance on Administrative Response Cost Settlements under Section 122(h) of CERCLA and Administrative Cashout Settlements with Peripheral Parties under Section 122(h) of CERCLA and Attorney General Authority (Corrected Copy of 9/30/98) - (12/22/98)
Cover memorandum circulating the corrected copy of Sept 30, 1998 Guidance on Administrative Response Cost Settlements under Section 122(h) of CERCLA and Administrative Cashout Settlements with Peripheral Parties under Section 122(h) of CERCLA and Attorney General Authority guidance document containing missing subsection II(C). Section III.B and Appendices A, B and C have been superseded by other documents.
http://www2.epa.gov/enforcement/guidance-superfund-settlements-administrative-response-cost-and-cashout-peripheral (PDF 959 kb)
Interim Final Guidance on Disbursements of Funds From EPA Special Accounts to CERCLA Potentially Responsible Parties - (11/3/98)
Addresses the circumstances under which a PRP may receive special accounts funds; timing & amount of special account disbursements; special account disbursement priorities; disposition of special account funds after completion of response action ....
http://www2.epa.gov/enforcement/guidance-disbursements-funds-special-accounts-cercla-prps (PDF 33kb)
Ensuring Potentially Responsible Party Compliance with CERCLA Obligations - (11/3/98)
Memorandum sets out steps to ensure compliance by Potentially Responsible Parties (PRPs) with EPAs active orders and settlement agreements for CERCLA studies, response work, and cost recovery.
http://www2.epa.gov/enforcement/guidance-ensuring-prp-compliance-superfund-obligations (PDF 59 kb)
MOU EPA, Coast Guard, Dept. of Commerce, Dept. of the Interior, Dept. of Agriculture, Dept. of Defense, Dept. of Energy, and Dept. of Justice re: the exercise of authority under Section 106 of the CERCLA - (2/10/98)
MOU regarding the exercise of authority under Section 106 of CERCLA.
http://www2.epa.gov/enforcement/agreement-exercise-superfund-section-106-authority-between-federal-partners (PDF 61kb)
Transmittal of Policy for Municipality and Municipal Solid Waste CERCLA Settlements at NPL Co-Disposal Sites - (2/5/98)
Transmittal memorandum and policy supplementing the 9/30/89 Interim Policy on CERCLA Settlements Involving Municipalities and Municipal Wastes. 1998 MSW Policy states that EPA will continue its policy of generally not identifying generators and transporters of MSW as PRPs at NPL sites.
http://www2.epa.gov/enforcement/guidance-policy-municipality-and-msw-cercla-settlements-npl-co-disposal-sites (PDF 30kb)


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Guidance on EPA Participation in Bankruptcy Cases - (9/30/97)
Guidance on EPA Participation in Bankruptcy Cases identifies the factors to be considered by EPA in determining whether to participate in a bankruptcy case.
http://www2.epa.gov/enforcement/guidance-epa-participation-bankrtupcy-cases (PDF 820 kb)
Transmittal of Addendum to the Interim CERCLA Settlement Policy Issued on December 5, 1984 - (9/30/97)
Transmittal memorandum and addendum to the "Interim CERCLA Settlement Policy" issued on December 5, 1984 that provides the Regions with direction for addressing potential compromises of CERCLA cost recovery claims due to the existence of a significant orphan share.
http://www2.epa.gov/enforcement/guidance-cercla-settlement-policy-interim (PDF 18 kb)
Issuance of the Interim Policy on Settlement of CERCLA Section 106(b)(1) Penalty Claims and Section 107(c)(3) Punitive Damages Claims for Noncompliance with Administrative Orders - (9/30/97)
Transmittal memorandum and interim policy for settling CERCLA section 106(b)(1) civil penalty and section 107(c)(3) punitive damages claims for noncompliance with administrative orders (AOs).
http://www2.epa.gov/enforcement/interim-guidance-settling-civil-penalty-and-punitive-damage-claims-noncompliance (PDF 1317 kb)
General Policy on Superfund Ability to Pay Determinations - (9/30/97)
Transmittal memorandum and policy document addressing general issues that apply to the ATP process and ATP settlements.
http://www.epa.gov/enforcement/guidance-superfund-ability-pay-determinations (PDF 1618 kb)
Interim Guidance On Maximizing Insurers' Contributions To Responses At Residences Contaminated With Methyl Parathion - (8/1/97)
Memorandum provides guidance on maximizing contributions from property owners' insurers related to decontamination and restoration of residences contaminated by methyl parathion.
http://www2.epa.gov/enforcement/guidance-maximizing-insurers-contributions-cleanup-residences-contaminated-methyl (PDF 24 kb)
CERCLA Coordination with Natural Resource Trustees - (7/31/97)
Memorandum provides direction for ensuring that CERCLA requirements for coordination with Natural Resource Trustees are met.
http://www2.epa.gov/enforcement/guidance-superfund-coordination-national-resource-trustees (PDF 767 kb)
Policy on Interpreting CERCLA Provisions Addressing Lenders and Involuntary Acquisitions by Government Entities - (6/30/97)
The memorandum transmits EPA's policy for interpreting CERCLA provisions that address (1) lenders and (2) government entities that acquire property involuntarily.
http://www2.epa.gov/enforcement/guidance-lenders-and-involuntary-acquisitions-government-entities (PDF 17 kb)
Defining Matters Addressed in CERCLA Settlements - (3/14/97)
Memorandum describes the principles applied in defining "matters addressed" and the application of these principles to the most common types of CERCLA settlements.
http://www2.epa.gov/enforcement/guidance-defining-matters-addressed-cercla-settlements-0 (PDF 28 kb)


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Revised Model Notice Language for Compliance with Public Participation Requirements of Section 7003(d) of RCRA - (10/30/96)
Memorandum updates instructions for formatting and obtaining publication of the EPA Federal Register notices and to make minor modifications to the notices themselves from 8/16/95 superseded memorandum.
http://www2.epa.gov/enforcement/guidance-model-language-compliance-public-participation-requirements-under-rcra-section (PDF 79 kb)
Recently Enacted Lender and Fiduciary Liability Amendments - (10/3/96)
Memorandum highlights the 1996 lender and fiduciary amendments to CERCLA contained in the Omnibus Appropriations for fiscal year 1997.
http://www2.epa.gov/enforcement/guidance-lender-and-fiduciary-liability-amendments-superfund-and-rcra (PDF 598 kb)
Documentation of Reason(s) for not Issuing CERCLA Section 106 UAOs to all Identified PRPs - (8/2/96)
Purpose is to establish procedures that will ensure that Regional staff document their reason(s) for proposing that certain PRP be excluded from CERCLA 106 unilateral administrative orders to be issued
http://www2.epa.gov/enforcement/guidance-documenting-reason-not-issuing-uaos-all-identified-prps (PDF 526kb)
Transmittal of Sample Documents for Compliance Monitoring - (7/1/96)
Transmittal memorandum and eleven sample documents to assist the Regions when faced with non-compliance with CERCLA UAOs, AOCs, and CDs, or RCRA documents requiring corrective action.
http://www2.epa.gov/enforcement/guidance-superfund-settlements-and-rcra-corrective-action-compliance-monitoring (PDF 671 kb)
Fact Sheet: Orphan Share Reform - (6/4/96)
Fact Sheet: Orphan Share Reform
http://www2.epa.gov/enforcement/guidance-orphan-share-compensation-rdra-and-non-time-critical-removal-settlors (PDF 56 kb)
Interim Guidance on Orphan Share Compensation for Settlors of Remedial Design/Remedial Action and Non-Time-Critical Removals - (6/3/96)
Memorandum provides Regions with direction for providing orphan share compensation in settlements with PRPs.
http://www2.epa.gov/enforcement/guidance-orphan-share-compensation-rdra-and-non-time-critical-removal-settlors (PDF 437 kb)
Revised Policy on Performance of Risk Assessments During Remedial Investigation/Feasibility Studies (RI/FS) Conducted by Potentially Responsible Parties - (1/26/96)
Memorandum reaffirms the Agency's commitment to allow PRPs to conduct risk assessments under proper circumstances as part of the overal RI/FS process. OSWER Directive 9835.15c. This memorandum does not address the model documents attached to the 1991 policy document on the same matter.
http://semspub.epa.gov/src/document/HQ/176093 (PDF 188 kb)


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Fact Sheet: The Effect of Superfund on Involuntary Acquisitions of Contaminated Property by Government Entities - (12/31/95)
Summarizes EPA's policy on Superfund enforcement against gov't entities that involuntarily acquire contaminated property. Also describes some types of gov't. actions that EPA believes qualify for a liability exemption or a defense to Superfund liability
http://www2.epa.gov/enforcement/fact-sheet-effect-superfund-involuntary-acquisitions-contaminated-property-government (PDF 206 kb)
Fact Sheet: Policy Toward Owners of Property Containing Contaminated Aquifers - (11/3/95)
Fact sheet summarizes EPA policy regarding toward owners of property containing contaminated aquifers.
http://www2.epa.gov/enforcement/fact-sheet-policy-toward-owners-property-containing-contaminated-aquifers (PDF 234 kb)
Municipal Immunity from CERCLA Liability for Property Acquired through Involuntary State Action - (10/20/95)
Memorandum sets forth EPA and DOJ policy regarding the government's enforcement of CERCLA against lenders and against government entities that acquire property involuntarily.
http://www2.epa.gov/enforcement/guidance-municipal-immunity-cercla-liability-property-acquired-through-involuntary-state (PDF 279 kb)
Answers to Comments Submitted After the Superfund ROD is Signed - (10/11/95)
Memorandum addresses the Agency's responsibility for responding to comments submitted after the Superfund Record of Decision (ROD) is signed and the comment period has closed.
http://www2.epa.gov/enforcement/guidance-responding-comments-after-rod-signed (PDF 98 kb)
Standardizing the De Minimis Premium - (7/7/95)
Guidance is intended to simplify the premium determination process and promote greater national consistency in this aspect of de minimis settlements
Transmittal of Sample Documents for More Effective Communication in CERCLA Section 104(e)(2) Information Requests - (6/30/95)
Samples intended to address concerns raised by past recipients of information request letters to more effectively convey our initial information requests to recipients & encourage a more complete response from the recipients of initial information request
http://www2.epa.gov/enforcement/guidance-sample-documents-effective-communication-under-cercla-section-104e (PDF)
Final Policy Toward Owners of Property Containing Contaminated Aquifers - (5/24/95)
Policy states the Agency position "subject to certain conditions, where hazardous substances have come to be located on or in a property solely as the result of subsurface migration in an aquifer, dated 05/24/95
http://www2.epa.gov/enforcement/guidance-owners-property-containing-contaminated-aquifers (PDF 1,060 kb)
Guidance on Agreements with Prospective Purchasers of Contaminated Property - (5/24/95)
This memorandum transmits the guidance and model agreement concerning prospective purchasers of contaminated Superfund property.
http://www2.epa.gov/enforcement/guidance-model-agreements-prospective-purchasers-contaminated-property (PDF 1213kb)
Overview of Ability To Pay Guidance And Models - (5/1/95)
Identifies and briefly describes documents that are relevant to Superfund ability to pay ("ATP") analyses.
http://www2.epa.gov/enforcement/guidance-ability-pay (PDF 451 kb)
Exploring Use of Annuities as Funding Tools for Superfund Settlements - (4/17/95)
Memorandum identifies mechanisms that will facilitate settlements and examines the use of annuities.
http://www2.epa.gov/enforcement/guidance-exploring-annuities-funding-tools-superfund-settlements (PDF 235 kb)
Processing Requests for Use of Enforcement Discretion - (3/3/95)
Memorandum discussing EPA's general policy on no action assurances.
http://www2.epa.gov/enforcement/guidance-processing-requests-use-enforcement-discretion (PDF 795 kb)


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Model Administrative Order for CERCLA Information Requests - (9/30/94)
Transmittal memorandum and model Administrative Order for CERCLA Information Requests.
http://www2.epa.gov/enforcement/guidance-model-cercla-section-104e5a-administrative-order-information-collection (PDF 632 kb)


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Communications Strategy for Settlements with Small Volume Waste Contributors - (9/30/93)
Memorandum outlines communication strategy and attaches model documents for assist the Regions settlements with de minimis parties. Memorandum outlines communication strategy and attaches model documents for assist the Regions settlements with de minimis parties.
http://www2.epa.gov/enforcement/guidance-communication-strategy-superfund-settlements-small-volume-waste-contributors (PDF 694 kb)
Guidance on Conducting Non-Time-Critical Removals Under CERCLA - (8/6/93)
Transmital memo and Guidance on the appropriate use of non-time-critical removal authority under Superfund and the development of Engineering Evaluation/Cost Analysis (EE/CA) reports and approval memos.
http://www2.epa.gov/enforcement/guidance-conducting-non-time-critical-superfund-removal-actions (PDF 2,923 kb)
Streamlined Approach for Settlements with De Minimis Waste Contributors under CERCLA Section 122 (g)(1)(A) - (7/30/93)
Streamlined Approach for Settlements with De Minimis Waste Contributors under CERCLA Section 122 (g) (1)(A), OSWER No. 9834.7-1D.
http://www2.epa.gov/enforcement/guidance-de-minimis-waste-contributors-superfund-settlements-streamlined-approach (PDF 530kb)
Supplemental Guidance on Federal Superfund Liens - (7/29/93)
Supplemental guidance on federal Superfund liens originally issued in September 1987.
http://www2.epa.gov/enforcement/guidance-federal-superfund-liens-supplemental-guidance (PDF 462 kb)
Revised Policy on Discretionary Information Release Under CERCLA - (3/31/93)
The purpose of the revised CERCLA information release policy is to minimize potential impediments to facilitating PRP organization and coalescence. OSWER Directive 9835.12-01a.
http://www2.epa.gov/enforcement/guidance-discretionary-information-releases-under-superfund (PDF 168 kb)
Issuance of Interim Rule: Disclosure of Confidential Data to Authorized Representatives of the United States, and Potententially Responsible Parties - (1/8/93)
Transmittal memorandum attaching the January 5, 1993 Federal Register interim final rule on disclosure of confidential data.
http://www2.epa.gov/enforcement/guidance-disclosing-confidential-data-authorized-us-representatives-and-prps (PDF 1190 kb)


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Methodology for Early De Minimis Waste Contributor Settlements Under CERCLA Section 122(g)(1)(A) - (6/2/92)
Memorandum received concerning Methodology for early De Minimis contributer settlements under CERCLA Section 122(g)(1)(A). OSWER No. 9834.7-1c.
http://www2.epa.gov/enforcement/guidance-early-de-minimis-waste-contributor-settlements-methodology (PDF 1006 kb)
Accelerating Potentially Responsible Party Remedial Design Starts: Implementing the 30-Day Study - (4/2/92)
Memorandum implements a recommendation of the 30-day study concerning accelerating Remedial Design starts. OSWER No. 9835.4-2b.
http://www2.epa.gov/enforcement/guidance-accelerating-prp-remedial-design-starts (PDF 244kb)


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Limiting Lead Transfers to Private Parties During Discrete Phases of the Remedial Process - (11/14/91)
Memorandum addresses lead transfers to private parties during discrete phases of the remedial process. OSWER No. 9800.1-01.
http://www2.epa.gov/enforcement/guidance-limiting-lead-transfers-private-parties-during-discrete-phases-cleanup-process (PDF 17kb)
Recommendations Concerning the Use and Issuance of Administrative Subpoenas under CERCLA Section 122 - (8/30/91)
Memo addresses CERCLA 122 which gives EPA authority to issue subpoenas administratively to require the attendance and testimony of witnesses and the production of documents.
http://www2.epa.gov/enforcement/guidance-use-and-enforcement-cercla-information-requests-and-administrative-subpoenas (PDF 179 kb)
Policy Towards Owners of Residential Property at Superfund Sites - (7/3/91)
Policy addresses concerns raised by owners of residential property located on Superfund sites, and provide the Regions with a nationally consistent approach on this issue. OSWER Dir. No. 9834.6.
http://www2.epa.gov/enforcement/guidance-owners-residential-property-superfund-sites (PDF 466 kb)
Supplemental Guidance on Performing Risk Assessments in Remedial Investigation Feasibility Studies (RI/FSs) conducted by Potential Responsible Parties (PRPs), Oswer No. 9835.15a - (7/2/91)
Memorandum and attached models provide additional guidance on implementing EPA's policy on PRP performance of the risk assessment component as part of an RI/FS. Memorandum was superseded by January 26, 1996 document. Oswer No. 9835.15a
http://www2.epa.gov/enforcement/guidance-prp-performance-risk-assessments-rifs (PDF 5107 kb)
Guidance on Oversight of Potentially Responsible Party Remedial Investigations and Feasibility Studies - Final, Volume 1 - (7/1/91)
Volume 1 addresses oversight of remedial investigations and feasibility studies (RI/FS) conducted by potentially responsible parties (PRPs) at enforcement-lead sites under CERCLA, OSWER Dir. No. 9835.1(c), dated July 1, 1991
http://www2.epa.gov/enforcement/guidance-oversight-prp-rifs-volumes-1-and-2 (PDF 451kb)
Guidance on Oversight of Potentially Responsible Party Remedial Investigations and Feasibility Studies - Final, Volume 2: Appendices - (7/1/91)
Volume 2 describes oversight of sampling and analysis activity and of well-drilling and installation activity conducted during a remedial investigation (RI) by potentially responsible parties (PRPs), OSWER Dir. 9835.1(c), dated 7/1/1991
http://www2.epa.gov/enforcement/guidance-oversight-prp-rifs-volumes-1-and-2 (PDF 402 kb)
Evaluation of, and Additional Guidance on, Issuance of Unilateral Administrative Orders (UAOs) for RD/RA - (6/20/91)
Memorandum presents results of evaluation of the selection process EPA uses in issuing UAOs to Potentially Responsible Parties (PRPs) for RD/RA under CERCLA. OSWER Dir. 9833.2c
http://www2.epa.gov/enforcement/guidance-issuing-uaos-rdra-evaluation-and-guidance (PDF 314 kb)
Model Informational Notice Letter to Local Governments - (5/7/91)
Provides information to municipalities and other local governments about EPA's activities at a Superfund site.
http://www2.epa.gov/enforcement/model-informational-notice-letter-local-governments (PDF 245 kb)
Written Demand for Recovery of Costs Incurred Under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) - (3/21/91)
Regions are responsible for documenting costs, issuing written demands for those costs, and pursuing parties that do not reimburse EPA. OSWER No. 9832.18
http://www2.epa.gov/enforcement/guidance-written-demand-superfund-cost-recovery (PDF 1085kb)
Final Guidance on Preparing Waste-in Lists and Volumetric Rankings for Release to Potentially Responsible Parties (PRPs) under CERCLA (Waste-in Guidance) - (2/22/91)
Provides guidance on the compilation and release of waste-in lists and volumetric rankings to help you comply with the information release requirements of CERCLA section 122 (e) and the information release and exchange policies outlined in OSWER Directive
http://www2.epa.gov/enforcement/guidance-preparing-waste-lists-and-volumetric-rankings-release-prps-waste-guidance (PDF 1206 kb)


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Policy on Management of Post-Removal Site Control - (12/3/90)
Transmits OSWER policy on management of post-removal site control for Fund-financed removal activities and communicating decisions to states on the use of institutional controls.
Transmittal of Model Consent Decree for CERCLA Section 104(e) Information Request Enforcement Actions - (8/29/90)
Transmittal memorandum and model Consent Decree for CERCLA Section 104(e) Information Request Enforcement Actions. OSWER No. 9834.14.
http://www2.epa.gov/enforcement/model-cercla-section-104e-information-request-enforcement-actions-consent-decree (PDF 445 b kb)
Integrated Timeline for Superfund Site Management (SMR #5, 15) - (6/11/90)
Displays the key steps and phases in moving sites from identification to remediation. (SMR #5, 15), OSWER No. 9851.3.
http://www2.epa.gov/enforcement/guidance-superfund-management-review-timeline-superfund-site-management (PDF 396 kb)
Model Unilateral Administrative Order for Remedial Design and Remedial Action Under Section 106 of CERCLA - (3/30/90)
Interim final model unilateral administrative orders for remedial design and remedial action (RD/RA). One purpose of this model order is to improve the quality of remedial actions performed by private parties. OSWER Dir. No. 9833.0-2(b). Modified by 8/1/01 Revised Language for the Model RD/RA Unilateral Administrative Order (UAO) addressing work to be performed and quality assurance.
http://www2.epa.gov/enforcement/model-cercla-section-106-uao-rdra (PDF 1513kb)
Guidance on CERCLA Section 106(a) Unilateral Administrative Orders for Remedial Designs and Remedial Actions - (3/7/90)
Guidance encourages use of CERCLA 106(a) unilateral administrative orders for remedial designs and remedial actions. OSWER Dir. No. 9833.0-1a.
http://www2.epa.gov/enforcement/guidance-cercla-section-106a-uaos-rdras (PDF 1830 kb)
Releasing Information to Potentially Responsible Parties at CERCLA Sites - (3/1/90)
Memorandum addresses releasing information to potentially responsible parties at sites being addressed under CERCLA for the purpose of facilitating settlement. OSWER Dir. No. 9835.12
http://www2.epa.gov/enforcement/guidance-releasing-information-prps-cercla-sites (PDF 228 kb)


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Methodologies for Implementation of CERCLA Section 122(g)(1)(a) De Minimis Waste Contributor Settlements - (12/20/89)
Designed to provide practical assistance in the evaluation and development of de minimis waste contributer settlement proposals and agreements. OSWER No. 9834.7-1B
http://www2.epa.gov/enforcement/guidance-de-minimis-waste-contributor-settlement-methodologies (PDF 866 kb)
Transmittal of Interim Policy on CERCLA Settlements Involving Municipalities and Municipal Wastes (Interim Municipal Settlement Policy) - (12/6/89)
Transmittal memorandum contains cover memo, fact sheet, and interim guidance regarding settlements involving municipalities or municipal waste under Section 122 CERCLA as amended by SARA.
http://www2.epa.gov/enforcement/guidance-interim-municipal-settlement-policy (PDF 827 kb)
Superfund Enforcement Strategy and Implementation Plan - (11/3/89)
Memorandum discusses Superfund enforcement strategy and the steps necessary to implement improvements in the enforcement program. OSWER No. 9800.0.
http://www2.epa.gov/enforcement/guidance-superfund-enforcement-strategy-and-implementation-plan (PDF 2,586 kb)
Notification of Out-of-State Shipments of Superfund Site Wastes, Oswer Dir. No. 9330.2-07 - (9/14/89)
Memorandum addresses EPA's policy regarding off-site shipment of Superfund wastes to an out-of-state waste management facility.OSWER Directive 9330.2-07.
http://www2.epa.gov/enforcement/guidance-out-state-shipment-superfund-waste-notification (PDF 115 kb)
Submittal of Ten-Point Settlement Analyses for CERCLA Consent Decrees - (8/11/89)
Memorandum to ensure adequacy of information provided in the ten-point analysis of a proposed Superfund settlement. Ten settlement criteria laid out in 12/5/1984 Interim CERCLA Settlement Policy (attached).
http://www2.epa.gov/enforcement/guidance-superfund-settlement-ten-point-analysis (PDF 1130 kb)
PRP Search Supplemental Guidance for Sites in the Superfund Remedial Program - (6/16/89)
Transmittal memorandum and supplemental guidance on the PRP process for Superfund remedial sites and the content and format for PRP search reports, OSWER No. 9834.3-2a.
http://www2.epa.gov/enforcement/guidance-searching-prp-and-preparing-search-reports (PDF 1705 kb)
Guidance on Landowner Liability under Section 107(a)(1) of CERCLA, De Minimis Settlements under Section 122(g)(1)(B) of CERCLA and Settlements with Prospective Purchasers of Contaminated Property - (6/6/89)
Guidance on Landowner Liability under Section 107(a)(1) of CERCLA, De Minimis Settlements under Section 122(g)(1)(B) of CERCLA and Settlements with Prospective Purchasers of Contaminated Property. OSWER No. 9835.9. Partially superseded by 5/24/95 prospective purchaser agreement policy.
http://www2.epa.gov/enforcement/guidance-landowner-liability-under-section-107a1-cercla-de-minimis-settlements-under (PDF 2002 kb)
Arbitration Procedures for Small Superfund Cost Recovery Claims - (5/30/89)
Federal Register Final Rule implements EPA's authority under CERCLA to use arbitration for cost recovery, in understanding a response action. OSWER Dir. No. 9832.17 (54 FR 23174)
http://www2.epa.gov/enforcement/guidance-arbitration-procedures-small-cost-recovery-claims-under-superfund-final-rule (PDF 2700 kb)
Interim Final Guidance on Preparation of Superfund Memoranda of Agreement (SMOAs) - (5/8/89)
Guidance indicated that the content of a smoa may be adapted to the needs of a particular State and the respective EPA Region.
http://www2.epa.gov/enforcement/guidance-preparing-superfund-memoranda-agreement (PDF 1256 kb)
Administrative Penalty Procedures, Action: Interim Final Rule - (5/6/89)
Final Rule establishing procedures for the administrative assessment of civil penalties under CERCLA Section 109 and EPRCA Section 325. Federal Register Notice, Vol. 54, No. 93, OSWER Dir. No., 9841.1a
http://www2.epa.gov/enforcement/guidance-cercla-and-epcra-administrative-penalty-procedures (PDF 438 kb)
Procurement under Preauthorization / Mixed Funding (OSWER Directive 9225.1-01) - (4/19/89)
Memorandum clarifying procurement procedures that potential claimants may use in planning and carrying out preauthorized response actions.
http://www2.epa.gov/enforcement/guidance-procurement-under-preauthorized-mixed-funding (PDF 5 MB kb)
Guidance on CERCLA Section 106 Judicial Actions - (2/24/89)
Guidance provides criteria for consideration in selecting and initiating Section 106 Judicial Actions. The guidance also identifies and discusses issues that should be considered in preparation of a section 106 referral.
http://www2.epa.gov/enforcement/guidance-cercla-section-106-judicial-actions (PDF 425 kb)
Revisions to the Interim Guidance on PRP Participation in Remedial Investigations and Feasability Studies - (2/7/89)
Sets forth policies and procedures governing PRP participation in the RI/FS process including initiation of PRP searches, notification, development of agreements, and oversight of RI/FS activities.
http://www2.epa.gov/enforcement/guidance-prp-participation-rifs (PDF 2,035 kb)
CERCLA Community Relations Mailing Lists, OSWER No. 9836.2 - (2/6/89)
Memorandum emphasizes the use of community relations mailing lists to ensure notification of PRPs.
http://www2.epa.gov/enforcement/guidance-using-community-relations-mailing-lists-superfund-enforcement (PDF 193kb)


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Interim Strategy for Enforcement of Title III and CERCLA Section 103 Notification Requirements - (12/14/88)
Memorandum provides Regions with overall strategy to enforce the Title III reporting requirements (regulating to sections 302-312) and the CERCLA emergency notification requirements. OSWER No. 9841.0
http://www2.epa.gov/enforcement/guidance-enforcement-strategy-epcra-and-cercla-notification-requirements (PDF 1521 kb)
Initiation of PRP-financed Remedial Design in Advance of Consent Decree Entry - (11/18/88)
Memorandum addresses process for expediting the initiation of response work by PRPs at sites where agreements with PRPs have been reached and where PRPs will agree to begin remedial design work promptly, but where a consent decree has not been entered by the court.
http://www2.epa.gov/enforcement/guidance-initiating-prp-financed-rd-advance-consent-decree-entry (PDF 278 kb)
Guidance on Premium Payments in CERCLA Settlements - (11/17/88)
Guidance on the use of premium payments in CERCLA Settlements, OSWER No. 9835.6.
http://www2.epa.gov/enforcement/guidance-premium-payments-superfund-settlements (PDF 494 kb)
Transmittal of Guidance on Use and Enforcement of CERCLA Information Requests and Administrative Subpoenas - (8/25/88)
Guidance gives an overview of the information-gathering tools under CERCLA 104(e) and 122(e)(3)(B), and it focuses on the steps to be taken. OSWER No. 9834.4-a
http://www2.epa.gov/enforcement/guidance-use-and-enforcement-cercla-information-requests-and-administrative-subpoenas (PDF 1859 kb)
Transmittal of the Superfund Cost Recovery Strategy - (7/29/88)
Sets forth the Agency's priorities and case selection guidelines, emphasizes the advance planning necessary to initiate cost recovery actions. OSWER No. 9832.13
http://www2.epa.gov/enforcement/guidance-superfund-cost-recovery-strategy (PDF 1.52mb kb)
The Superfund Enforcement Process: How It Works - (7/1/88)
Fact Sheet on the Superfund enforcement process, enforcement authorities and tools.
Interim Policy on Mixed Funding Settlements Involving the Preauthorization of States or Political Subdivisions - (5/27/88)
Memorandum establishes interim policy on the use of mixed funding/preathorization of states or political subdivisions that are PRPs. OSWER No. 9834.9a
http://www2.epa.gov/enforcement/guidance-superfund-mixed-funding-settlements-involving-state-or-political-subdivision (PDF 195kb)


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Evaluating Mixed Funding Settlements under CERCLA - (10/20/87)
Memorandum provides guidance to the Regions for evaluating settlement proposals they may receive from PRPs for EPA to provide mixed funding at CERCLA sites. OSWER No. 9834.9.
http://www2.epa.gov/enforcement/guidance-superfund-mixed-funding-settlement-evaluation (PDF 716 kb)
Interim Guidance on Notice Letters, Negotiations, and Information Exchange - (10/19/87)
Memorandum re-emphasizes the importance of timely issuance of notice letters and the exchange of information between EPA and PRPs.
http://www2.epa.gov/enforcement/interim-guidance-notice-letters-negotiations-and-information-exchange (PDF 3061kb)
Guidance on Federal Superfund Liens - (9/22/87)
Memorandum establishes guidance on the use of federal liens to enhance Superfund cost recovery under CERCLA section 107(l). Oswer No. 9832.12. Supplemented by 3/16/93 guidance.
http://www2.epa.gov/enforcement/guidance-federal-superfund-liens (PDF 438kb)
Guidance on the Use of Stipulated Penalties in Hazardous Waste Consent Decrees - (9/21/87)
This guidance addresses the use of stipulated penalties in civil judicial settlements under CERCLA and RCRA Section 7003.
http://www2.epa.gov/enforcement/guidance-use-stipulated-penalties-hazardous-waste-consent-decrees (PDF 511 kb)
Scope of the CERCLA Petroleum Exclusion Under Sections 101(14) and 104(a)(2) - (7/31/87)
Memorandum discusses whether contaminants in used oil or any other petroleum substance are within CERCLA's petroleum exclusion.
http://www2.epa.gov/enforcement/guidance-scope-cercla-petroleum-exclusion (PDF 497 kb)
Covenants Not to Sue Under SARA (Interim Guidance - Request for Public Comments), 52 Fed.Reg. 28039 - (7/27/87)
Superfund Program; Covenants Not to Sue; Request for Public Comments, FR Vol. 52, No. 143, dated July 27, 1987 Oswer No., 9834.8
http://www2.epa.gov/enforcement/guidance-covenants-not-sue-under-superfund (PDF 788 kb)
Interim Guidance on Use of Administrative Penalty Provisions of Section 109 of CERCLA and Section 325 of SARA - (7/16/87)
Interim Guidance on Use of Administrative Penalty Provisions of Section 109 of CERCLA and Section 325 of SARA, OSWER No. 9841.1
http://www2.epa.gov/enforcement/guidance-use-superfund-and-epcra-penalty-provisions (PDF 490 kb)
Interim Guidance on Settlements with De Minimis Waste Contributors under Section 122(g) of SARA - (6/19/87)
Memorandum providing interim guidance for determining which PRPs qualify for treatment as de minimis waste contributors under section 122(g)(1) (A) of CERCLA.
http://www2.epa.gov/enforcement/guidance-superfund-settlements-de-minimis-waste-contributors (PDF 83 kb)
Consent Orders and the Reimbursement Provision Under Section 106(b) of CERCLA - (6/12/87)
Memorandum provides guidance on EPA consent agreements with PRP under Section 106 of CERCLA, that the consent agreement should include a provision which prevents PRP from receiving reimbursement for response actions. OSWER No. 9833.2.
http://www2.epa.gov/enforcement/guidance-superfund-section-106b-consent-orders-and-reimbursement (PDF 137kb)
Cost Recovery Actions/Statute of Limitations - (6/12/87)
Memorandum updates the Agency's policy on timing of cost recovery actions. OSWER Dir. 9832.3-1A
http://www2.epa.gov/enforcement/guidance-cost-recovery-actionsstatute-limitations (PDF 431 kb)
Entry and Continued Access Under CERCLA - (6/5/87)
Memorandum sets forth EPA's policy on entry and continued access to facilities by EPA officers, employees and representatives for the purposes of response and civil enforcement activities under CERCLA. OSWER No. 9829.2
http://www2.epa.gov/enforcement/guidance-superfund-entry-and-continued-access (PDF 673 kb)
Superfund Program; Non-Binding Preliminary Allocations of Responsibility (NBAR) - (5/20/87)
Interim guidelines on non-binding preliminary allocations of responsibility (NBAR), among potentially responsible parties.
http://www2.epa.gov/enforcement/guidance-preparing-nonbinding-preliminary-allocations-responsibility-nbar (PDF 477 kb)


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Policy on Recovering Indirect Costs in CERCLA Section 107 Cost Recovery Actions - (6/27/86)
This memo clarifies the Agency's policy regarding the recovery of indirect costs in CERCLA cost recovery actions. OSWER No. 9832.5
http://www2.epa.gov/enforcement/guidance-recovering-indirect-costs-superfund-cost-recovery-actions (PDF 89kb)


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Policy for Enforcement Actions against Transporters under CERCLA - (12/23/85)
Policy for Enforcement Actions against Transporters under CERCLA. OSWER Dir. No. 9829.0
http://www2.epa.gov/enforcement/guidance-enforcement-actions-against-transporters-under-cercla (PDF 272 kb)
Procedural Guidance on Treatment of Insurers Under CERCLA - (11/21/85)
Guidance provides EPA Regional offices with the appropriate procedures to follow in issuing notice letters, developing referrals, and tracking CERCLA enforcement cases that may include insurers as third party defendants.
http://www2.epa.gov/enforcement/guidance-treatment-insurers-under-superfund (PDF 2627kb)
Small Cost Recovery Referrals - (7/12/85)
This memo simply confirms operating guidance on CERCLA cost recovery cases valued at less than $200,000. OSWER No. 9832.6.
http://www2.epa.gov/enforcement/guidance-small-cost-recovery-referrals (PDF 91kb)


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Interim CERCLA Settlement Policy - (12/5/84)
Memorandum sets forth the general principles governing private party settlements under CERCLA, and specific procedures for the Regions and Headquarters to use in assessing private party settlement proposals.
http://www2.epa.gov/enforcement/guidance-cercla-settlement-policy-interim (PDF 994 kb)
Policy Against No Action Assurances - (11/16/84)
Memorandum reaffirming EPA policy on no action assurances. Referenced in June 2000 memorandum on applicability of no action assurance policy to CERCLA.
http://www2.epa.gov/enforcement/guidance-no-action-assurances-policy (PDF 139 kb)
Policy on Enforcing Information Requests in Hazardous Waste Cases - (9/10/84)
Memorandum assists the regions in enforcing information request letters issued pursuant to Section 104 of CERCLA and Section 3007 of RCRA. OSWER Dir. 9834.4
http://www2.epa.gov/enforcement/guidance-enforcing-information-requests-hazardous-waste-cases (PDF 1156 kb)
Issuance of Administrative Orders for Immediate Removal Actions - (2/21/84)
Sets forth guidance on issuing administrative orders for immediate removal actions under CERCLA.
http://www2.epa.gov/enforcement/guidance-issuing-administrative-orders-immediate-removal-actions (PDF 692 kb)
Releasing Identities of Potentially of Responsible Parties in Response to FOIA Requests - (1/26/84)
The memo states EPA Policy on responding to requests under the FOIA for the names of PRPs at CERCLA sites. OSWER Dir. No. 9834.0
http://www2.epa.gov/enforcement/guidance-releasing-prp-identities-foia-responses (PDF 148 kb)


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Guidance Memorandum on Use and Issuance of Administrative Orders Under Section 106(a) of CERCLA - (9/8/83)
Guidance Memorandum on Use and Issuance of Administrative Orders Under Section 106(a) of CERCLA, OSWER Dir. No. 9833.0. Superseded in part by 3/7/90 guidance on CERCLA 106(a) UAO for RD/RA.
http://www2.epa.gov/enforcement/guidance-using-and-issuing-superfund-section-106a-administrative-orders (PDF 1,154 kb)
Guidance on Pursuing Cost Recovery Actions Under CERCLA - (8/26/83)
Describes essential elements which the government will probably be called upon to prove in a cost recovery action; the assembly & maintenance of a file; some examples of appropriate documentation for each element of the cause of action; procedural issues, OSWER No. 9832.1
http://www2.epa.gov/enforcement/guidance-cost-recovery-actions-under-superfund (PDF 1460 kb)

For Immediate Release : November 8, 2010
Media Contact:
Nahal Mogharabi, mogharabi.nahal@epa.gov

U.S. EPA Proposes to Disapprove California's Air Quality Plans for South Coast and San Joaquin Valley
Agency Asks CA to Revise PM2.5 Plans to Better Protect Health of Residents

SAN FRANCISCO – Today, the U.S. Environmental Protection Agency is proposing to disapprove California's air quality plans for fine particles - also known as PM2.5 - for failure to achieve adequate emissions reductions in the South Coast and San Joaquin Valley air basins notoriously known for poor air quality.

States are required to submit plans to EPA that identify how health-based air quality standards will be attained in areas not meeting federal air quality standards. The plans submitted by the California Air Resources Board (CARB) aim to bring these areas into attainment with the national health based standards for PM2.5. However, EPA cannot approve the plans since they rely heavily on emissions reduction from rules that are being revised and have not been submitted to EPA for review. The state must submit the rules and also show how these rules will achieve the plans' air quality goals.

“California has a history of adopting aggressive rules to tackle some of the worst air quality in the nation, but we need to redouble our efforts,” said Jared Blumenfeld, Regional Administrator for EPA's Pacific Southwest Region. “EPA will continue to work with California to strengthen measures to improve air quality for the millions of residents in the South Coast and San Joaquin Valley.”

EPA is proposing to approve portions of the plans, such as the emission reductions from state and local rules that have been submitted to EPA and approved. Some of the locally adopted and EPA-approved rules include residential wood-burning programs for both South Coast and San Joaquin Valley, and South Coast's rules controlling emissions from various industrial processes.

California is a national leader in air pollution controls. The majority of the emission reductions needed to demonstrate attainment of the PM2.5 standards have already been adopted by CARB and the San Joaquin Valley and South Coast and Air Districts. Given the state's commitment to public health, EPA expects the state and local agencies will adopt creditable emissions reductions to meet the Clean Air Act requirements for attainment of the PM2.5 standards.

PM2.5 is made up of small particles in the air that can penetrate deep into the lungs and worsen medical conditions such as asthma and heart disease. Reducing the exposure of particulate matter will ultimately decrease emergency room visits, hospital admissions, and premature death. In September 2010, the state reported that more than 9,000 people die prematurely in CA each year due to PM2.5 pollution.

EPA intends to make a final decision on the plans in 2011, after reviewing public comments. In the event the agency finalizes these proposed disapprovals and the state fails to correct the deficiencies in a timely manner, certain sanctions would apply. More stringent facility permitting requirements may be imposed after 18 months and highway funding restrictions may be imposed after 24 months from the date of final disapproval.

Transportation projects scheduled for the first four years of the areas' transportation plans would not be affected, and should be able to continue as planned. Should our proposal be finalized, planning restrictions will be imposed; however, no transportation dollars will be withheld or lost. New funds must be spent on a more limited set of projects that improve air quality, such as mass transit, until the issues are resolved,

For more information the proposed disapproval, please visit http://www.epa.gov/region9/air/actions/ca.html

For more information on PM2.5, please visit http://www.epa.gov/pmdesignations/faq.htm

By virtue of the office of general conservator of the peace throughout the whole kingdom, the High Warden may commit all violators of the peace, or bind them in recognizances to keep it; but other Judges are only so in their own Courts.

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

ii. Local Governments
Section 2504 of the Lender Liability Act validates the portion of the CERCLA Lender Liability Rule that addresses involuntary acquisitions by government entities. State or local governments that acquire property by involuntary means such as bankruptcy, tax delinquency, or abandonment are excluded from the definition of “owner or operator” in CERCLA, and therefore are not liable under CERCLA Section 107(a). CERCLA § 101(20)(D). There is also a third-party affirmative defense available for government entities that acquire property “by escheat, or through any other involuntary transfer or acquisition, or through the exercise of eminent domain authority by purchase or condemnation.” CERCLA § 101(35)(A)(ii).
EPA’s 1995 enforcement policy on involuntary acquisition by lenders and local governments was followed with the guidance memorandum, Municipal Immunity from CERCLA Liability for Property Acquired through Involuntary State Action (October 20, 1995). These two policy memoranda clarified some of the issues surrounding involuntary municipal acquisition of properties. EPA provided further clarification on these issues in a fact sheet, The Effect of Superfund on Involuntary Acquisitions of Contaminated Property by Government Entities issued in December 1995. EPA continues to follow as guidance the Lender Liability Rule and the two 1995 guidance documents and subsequent fact sheets when addressing local government liability.
State or local government entities that acquire property after the enactment of the 2002 Brownfields Amendments and that are concerned
about potential contamination may want to seek the advice of counsel before taking title to ensure that they will have a liability protection (e.g., BFPP status or protection under the involuntary acquisition provision or third-party defense). State or local government entities should note that to achieve BFPP status, an entity must conduct AAI prior to purchase and comply with the other BFPP requirements. Conducting proper AAI prior to purchase is also important for state and local government entities relying on the BFPP protection for brownfield grant eligibility.

Abandoned mine cleanup ruling vs W.Va. upheld

November 08, 2010 @ 06:30 PM

The Associated Press

CHARLESTON, W.Va. (AP) — West Virginia regulators must obtain permits when they clean up abandoned mines.

That's the decision from a federal appellate court panel Monday in a case filed by conservation groups against state Environmental Protection Secretary Randy Huffman.

Three judges from the 4th U.S. Circuit Court of Appeals affirmed U.S. District Judge Irene Keeley's ruling requiring permits.

Keeley faulted the DEP for not setting acid mine drainage limits at 18 sites in northern West Virginia. Her January 2009 order concluded the state violated the Clean Water Act and allowed too much iron, manganese and aluminum into waterways.


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

"If the purpose of this statute was to divest the title of the owner of land in this way, It is unconstitutional. . . . It would be a proceeding which condemns without hearing, proceeds without Inquiry, and renders judgment without trial. It would not be due process of law" Alexander v. Gordon, 101 Fed. 91, 98, 41 CCA 228

The sole test of adverse holding under the statute is whether the true owner is actually disseized for the limitation period. "Actual occupancy of land to the exclusion of the true owner, regardless of whether in good faith or bad faith . . . satisfies the calls of the statute. Such adverse possession of part of a tract under color of title, with Intent to claim the whole, in legal effect extends to the boundaries of the tract." Ovier v. Morrison, 142 Wis. 243, 247, 125 NW 449 (per Marshall, J.).

When judges act when they do not have jurisdiction to act, or they enforce a void order (an order issued by a judge without jurisdiction), they become trespassers of the law, and are engaged in treason. (The Court: Yates v. Village of Hoffman Estates , Illinois , 209 F.Supp. 757 (N.D. Ill. 1962)

“The most obvious misconduct is to present false testimony or false evidence.” Napue v. Illinois (1959) 360 U.S. 264; United States v. Young (9th Cir. 1993) 17 F.3d 1201; United States v. Valentine (2nd Cir. 1987) 820 F.2nd 565; SEE: Bus. & Prof. Code § 6068(d); Penal Code § 1473(b), and Rule 5-200, Rules Prof. Conduct of State Bar.)

Due process is violated when false evidence is presented, whether offered intentionally or inadvertently. “Under well-established principles of due process, the prosecutor cannot present evidence it knows is false and must correct any falsity of which it is aware… even if the false evidence was not intentionally submitted.” ( Giles v. Maryland (1967) 386 U.S. 66… Napue v. Illinois (1959) 360 U.S. 264… People v. Sakarias (2000) 22 Cal.4th 596, 33 …” People v. Seaton , 26 Cal.4th 598, 647; see People v. Bolton (1979) 23 Cal.3d 208, 213-214; People v.Morales (2003) 112 Cal.App.4th 1176, 1192-1196.) “Rulings made in violation of Due Process are void.” ( Sabariego v Maverick , 124 US 261, 31 L Ed 430, 8 S Ct 461)

:" Rules of Professional Conduct - 3-200, Prohibitive Objectives -- Rules of Professional Conduct - 5-200 Deception to Court -- Business and Profession Code Section 6068 – SEE: Model Rule of Professional Conduct Rule 1.1, cmt. 5 (1983) (amended 1998) “…competent handling of a particular matter involves inquiry into analysis of the factual and legal elements of the problem and use of methods and procedures meeting the standards of competent practitioner."

When a breach of ethics, and a duty of omission results in a wrong of commission, it is often because of ignoring empirical evidence, i.e., then the abused victim and the laws that protect the victim -- even though it is relatively easy to know that a crime has, or has not been committed through empirical evidence, and the law -- but if the agents turn a blind eye to both evidence and the law, justice is lost .
This is NOT “harmless error,” rather it is unethical, blatant, deliberate and willful misconduct, and may be moral turpitude, malum in se, ( State v. Stiffler , 788 P.2 2205 (1990); Bus & Professional Code 6107-6109).

. Obviously a judgment, though final and on the merits, has no binding force and is subject to collateral attack if it is wholly void for lack of jurisdiction of the subject matter or person, and perhaps for excess of jurisdiction, or where it is obtained by extrinsic fraud. [Citations.]" 7 Witkin , Cal. Procedure, Judgment, § 286, p. 828.). ( Burns v. Municipal Court (1961) 195 Cal.App.2d 596, 599 .)

A void judgment or proceeding founded on a void judgment is void: 30A Am Jur Judgments



Sec. 9601. Definitions   For purpose of this subchapter-- (1) The term ``act of God'' means an unanticipated grave natural disaster or other natural phenomenon of an exceptional, inevitable, and irresistible character, the effects of which could not have been prevented or avoided by the exercise of due care or foresight.

Citations for: Withdrawal of Proposed Rules; Discontinuing Rulemaking Efforts Listed in the Unified Agenda of Federal Regulatory and Deregulatory Actions


Class Action Fairness: New Plaintiffs May Make an Old Case Removable

Is, or is not, the act contrary to the provisions of the fifth, sixth, and fourteenth amendment to the Constitution of the United States?

Does, or does not, the act, directly or indirectly, deprive any person
of property without due process of law?

Is the State deprived by the Act of any right guaranteed to it in the Constitution of the United States, or therein implied?


Entity Number Date Filed Status Entity Name Agent for Service of Process
Entity Number: C0818998
Date Filed: 06/21/1977
Status: ACTIVE
Jurisdiction: CALIFORNIA
Entity Address: 9940 BUSINESS PARK DR #185
Entity City, State, Zip: SACRAMENTO CA 95827
Agent for Service of Process: T. W. ARMAN
Agent Address: 9940 BUSINESS PARK DR #185
Agent City, State, Zip: SACRAMENTO CA 95827




Business Entity Information
Status:   Default File Date:   2/27/2001
Type:   Domestic Limited-Liability Company Entity Number:  LLC2027-2001
Qualifying State:  NV List of Officers Due:  2/28/2010
Managed By:  Managing Members Expiration Date:  2/27/2501
NV Business ID:  NV20011022183 Business License Exp:

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Mailing Address 1: 
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Agent Type:   Commercial Registered Agent - Corporation
Jurisdiction:   NEVADA Status:   Active
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Officers Include Inactive Officers
 Manager - TED ARMAN
Address 1:   PO BOX 992867 Address 2: 
City:   REDDING State:   CA
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Business Entity Search

 Entity Name  NV Business ID  Status  Type
IRON MOUNTAIN MINES, LLC NV20011022183 Default Domestic Limited-Liability Company
 Entity Name  NV Business ID  Status  Type
ESSENTIAL SOLUTIONS, INC. NV19981381493 Default Domestic Corporation

Strategic Sourcing

Strategic sourcing is the collaborative and structured process of critically analyzing an organization's spending and using this information to make business decisions about acquiring commodities and services more effectively and efficiently. Strategic Sourcing will help increase efficiency and savings to ensure that our Soldiers today — and the Soldiers of the future — have the resources necessary to maintain their readiness.

The Office of Management and Budget issued a directive May 20, 2005 that requires each federal agency and department to implement strategic sourcing, identify commodities for strategic sourcing and then report annually on progress. See the OMB Web site.

The U.S. Army Installation Management Command (IMCOM) implemented a strategic sourcing analysis of environmental services in FY 2007. IMCOM has chosen to implement many of the key findings from the analysis by establishing national indefinite delivery/indefinite quantity contracts that will allow IMCOM to more effectively contract for its environmental services. These include

  • Management and Professional Services
  • Environmental Compliance
  • Cultural Resources
  • Natural Resources

This strategic sourcing initiative is intended to improve environmental performance, ensure a consistent approach to environmental requirements, reduce the amount of time to award contracts and reduce contract costs.

Please continue to check this section for updated information.

Strategic Sourcing of Environmental Services Article from IMCOM Journal

The Summer 2008 edition of the IMCOM Journal includes an article on Strategic Sourcing of Environmental Services . The article explains why the Installation Management Command (IMCOM) is pursuing the strategic sourcing process, what steps are involved, and where we are going next in the area of environment. It also provides examples of how USAEC is already using strategic sourcing concepts successfully in Cultural Resources, Environmental Cleanup, and the Military Munitions Response Program.

United States v. Atlantic Research Corporation, 551 U.S. 128 (2007)

United States v. Atlantic Research Corporation is one of the most important cases decided by the Supreme Court under the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA), also known as the Superfund statute.

CERCLA is designed to provide a mechanism to facilitate the cleanup of historically contaminated properties. CERCLA comes into play when there is a “release” of hazardous substances at a “facility,” which might be an old industrial plant, a landfill, the site of a spill, or any other contaminated area. Under CERCLA, parties (called “potentially responsible parties,” or “PRPs”) that owned the contaminated site, operated it, arranged for the disposal of hazardous substances at the site, or transported wastes there, may be liable for cleanup costs.

The Environmental Protection Agency (EPA) may either clean up a Superfund site itself and then recover its costs from PRPs, or may order PRPs to undertake the cleanup themselves. Under section 107 of CERCLA, PRPs are jointly and severally liable for the government's cleanup cost, so that the government need only sue one PRP for the entire cost; that defendant PRP would then have to sue other PRPs for “contribution,” in other words sue other PRPs for the amount the suing PRP paid above and beyond the suing party's “fair share” of the expenses of cleanup. A private party which cleans up a site may also sue other PRPs.

Before Atlantic Research , it was settled law that a PRP that cleaned up a site and sought a share of costs from other PRPs could only sue those PRPs for contribution under section 113 of CERCLA, and only in limited circumstances. In Atlantic Research , the owner of a facility that retrofitted rocket motors for the United States sued the Government for partial reimbursement of costs incurred in cleaning up contamination at the facility. Because precedent foreclosed a contribution action under section 113, the company sought reimbursement under section 107.

The United States District Court for the Western District of Arkansas dismissed the suit for failure to state a claim. On appeal, the Supreme Court decided that a party that cleans up a site can sue other PRPs under section 107 of CERCLA, and is not relegated to a contribution claim under section 113.

Statutory and Enforcement
Tools for the Cleanup, Reuse, and Revitalization of Contaminated Sites

“Participation in Management” Defined
A lender “participates in management” (and will not
qualify for the exemption) if the lender:

Exercises decision-making control over environmental compliance related to the facility, and in doing so, undertakes responsibility for hazardous substance handling or disposal practices;

Exercises control at a level similar to that of a manager of the facility, and in doing so, assumes or manifests responsibility with respect to day-to-day decision-making on environmental compliance; or

All, or substantially all, of the operational (as opposed to financial or administrative) functions of the facility other than environmental compliance.

The term “participate in management” does not include certain activities such as when the lender:

Inspects the facility;

Requires a response action or other lawful means to address a release or threatened release;

Conducts a response action under CERCLA § 107(d)(1) or under the direction of an on-scene coordinator;

Provides financial or other advice in an effort to prevent or cure default; or

Restructures or renegotiates the terms of the security interest; provided the actions do not rise to the level of participating in management.
After foreclosure, a lender who did not participate in management prior to foreclosure is not an “owner or operator” if the lender:

Sells, releases (in the case of a lease finance transaction), or liquidates the facility;

Maintains business activities or winds up operations;

Undertakes CERCLA § 107(d)(1) or under the direction of an on-scene coordinator; or

Takes any other measure to preserve, protect, or prepare the facility for sale or disposition; provided the lender seeks to divest itself of the facility at the earliest practicable, commercially reasonable time, on commercially reasonable terms. EPA considers this test to be met if the lender, within 12 months of foreclosure, lists the property with a broker or advertises it for sale in an appropriate publication.

General Docket
United States Court of Appeals for the Ninth Circuit
Court of Appeals Docket #: 09-17411 Docketed: 10/29/2009
Nature of Suit: 1893 Environmental Matters
USA, et al v. T.W. Arman, et al
Appeal From: U.S. District Court for Eastern California, Sacramento
Fee Status: Paid
Case Type Information:
     1) civil
     2) united states
     3) null

Originating Court Information:
District: 0972-2 : 2:91-cv-00768-JAM-JFM
Court Reporter: Kelly Ann O'Halloran
Trial Judge: John A. Mendez, District Judge
     Date Filed: 06/12/1991
     Date Order/Judgment:      Date Order/Judgment EOD:      Date NOA Filed:      Date Rec'd COA:
     09/29/2009      09/29/2009      10/23/2009      10/29/2009
Prior Cases:

Date Filed: 01/07/2009      Date Disposed: 02/18/2009      Disposition: Denied - Judge Order
Date Filed: 04/20/2009      Date Disposed: 07/28/2009      Disposition: Denied - Judge Order

Current Cases:

                      Plaintiff - Appellee
Joan M. Pepin
Direct: 202-305-4626
[COR LD NTC Government]
Environment & Natural Resources Division
P.O. Box 23795, L'Enfant Plaza Station
Washington, DC 20026-3795

Larry Corcoran, Esquire, Assistant U.S. Attorney
Direct: 202-305-0370
[COR NTC Assist US Attorney]
Environmental Enforcement Section
P.O. Box 7611, Ben Franklin Station
Washington, DC 20044-7611

Yoshinori H. T. Himel, Esquire, Assistant U.S. Attorney
Direct: 916-554-2760
[COR NTC Assist US Attorney]
Suite 10-100
501 I Street
Sacramento, CA 95814

                      Plaintiff - Appellee
Margarita Padilla, Supervising Deputy Attorney General
Direct: 510-622-2135
[COR NTC Dep State Aty Gen]
20th Floor
1515 Clay Street
Oakland, CA 94612-0550

Sara J. Russell, Esquire, Supervising Deputy Attorney General
Direct: 916-324-7853
[COR NTC Dep State Aty Gen]
Suite 125
1300 I Street
P.O. Box 944255
Sacramento, CA 94244-2550

William A. Logan, Jr.
Direct: 925-945-6792
[NTC Pro Se]
Logan & Giles LLP
2175 N. California Blvd.
Suite 310
Walnut Creek, CA 94596

William A. Logan, Jr.
Direct: 925-945-6792
[COR LD NTC Retained]
Logan & Giles LLP
2175 N. California Blvd.
Suite 310
Walnut Creek, CA 94596



BAYER CROPSCIENCE, INC., FKA Aventis CropScience USA, Inc.

                      Defendant - Appellant
William A. Logan, Jr.
Direct: 925-945-6792
[COR LD NTC Retained]
(see above)

           Plaintiffs - Appellees,









           Defendant - Appellant.
10/29/2009  1 
11 pg, 248.18 KB
DOCKETED CAUSE AND ENTERED APPEARANCES OF COUNSEL. SEND CADS: No. The schedule is set as follows: Transcript due for Orig Clerk USDC, Sacramento on 12/22/2009. Certificate of record due 12/29/2009. Appellant T. W. Arman, Appellant William A. Logan Jr. and Appellant Logan & Giles LLP opening brief due 02/08/2010. Appellee State of California and Appellee United States of America answering brief due 03/09/2010. Appellant's optional reply brief is due 14 days after service of the answering brief. [7112437] (GR)
10/29/2009  2 
10 pg, 211.73 KB
Filed Appellants T. W. Arman, William A. Logan, Jr. and Logan & Giles LLP Civil Appeals Docketing Statement. Served on 10/23/2009. [7112442] (GR)
12/10/2009  3 
2 pg, 30.85 KB
Filed order MOATT: (EC)Within 21 days after the date of this order, appellants shall move for voluntary dismissal of this appeal or show cause why it should not be dismissed for lack of jurisdiction. If appellants do not comply with this order, the Clerk shall dismiss this appeal pursuant to Ninth Circuit Rule 42-1. Briefing is suspended pending further order of the court. [7159804] (KD)
12/14/2009  4 
4 pg, 77.11 KB
Filed (ECF) Appellants William A. Logan, Jr. and Logan & Giles LLP response to order to show cause dated 12/10/2009. Date of service: 12/10/2009. [7164029] (WAL)
01/04/2010  5 
2 pg, 649.3 KB
Filed (ECF) notice of appearance of Joan M. Pepin for Appellee USA. Date of service: 01/04/2010. [7181008] (JMP)
01/04/2010  6  Added attorney Joan M. Pepin for USA, in case 09-17411. [7181057] (EL)
02/11/2010  7 
30 pg, 2.16 MB
Filed Appellant T. W. Arman motion "breatch of patent title, supersedeas writ de ejectione firmae....". Served on 02/08/2010. [7230966] (CW)
03/02/2010  8 
3 pg, 220.87 KB
Received from John F. Hutchens' notice regarding absolute & immediate injunctive relief. [7249887] (EL)
03/08/2010  9 
2 pg, 137.21 KB
Received from John Hutchens' Breve Soke, served on 03/05/2010 [7256642] (EL)
03/11/2010  10 
2 pg, 28.89 KB
Filed order (MARY M. SCHROEDER and EDWARD LEAVY): The court has received and reviewed the response to this court's order to show cause. The jurisdictional issue does not appear suitable for summary disposition. Accordingly, the order to show cause is discharged. The court strikes the filings submitted by John F. Hutchens, a non-party to this appeal, received on February 11, 2010, March 2, 2010 and March 8, 2010, from the docket. If appellant has not already done so, appellant shall within 14 days after the date of this order, designate any reporter's transcripts or serve on appellee a statement indicating that appellant does not intend to order any transcripts. See 9th Cir. R. 10-3.1(a). If appellant designates transcripts, the transcripts will be due April 26, 2010. The opening brief and excerpts of record are due May 26, 2010; the answering brief is due June 25, 2010; and the optional reply brief is due within 14 days after service of the answering brief. [7262669] (AF)
05/25/2010  12 
1 pg, 32.68 KB
Filed certificate of record on appeal. RT filed in DC 12/17/08, 9/23/09 [7351079] (EL)
05/26/2010  11  14 day oral extension by phone of time to file Appellant Logan & Giles LLP brief. Appellant Logan & Giles LLP opening brief due 06/09/2010. Appellee State of California and Appellee United States of America answering brief due 07/09/2010. The optional reply brief is due 14 days after service of the appellee brief. [7350286] (TH)
06/09/2010  13 
27 pg, 64.43 KB
Submitted (ECF) Opening brief for review. Submitted by Appellants William A. Logan, Jr. and Logan & Giles LLP. Date of service: 06/09/2010. [7366866] (WAL)
06/09/2010  14  Received non-party John Hutchens' UNDER the great SEAL absolute order for inspection petition for emergency review order for reinstatement of claims etc, served on 6/9/10. [7367056] (EL)
06/10/2010  15 
2 pg, 81.46 KB
Filed clerk order: The opening brief [ 13 ] submitted by William A. Logan, Jr. and Logan & Giles LLP is filed. Within 7 days of the filing of this order, filer is ordered to file 7 copies of the brief in paper format, with a blue cover, accompanied by certification, attached to the end of each copy of the brief, that the brief is identical to the version submitted electronically. [7368096] (WP)
06/11/2010  16  Filed Appellants William A. Logan, Jr. and Logan & Giles LLP excerpts of record in 2 volumes. Served on 06/09/2010. [7374030] (WP)
06/17/2010  17  Received 7 paper copies of Opening brief [ 13 ] filed by William A. Logan, Jr. and Logan & Giles LLP. [7377357] (SD)
06/24/2010  18  Deleted Incorrect Docket Entry (LB)
06/24/2010  20  14 day oral extension of time granted to appellee USA. The answering brief for appellee USA is due 7/23/2010. The optional reply brief is due 14 days after service of the last-served answering brief. [7390098] (LB)
06/30/2010  19 
3 pg, 268.14 KB
Filed (ECF) Appellee State of California Correspondence: Letter to Clerk. Date of service: 06/30/2010 [7389577] (MP)
07/23/2010  21 
43 pg, 315.24 KB
Submitted (ECF) Answering brief for review. Submitted by Appellee USA. Date of service: 07/23/2010. [7415725] (JMP)
07/26/2010  22 
2 pg, 81.79 KB
Filed clerk order: The answering brief [ 21 ] submitted by USA is filed. Within 7 days of the filing of this order, filer is ordered to file 7 copies of the brief in paper format, with a red cover, accompanied by certification, attached to the end of each copy of the brief, that the brief is identical to the version submitted electronically. [7417446] (WP)
07/26/2010  23  Filed Appellee USA excerpts of record in 1 volume. Served on 07/23/2010. [7417457] (WP)
07/29/2010  24  Received 7 paper copies of Answering brief [ 21 ] filed by USA. [7422418] (SD)
08/05/2010  25  Oral extension of time granted to appellants T. W. Arman, William A. Logan, Jr. and Logan & Giles LLP. The reply brief is due 8/23/2010. [7435466] (LB)
08/23/2010  26 
7 pg, 24.79 KB
Submitted (ECF) Reply brief for review. Submitted by Appellants William A. Logan, Jr. and Logan & Giles LLP. Date of service: 08/23/2010. [7449230] (WAL)
08/24/2010  27 
2 pg, 81.79 KB
Filed clerk order: The reply brief [ 26 ] submitted by William A. Logan, Jr. and Logan & Giles LLP is filed. Within 7 days of the filing of this order, filer is ordered to file 7 copies of the brief in paper format, with a gray cover, accompanied by certification, attached to the end of each copy of the brief, that the brief is identical to the version submitted electronically. [7450466] (WP)
08/26/2010  28  Received 7 paper copies of Reply brief [ 26 ] filed by William A. Logan, Jr.. [7454559] (SD)
General Docket
United States Court of Appeals for the Ninth Circuit
Court of Appeals Docket #: 09-17411 Docketed: 10/29/2009
Nature of Suit: 1893 Environmental Matters
USA, et al v. T.W. Arman, et al
Appeal From: U.S. District Court for Eastern California, Sacramento
Fee Status: Paid
Case Type Information:
     1) civil
     2) united states
     3) null

Originating Court Information:
District: 0972-2 : 2:91-cv-00768-JAM-JFM
Court Reporter: Kelly Ann O'Halloran
Trial Judge: John A. Mendez, District Judge
     Date Filed: 06/12/1991
     Date Order/Judgment:      Date Order/Judgment EOD:      Date NOA Filed:      Date Rec'd COA:
     09/29/2009      09/29/2009      10/23/2009      10/29/2009
06/24/2010  20  14 day oral extension of time granted to appellee USA. The answering brief for appellee USA is due 7/23/2010. The optional reply brief is due 14 days after service of the last-served answering brief. [7390098] (LB)
06/30/2010  19  Filed (ECF) Appellee State of California Correspondence: Letter to Clerk. Date of service: 06/30/2010 [7389577] (MP)
07/23/2010  21  Submitted (ECF) Answering brief for review. Submitted by Appellee USA. Date of service: 07/23/2010. [7415725] (JMP)
07/26/2010  22  Filed clerk order: The answering brief [ 21 ] submitted by USA is filed. Within 7 days of the filing of this order, filer is ordered to file 7 copies of the brief in paper format, with a red cover, accompanied by certification, attached to the end of each copy of the brief, that the brief is identical to the version submitted electronically. [7417446] (WP)
07/26/2010  23  Filed Appellee USA excerpts of record in 1 volume. Served on 07/23/2010. [7417457] (WP)
07/29/2010  24  Received 7 paper copies of Answering brief [ 21 ] filed by USA. [7422418] (SD)
08/05/2010  25  Oral extension of time granted to appellants T. W. Arman, William A. Logan, Jr. and Logan & Giles LLP. The reply brief is due 8/23/2010. [7435466] (LB)
08/23/2010  26  Submitted (ECF) Reply brief for review. Submitted by Appellants William A. Logan, Jr. and Logan & Giles LLP. Date of service: 08/23/2010. [7449230] (WAL)
08/24/2010  27  Filed clerk order: The reply brief [ 26 ] submitted by William A. Logan, Jr. and Logan & Giles LLP is filed. Within 7 days of the filing of this order, filer is ordered to file 7 copies of the brief in paper format, with a gray cover, accompanied by certification, attached to the end of each copy of the brief, that the brief is identical to the version submitted electronically. [7450466] (WP)
08/26/2010  28  Received 7 paper copies of Reply brief [ 26 ] filed by William A. Logan, Jr.. [7454559] (SD)

§9-1301. Law governing perfection and priority of security interests

Except as otherwise provided in sections 9-1303 through 9-1306, the following rules determine the law governing perfection, the effect of perfection or nonperfection and the priority of a security interest in collateral. [ 1999, c. 699, Pt. A, §2 (NEW) ; 1999, c. 699, Pt. A, §4 (AFF) .]

(1).   Except as otherwise provided in this section, while a debtor is located in a jurisdiction, the local law of that jurisdiction governs perfection, the effect of perfection or nonperfection and the priority of a security interest in collateral. [ 1999, c. 699, Pt. A, §2 (NEW) ; 1999, c. 699, Pt. A, §4 (AFF) .] (2).   While collateral is located in a jurisdiction, the local law of that jurisdiction governs perfection, the effect of perfection or nonperfection and the priority of a possessory security interest in that collateral. [ 1999, c. 699, Pt. A, §2 (NEW) ; 1999, c. 699, Pt. A, §4 (AFF) .] (3).  Except as otherwise provided in subsection (4), while tangible negotiable documents, goods, instruments, money or tangible chattel paper is located in a jurisdiction, the local law of that jurisdiction governs: (a). Perfection of a security interest in the goods by filing a fixture filing; [ 1999, c. 699, Pt. A, §2 (NEW) ; 1999, c. 699, Pt. A, §4 (AFF) .] (b). Perfection of a security interest in timber to be cut; and [ 1999, c. 699, Pt. A, §2 (NEW) ; 1999, c. 699, Pt. A, §4 (AFF) .] (c). The effect of perfection or nonperfection and the priority of a nonpossessory security interest in the collateral. [ 1999, c. 699, Pt. A, §2 (NEW) ; 1999, c. 699, Pt. A, §4 (AFF) .] [ 2009, c. 324, Pt. B, §34 (AMD) ; 2009, c. 324, Pt. B, §48 (AFF) .] (4).   The local law of the jurisdiction in which the wellhead or minehead is located governs perfection, the effect of perfection or nonperfection and the priority of a security interest in as-extracted collateral. [ 1999, c. 699, Pt. A, §2 (NEW) ; 1999, c. 699, Pt. A, §4 (AFF) .] SECTION HISTORY 1999, c. 699, §A2 (NEW) . 1999, c. 699, §A4 (AFF) . 2009, c. 324, Pt. B, §34 (AMD) . 2009, c. 324, Pt. B, §48 (AFF) .


Public Health Goal
A revised PHG of 300 ^g/L was developed for copper in drinking water, based on a review 1
of the scientific literature since the original PHG, in 1997 (OEHHA, 2008). Copper is an
essential nutiient in humans, and has not been shown to be carcinogenic in animals or
humans. However, young children, and infants in particular, appear to be especially
susceptible to the effects of excess copper.
The revised PHG of 300 pig/L is two orders of magnitude greater than the applicable
numeric chemical-specific standards identified in ROD 5 for the protection of freshwater aquatic life

(see Table 1). Therefore, the revised PHG for copper wUl have no impact on the
protectiveness of the remedies originally selected in the RODs for IMM.

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




"Better late than never"

A tenant whose lease gives sufficient indicia of ownership to be considered an “owner” and who meets the elements of §§ 101(40)(A)-(H) and 107(r)(1).


Custody of prize ship. II.— Procedure In Prize Causes. Proceedings by Captor*.

16. Every ship taken as prize, and brought into port within the jurisdiction of a Prizo Court, shall forthwith, and without bulk broken, be delivered up to the marshal of the Court.

If there is no such marshal, then the ship shall be in like manner delivered up to the principal officer of Customs at the port.

The ship shall remain in the custody of the marshal, or of such officer, subject to the orders of the Court.

“Actual robbery is not an essential element in the crime of piracy jure gentium.

A frustrated attempt to commit a piratical robbery is equally piracy jure gentium.”

The U.S. District Court for the District of Maryland has determined that the requirements for innocent landowners contained in the 2001 Small Business Relief and Brownfields Revitalization Act do not apply retroactively. Accordingly, the court ruled that a landowner may file a CERCLA Section 107 cost recovery action against a waste generator because the landowner had fulfilled the innocent landowner requirements that were in place when the property was purchased.

The case involves a contaminated site where Mineral Pigments Corporation (which later became known as Rockwood Pigments NA, Inc.) dumped metal-bearing wastes into sand and gravel pits during the 1960s and 1970s. Later, 1325 G Street Associates ( G Street ) bought the site without realizing that it was contaminated.

The court ruled that Rockwood must reimburse G Street more than $181,000 for past response costs. Further, the court held that Rockwood is liable for G Street 's future response costs at the site. The September 7, 2004 decision was handed down in 1325 G Street Associates, LP v. Rockwood Pigments NA, Inc. (Docket Number: DKC 2002-1622).

Site History

Since the 1960s, Mineral Pigments Corporation (now Rockwood Pigments NA, Inc.) has manufactured metal-based pigments for use in paints and other products at its facility in Beltsville , Maryland . Wastes containing chromium, lead, and zinc are generated during the processes. From the late 1960s to the early 1970s, pigment wastes were disposed in mined-out sand and gravel pits located on land then owned by the Contee Sand and Gravel Company, Inc. (CSG). The CSG site is located approximately one mile west of the Mineral Pigments facility. During this period, about 50,000 gallons of liquid waste sludge containing lead, chromium, and zinc were dumped at the CSG site every two weeks....


INNOCENCE, PRESUMPTION OF - The indictment or formal charge against any person is not evidence of guilt. Indeed, the person is presumed by the law to be innocent. The law does not require a person to prove his innocence or produce any evidence at all. The Government has the burden of proving a person guilty beyond a reasonable doubt, and if it fails to do so the person is (so far as the law is concerned) not guilty.

Presumption of Innocence

The concept of the presumption of innocence had its roots in the Common Law, long established in Britain and thence in America . Besides being a part of the environment of justice in which our Founders lived, the concept is central to the ideas of Freedom and Due Process of Law. In addition, the common sense of any reasonably enlightened people must dictate that a person accused is innocent until proven guilty, just as much as they would believe that the other rights of defendants must be reasonably protected. Those protections for the accused were incorporated by the Founders into the Fourth, Fifth, Sixth and Seventh Articles of the Bill of Rights , and could not have been of any import had there not first been a presumption of innocence.

A close parallel to the presumption of innocence is the presumption of freedom -- that freedom is not something the government rations to the people, but rather a birthright the people own in its entirety, to be loaned back in small parts to the government with their knowing consent. The presumption of freedom is guaranteed by the Ninth and Tenth Articles of the Bill of Rights -- too often made light of today, but of key importance to the concept of individual Liberty . Those Articles demand, in essence, that unless specifically stated to the contrary by the Constitution, the people shall be presumed to own every freedom, as well as the power of self-determination.

If a citizen cannot be presumed innocent until proven guilty, he likewise will not be presumed to have freedom without an argument over his right to that freedom. At that juncture, both freedom and innocence yield to the convenience of government.

In both cases, the opposite must prevail if we are to call ourselves Americans.

The principle that there is a presumption of innocence in favor of the accused is the undoubted law, axiomatic and elementary, and its enforcement lies at the foundation of the administration of our criminal law.

It is stated as unquestioned in the text-books, and has been referred to as a matter of course in the decisions of this court and in the courts of the several States. See Taylor on Evidence, vol. 1, c. 5, 126, 127; Wills on Circumstantial Evidence, c. 5, 91; Best on Presumptions, part 2, c. 1, 63, 64; c. 3, 31-58; Greenleaf on Evidence, part 5, ? ? 29, &c.; 11 Criminal Law Magazine, 3; Wharton on Evidence, ? 1244; Phillips on Evidence, Cowen & Hill's Notes, vol. 2, p. 289; Lilienthal v. United States, 97 U.S. 237; Hopt v. Utah, 120 U.S. 430; Commonwealth v. Webster, 5 Cush. 295, 320; State v. Bartlett, 43 N.H. 224; Alexander v. People, 96 Illinois, 96; People v. Fairchild, 48 Michigan, 31; People v. Millard, 53 Michigan, 63; Commonwealth v. Whittaker, 131 Mass. 224; Blake v. State, 3 Tex. App. 581; Wharton v. State, 73 Alabama, 366; State v. Tibbetts, 35 Maine, 81; Moorer v. State, 44 Alabama, 15.
Greenleaf traces this presumption to Deuteronomy , and quotes Mascardus De Probationibus to show that it was substantially embodied in the laws of Sparta and Athens . Greenl. Ev. part 5, section 29, note. Whether Greenleaf is correct or not in this view, there can be no question that the Roman law was pervaded with the results of this maxim of criminal administration , as the following extracts show:

"Let all accusers understand that they are not to prefer charges unless they can be proven by proper witnesses or by conclusive documents, or by circumstantial evidence which amounts to indubitable proof and is clearer than day." Code, L. IV, T. XX, 1, 1. 25.

The noble (bivus) Trajan wrote to Julius Frontonus that no man should be condemned on a criminal charge in his absence, because it was better to let the crime of a guilty person go unpunished than to condemn the innocent ." Dig. L. XLVIII, Tit. 19, 1. 5.
"In all cases of doubt, the most merciful construction of facts should be preferred." Dig. L. L, Tit. XVII, 1. 56.
"In criminal cases the milder construction shall always be preserved." Dig. L. L, Tit. XVII, 1. 155, s. 2.
"In cases of doubt it is no less just than it is safe to adopt the milder construction." Dig. L. L, Tit. XVII, 1. 192, s. 1.

Ammianus Marcellinus relates an anecdote of the Emperor Julian which illustrates the enforcement of this principle in the Roman law. Numerius, the governor of Narbonensis, was on trial before the Emperor, and, contrary to the usage in criminal cases, the trial was public. Numerius contented himself with denying his guilt, and there was not sufficient proof against him. His adversary, Delphidius, "a passionate man," seeing that the failure of the accusation was inevitable, could not restrain himself, and exclaimed, "Oh, illustrious Caesar! if it is sufficient to deny, what hereafter will become of the guilty?" to which Julian replied, "If it suffices to accuse, what will become of the innocent?" Rerum Gestarum, L. XVIII, c. 1. The rule thus found in the Roman law was, along with many other fundamental and humane maxims of that system, preserved for mankind by the canon law. Decretum Gratiani de Presumptionibus, L. II, T. XXIII, c. 14, A.D. 1198; [***492] Corpus Juris Canonici Hispani et Indici, R.P. Murillo Velarde, Tom. 1, L. II, n. 140. Exactly when this presumption was in precise words stated to be a part of the common law is involved in doubt. The writer of an able article in the North American Review, January, 1851, tracing the genesis of the principle, says that no express mention of the presumption of innocence can be found in the books of the common law earlier than the date of McNally's Evidence (1802). Whether this statement is correct is a matter of no moment, for there can be no doubt that, if the principle had not found formal expression in the common law writers at an earlier date, yet the practice which flowed from it has existed in the common law from the earliest time.

Fortescue says : "Who, then, in England can be put to death unjustly for any crime? since he is allowed so many pleas and privileges in favor of life; none but his neighbors, men of honest and good repute, against whom he can have no probable cause of exception, can find the person accused guilty. Indeed, one would much rather that twenty guilty persons should escape the punishment of death than that one innocent person should be condemned and suffer capitally ." De Laudibus Legum Angliae, Amos' translation, Cambridge , 1825.

[*456] Lord Hale (1678) says : "In some cases presumptive evidence goes far to prove a person guilty, though there be no express proof of the fact to be committed by him, but then it must be very warily pressed, for it is better five guilty persons should escape unpunished than one innocent person should die." 2 Hale P.C. 290. He further observes: "And thus the reasons stand on both sides, and though these seem to be stronger than the former, yet in a case of this moment it is safest to hold that in practice, which hath least doubt and danger, quod dubitas, ne faceris." 1 Hale P.C. 24.

Blackstone (1753-1765) maintains that "the law holds that it is better that ten guilty persons escape than that one innocent suffer." 2 Bl. Com. c. 27, margin page 358, ad finem. How fully the presumption of innocence had been evolved as a principle and applied at common law is shown in McKinley's case (1817), 33 St. Tr. 275, 506, where Lord Gillies says: "It is impossible to look at it [a treasonable oath which it was alleged that [**404] McKinley had taken] without suspecting, and thinking it probable, it imports an obligation to commit a capital crime. That has been and is my impression. But the presumption in favor of innocence is not to be reargued by mere suspicion. I am sorry to see, in this information, that the public prosecutor treats this too lightly; he seems to think that the law entertains no such presumption of innocence. I cannot listen to this. I conceive that this presumption is to be found in every code of law which has reason, and religion, and humanity, for a foundation. It is a maxim which ought to be inscribed in indelible characters in the heart of every judge and juryman; and I was happy to hear from Lord Hermand he is inclined to give full effect to it. To overturn this, there must be legal evidence of guilt, carrying home a decree of conviction short only absolute certainty."

Purchasers who acquire property without knowledge of contamination on the property.

Sec. 9601. Definitions   For purpose of this subchapter-- (1) The term ``act of God'' means an unanticipated grave natural disaster or other natural phenomenon of an exceptional, inevitable, and irresistible character, the effects of which could not have been prevented or avoided by the exercise of due care or foresight.

Water Rights:

Water rights in California can be held by any legal entity. There are no restrictions on who can hold water rights, thus the owner can be an individual, related individuals, non-related individuals, trusts, corporations, government agencies, etc.. Water rights are considered real property (they can be owned separately from the land on which the water is used or diverted) and can be transferred from one owner to another, both temporarily or permanently. Any transfer (sale, lease, or exchange) is subject to approval by the State Water Board through the application process discussed above. Approval is granted upon finding that the transfer would not result in injury to any other water right and would not unreasonably affect fish, wildlife, or other instream beneficial use.

An appropriative water right in California can be maintained only by continuous beneficial use, and can be lost by five or more continuous years of non-use. Riparian rights, on the other hand, cannot be lost through non-use. Appropriative rights can also be lost through abandonment, but to constitute abandonment of an appropriative right, there must be the intent not to resume the beneficial use of the water right. As a result, abandonment is always voluntary. The rights to waters lost through abandonment or non-use revert to the public, but only after notice has been given and a public hearing is held.


In California, adjudication can be initiated through the court or through statutory procedures. Court initiated adjudication occurs when a water right lawsuit is filed in court (all surface and ground water rights may be included in this procedure). In the case of a court initiated adjudication, the court often asks the State Water Board to act a referee and to conduct an investigation and report back. Statutory adjudications result when one or more entities claim a right from a specific source and file a petition with the State Water Board. The statutory procedure can be used to determine all rights to any body of water including percolating groundwater. The result of a statutory adjudication is a decree that integrates all rights on the water source and sets quantity, season, priority, etc..

California statute«.— (1) Under Civ. Code § 1007, the running of limitations operates on the state in respect to any property not dedicated to public use as soon as adverse possession thereof begins without reference to a presumed grant. Peo. v. Banning Co., 140 P 587. (2) A reservation of swamp lands of the state from s.-ile by state statute is a mere restriction on the general power delegated to the officers of the state to sell swamp lands, and the lands may be acquired by adverse possession, unless dedicated to a public use. Peo. v. Banning Co., 140 P 587. (3) Where tidelands of the state have been dedicated to a public use, there can be no adverse possession thereof to start the running of limitations against any action by the state or its authorized agencies to assert the public right or such possession as will give title by prescription to the adverse claimants against the public right. Peo. v. Banning Co., 140 P 587. (4) It has been held by the supreme court of the United States that the statute declares that the people of the state will not sue any person for or in respect of any real property by reason of the right or title of the people to the same, unless certain facts exist, was held to be obviated, as regards land in the bay of San Francisco beyond the established harbor line, by the act creating the board of state harbor commissioners and directing them to take possession of all that portion of the bay lying beyond the established harbor line. Weber v. Harbor Comrs., 18 Wall. 57, 68, 21 L. ed. 798. The court In this case said:

"It is contended with much force that the statute only applies to lands which the State holds, as private proprietor, for sale or other disposition, and in respect to which the title may be lost by adverse possession, as defined in the same statute, and not to lands which she holds as sovereign In trust for the public. . . . Where lands are held by the State simply for sale or other disposition, and not as sovereign in trust for the public, there Is some reason in requiring the assertion of her rights within a limited period, when any portion of such lands Is intruded upon, or occupied without her permission, and the policy of the statute would be carried out by restricting its application to such cases."

11-] In Minnesota it is held, however, under the statutory provision that the limitations for the commencement of actions "shall apply to the same actions when brought in the name of the state, or in the name of any officer," etc., that no distinction can be made between actions brought as "sovereign" or In a governmental capacity and those brought as "proprietary" or such as a private person might bring. St. Pnul v. Chicago, etc., R. Co., 45 Minn. 387, 48 NW 17.

46. Buckner v. Ktrkland, 110 S W 399, 33 KyL 603.

47. State v. Seattle, 57 Wash. 602, 107 P 827, 27 LRANS 11S8.

48. Rochester v. Kennedy, 229 Pa. 251, 78 A 133; Bagley v. Wallace, 16 Serg. & R. (Pa.) 245; State v. Arledge, 18 S. C. L. 401, 23 AmD 145. And see cases Infra this note. Compare Chamberlain v. Ahrens, 55 Mich. Ill, 20 NW 814 (where it was said that before the express statutory enactment title could be acquired to land owned by the state and held In a proprietary right as distinguished from lands held In trust for the public).

??] Where lands have been forfeited to the »täte under the delinquent tax laws or otherwise, (1) they cannot be the subject of adverse possession while the title thus acquired remains in the state. Bagley v. Wallace, 16 Serg. & R. (Pa.) 245. (2) And if the lands were held adversely to the owner at the time of the forfeiture the adverse character of the occupancy ceases when the state acquires title and cannot be asserted against either the state or its grantee. Armstrong v. Morrill, 14 Wall. (U. S.) 120, 20 L. ed. 765; Hall v. Gittings, 2 Harr. & J. (Md.) 112: Levasser v. Washburn, 11 Gratt. (52 Va.) 572. 578; Hale v. Branscum, 10 Gratt. (51 Va.) 418; Staats v. Board, 10 Gratt. (51 Va.) 400; Hall v. Webb, 21 W. Va. 318. In Levas.scr v. Washburn, supra, it was said; "It Is true, in a certain sense, the commonwealth takes the land on forfeiture in the same plight and condition in which It stood at the time of the forfeiture. The commonwealth takes the estate and title of the former owner, and no other. If at the time of the forfeiture his title were absolutely bound by the adversary possession of another, it may be no title would vest in the commonwealth, unless it were saved by the existence of her lien on the land for arrears of taxes; a point upon which I express no opinion. But if when the forfeiture accrued the right of entry still remained to the owner, though an ad versary possession had been commenced, the possession as to her must lose Its adversary character, and she must take and hold the subject with the same rights, privileges and immunities which pertain to any other lands held by her In her demesne. I can perceive no good reason why any discrimination should be made, or why she should hold forfeited lands upon different principles and with diminished privileges from those applying to other subjects of similar character."

| $ 448] 2. Time When the Statute Commences to Run—a. General Rule. The statute begins to run against a grantee of the sovereignty only from the time when he acquires title; in view of the rule excluding the government from the operation of the

statute an occupancy prior to that time will not be deemed adverse and can have no effect to give title by adverse possession against grantees of the federal 53 or state governments. 64 The applications of this general rule, however, are not uniform, as will hereinafter appear.

[§ 449] b. Applications of Rule—(1) Introductory Statement. Since there is a difference of opinion as to just when the title of the federal or state government passes to a grantee 55 the cases do not agree in the application of the above stated general rule.

[4 450] (2) Grantees of the Federal Government—(a) Rule That Patent Must Issue—aa. In General. On the ground that the title of the United States does not pass until the issuance of a patent it is held by one line of cases that the statute runs against a purchaser from the federal government only from the date of his patent. 50

[b] Escheat. —Title by adverse possession cannot be acquired in lands which have escheated to the state. Harlock v. Jackson, 5 S. C. L. 254, 6 S. C. L. 135: Ellis v. State, 3 Tex. Civ. A. 170, 21 SW 68. 24 SW 660.

Religion, sovereignty, natural rights, and the constituent elements of experience


It is commonly held that the idea of natural rights originated with the ancient Greeks, and was given full form by more modern philosophers such as John Locke, who believed that natural rights were apprehensible primarily to reason. The problem with this broad position is three-fold: first, it is predicated on the presumption that the idea of rights is modern, biologically speaking (only twenty three hundred years separates us from the Greeks, and three hundred from the English liberals); second, it makes it appear that reason and rights are integrally, even causally, linked; finally, it legitimizes debate about just what rights might be, even in their most fundamental essence. In consequence, the most cherished presumptions of the West remain castles in the air, historically and philosophically speaking. This perceived weakness of foundation makes societies grounded on conceptions of natural right vulnerable to criticism and attack in the most dangerous of manners. Most of the bloodiest battles and moral catastrophes of the twentieth century were a consequence of disagreement between groups of people who had different rationally-derived notions of what exactly constituted an inalienable right ("from each according to his ability, to each according to his need"). If natural rights are anything at all, therefore, they better be something more than mere rational constructions. The adoption of a much broader evolutionary/historical perspective with regards to the development of human individuality and society allows for the generation of a deep solution to this problem—one dependent on a transformation of ontology, much as moral vision. Such a solution grounds the concept of sovereignty and natural right back into the increasingly implicit and profoundly religious soil from which it originally emerged, and provides a rock-solid foundation for explicit Western claims for the innate dignity of man.


obiter dictum in the whole decision of
Judge Ross is the following: "The power to absolutely
prevent the use of such waters for the objectionable purposes
necessarily includes the power to prescribe the terms and
conditions upon which they may be so used." (81 Fed. Rep.
254.) Taken in connection with the facts of the case, however,
this language would simply mean : "The power to absolutely
prevent the use of such waters for the objectionable
purposes necessarily includes the power to prescribe the
terms and conditions without which they mav not be so used."
P*"^~ The decision simply decides the constitutional right of the
government to protect the navigability of the streams by
closing down, through legislation, any hydraulic mine in
these watersheds which has not submitted itself to the jurisdiction
of the commission. The miner will not be heard
to say in resistance that he is being deprived of his property
without due process of law. That is settled, but that is all
that is settled, by the judicial construction thus far given to
the Act. Is the working of the Act reciprocal? The miner
is bound with hooks of steel; but how about the farmer is
he likewise bound? Is the State of California bound? For
the purposes of any miner who desires to take his chances
under the act, the test of its constitutionality should be made
in some case brought against a company or person operating
under a duly obtained permit from the commission, and
not in a case against a company or person not operating
under such permit. Moreover, the test should be made in
defending a case where a farmer attacks the Act on the
ground that some constitutional right of his is being
abridged, or where the people of the State of California (on
relation of the Attorney-General) attack it on the ground
that some of their constitutional rights are being abridged,
by the action of a miner operating under a duly obtained permit
from the commission. No other test will settle the point.
The permit of the commission is already a finality as far as
the miner is concerned. Is it a finality as far as the farmer
and the State are -concerned? To settle this point, the ques

tions to be presented by a farmer or by the State, under the
two sets of cases above set forth, are the following : Is, or
is not, the act contrary to the provisions of the fifth amendment
to the Constitution of the United States? Does, or
does not, the act, directly or indirectly, deprive any person
of property without due process of law? Is the State deprived
by the Act of any right guaranteed to it in the Constitution
of the United States, or therein implied? It is contended
in behalf of the miner that neither the farmer nor the
State is deprived by the Act of any property or right without
due process of law; that, inasmuch as the commission has
complete jurisdiction to modify or revoke its permit at any
time, the farmer and the State are not necessarily deprived
by the Act of any "day in court" either may desire. Obviously,
unless the permit of the commission contemplated by
the Act is a finality as far as the courts are concerned, the
statute is an injury instead of a boon to the miner. If, however,
the permit is such a finality, and the Act is declared
constitutional in such a case as the above, then the farmer
and the State will, instead of going into the courts, have to
submit to the jurisdiction of the commission equally with
the miner, and the present threatened interminable litigation
would be at an end. The sooner the question is conclusively
settled the better, if there is to be any practical resumption
of hydraulic mining in the basins of the Sacramento and
San Joaquin Rivers.
In the basins of the Klamath and the Trinity, on the
other hand, hvdraulic mining is happily free. Nature, that
has handicapped the industry in one section of the State, has
favored it in another. These rivers are non-navigable, and
their banks for the most part precipitous. In these river
basins the only foe the industry has to contend with is the
occasional blackmailer. The courts have, however, mitigated
the power of these people for evil in two well-considered
decided cases. The rule of the decisions with reference
to hydraulic mining or navigable streams is separated
by a district cleavage from the rule with reference to non

navigable running streams. Judge Field, always the friend
of mining, in a decision of the Supreme Court of the
United States (Atchison vs. Peterson, 20 Wallace, 507), upheld
the refusal of the lower court (in Montana) to issue a
writ of injunction where a prior appropriator of water claimed
his water was injured by tailings from a hydraulic mine,
pointed out the extreme reluctance that should guide courts
in the issuance of this writ, and held that the question
whether, upon a petition or bill, asserting the prior rights of
the first appropriator have been invaded, a court of equity
will interfere to restrain the acts of the party complained of,
will depend on the character and extent of the injury alleged,
whether it be irremediable in its nature, whether an action at
law would afford adequate remedy, whether the parties are
able to respond for the damages resulting from the injury, and
other considerations.
Nor is the adjoining mine owner permitted to become a
dog in the manger. The Supreme Court of this State on
March 18, 1896, rendering its decision in the case of Jacob
vs. Day, (in Cal. 571), held that the use of water for the
purpose of carrying off the tailings, and the construction of
a ditch to aid therein, are as essential to the successful conduct
of hydraulic mining, as is the first use to which the water
is put in washing down the natural bank; and that the title
to an adjoining mine passes under patent from the United
States subject to the easement of the right of way for a ditch
used, in accordance with focal mining customs, as a tailrace
from a hydraulic mine across the patented ground prior to
the patent under the provisions of sections 2339 and 2340
of the Revised Statutes of the United States. That the easement
for the tailrace of a hydraulic mine is not an easement
for drainage within the meaning of section 2338 of the Revised
Statutes of the United States, excluding easements for
drainage from the purview of the act of Congress; but it is
a right to the use of water for mining purposes and for the
construction of ditches for such purposes within the meaning
of sections 2339 and 2340 of said statutes. That an ease

ment must be used in such a manner as to impose as slight
a burden and damage as possible; but where a tailrace of a
hydraulic mine is an easement upon patented mining ground,
the fact that the running of tailings through the tailrace in
the ordinary course of mining caused a small portion of the
ground alongside of the ditch to cave down and wash away,
and caused the tailrace to cut farther into the bedrock, but
without material and appreciable injury to the plaintiff, does
not entitle the owner of the patented ground to an injunction.
While the. law of mining has through enactment and decision
gradually become settled, until there remains but comparatively
few doubtful points to be still construed, and but
few amendments to better the legislation we already have,
mining itself in the great ledges of California is little more
than begun. It is true that, except where some ancient
river channel is occasionally found, the days of the placers
are passing with the romance and the glamour of
the Pioneers. Quartz mining is destined, however, to
be a permanent industry of the State. New men,
new methods, and increased facilities for operations have
made of it a recognized business instead of a gamble. The
history of the law of mining in the future will more and more
partake of the general features incident to litigation growing
out of other industries, and the element of uncertainty will
be confined more and more to that element of uncertainty
found in all litigation; that which is produced by the shifting
sands of evidence,
Jackson, Cal., Dec. 9, 1901



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

CALIFORNIA - COPPER, CADMIUM, AND ZINC; QAPP Information: QA Info Missing; Not one biota, not one iota; No further evidence required to facially apparent facts

05/01/ 1986 P R C Environmental Management, Inc. Environmental Protection Agency - Office of Waste Programs Enforcement Endangerment assessment draft final rpt, w/TL to T Mix fr T Brisbin 51189

12/15/2000 C H 2 M Hill Environmental Protection Agency - Region 6FSP, QAPP, Health & Safety Plan for surface-water sampling 103636

03/17/1997 Charles Alpers / US Geological Survey Richard Sugarek / Environmental Protection Agency - Region 9Ltr: Transmits QAPP, draft workplan, & draft FSP, w/attchs

08/01/2001C H 2 M HillEnvironmental Protection Agency - Region 9Amended QAPP for air & surface-water sampling (QAPP & amendment 1)165834

Keswick dam to Cottonwood Creek; Final Listing Decision: Delist from 303(d) list. JUNE 15, 2010;

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

The powers reserved to the several States will extend to all the objects which in the ordinary course of affairs, concern the lives, liberties, and properties of the people, and the internal order, improvement, and prosperity of the State.” (James Madison, Federalist 45 )

Water: Initiation of Risk Assessments for Chemicals in Drinking Water [07/09/10]

Comparison of MCLs and PHGs for Regulated Contaminants in Drinking Water

Last Update:  July 24, 2010 This page compares maximum contaminant levels (MCLs) and public health goals (PHGs). 

Draft Clean Water Strategy is released

Posted by the EPA on August 20th, 2010 - 11:58 AM


Judge Maynard specific plan to stop, defund EPA

Rahall isn't doing anything about it. He hasn't done anything about it other than just saying the EPA is just doing their job. That's what he told the Beckley Register-Herald. That's what he said. We've got the clip. Call it what you want, but it's tyranny.”

“It is stunningly cruel for the government to do what it is doing to our people.

Maynard said the EPA has “no business” regulating carbon emissions and water quality.

“We need to change the legislation that gave them the power,” Maynard said. “Take it away from them. We need new leadership from the  EPA.”

Maynard said the EPA, and the Obama administration, are wrong in trying to eliminate mountaintop mining.
Maynard said the $787 billion federal stimulus bill passed by Congress was a failure.

“That is money that has been totally squandered and wasted and misspent,” Maynard said. “What has been done with it is shameful. It's really a trillion dollar package now because we've been paying interest on some of it. A lot of that money — even though my opponent denies it — created 6,000 jobs in China.”

Maynard said there were no appropriate checks and balances on the stimulus dollars.

Watchdog: Funny math used on AIG bailout

By Jennifer Liberto, senior writer October 25, 2010: 3:51 PM ET

WASHINGTON (CNNMoney.com) -- The Treasury Department made an overly rosy prediction of taxpayer losses on the AIG bailout by changing its accounting practices, the special investigator for the federal bailouts said in a report released Monday.

Special Inspector General Neil Barofsky's latest report to Congress also heaps new criticism on Treasury for taking credit for failed attempts to help homeowners with mortgages exceeding their home's value to secure modified loans.

Reporting directly to Congress, Barofsky reviews all the programs that came about due to the original $700 billion Troubled Asset Relief Program (TARP) that Congress passed during the height of the financial crisis in October 2008.

While Treasury can no longer spend any new money, due to the fund's expired lifespan of two years, Barofsky reported that $178.4 billion in bailout funds remain outstanding. In addition, Treasury has the ability to "obligate" another $80 billion that can still be spent under existing TARP programs.

"In short, it is still far too early to write TARP's obituary," the report concluded.

However, critics of the program seized on the report as further evidence of a failed policy.

"This report calls into significant question the very credibility and competence of the Treasury Department," Darrell Issa, a Republican congressman from California who is the ranking member of the House Oversight Committee, said in a statement.

Earlier this month, Treasury reported that its new plan to extricate the government from American International Group ( AIG , Fortune 500 ) would result in losses to taxpayers of around $5 billion, much less than the $45 billion that the agency reported in March.

While all the loss estimates were much lower than the $180 billion that government had said it might be willing to commit to propping up the insurer, Barofsky questioned Treasury's current accounting methodology on losses.

The report basically said Treasury's $5 billion loss estimate rests on market prices for common shares as of Oct. 1, ignoring "volatility in AIG's stock price." The estimate diverged from Treasury's past calculations that took other "data points" because "no comparable preferred shares exist," Treasury had previously said.

"This conduct has left Treasury vulnerable to charges that it has manipulated its methodology for calculating losses," the report said.

However, Treasury stood behind its calculation, saying it hasn't changed its methodology putting a value on taxpayer losses on the AIG bailout. Treasury said that when it comes to reporting to the auditors, it won't use the same technique, because its exit plan and the exchange of shares won't happen until 2011.

"SigTARP finds Treasury's contention that there was no change in its methodology to be unconvincing," the report said.

Issa said the most disturbing finding of the report is that large banks that pose a threat to the economy continue grow larger and enjoy tacit government support.

"The government has rewarded bad behavior while failing to do enough to deter that behavior from ever happening again," he said.

Help for homeowners

The inspector general's report also said Treasury took too much credit for helping homeowners who did not ultimately benefit from Treasury's Home Affordable Modification Program.

Treasury has said several times that its mortgage modification program has "helped" more than 1.3 million homeowners by reducing their monthly mortgage payments, calling each of these a "success," the report said.

However, Barofsky's team took issue with the level of success, saying more than 700,000 of the modifications ultimately failed and another 173,000 remained in limbo.

"They say for example that they've helped more than 1.3 million people through mortgage modifications, but more than half of those have failed," Barofsky said in an interview with CNNMoney.com's Poppy Harlow. "Then, they go and say, ' Well, each one of those had a significant benefit for the homeowner.' And that's just not true."

Treasury officials could not immediately be reached for comment after the release of the report. 

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Earnings roundup: AIG posts $2.5B loss, Harrah's Entertainment loss narrows
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AIG Posts $2.4 Billion Loss In 3Q
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California Choice of Law, Jurisdiction & Venue Clauses


TAKING, UNJUST - When the government acquires private property and fails to compensate an owner fairly. A taking can occur even without the actual physical seizure of property, such as when a government regulation has substantially devalued a property.

An otherwise valid exercise of the police power constitutes a taking for which compensation is due if the owner suffers a permanent, physical occupation of the property. Yee v. Escondido, 112 S. Ct. 1522 (1992); Lucas v. South Carolina Coastal Council, 112 S. Ct. 2886, 2900 (1992); Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419, 427-28 (1982); Pumpelly v. Green Bay Co., 80 U.S. (13 Wall.) 166 (1871); Ferguson, 852 P.2d at 207. Physical invasions have been found where the government interferes with the owner's "right to exclude." See, e.g., Kaiser Aetna v. United States, 444 U.S. 164 (1979) (public access to pond); Nollan v. California Coastal Comm'n, 483 U.S. 825 (1987) (public easement to beach); Loretto, 458 U.S. at 427-28 (installation of cable); Pumpelly, 80 U.S. at 166 (flooding); Hawkins v. City of La Grande, 843 P.2d 400 (Or. 1992) (one-time flooding).

However, the state may enter property to enforce a valid land use regulation and destroy the offending property. This does not amount to a physical occupation even where the government's activity has a permanent effect. See Miller v. Schoene, 276 U.S. 272, 278 (1928) (permitting state entomologist to enter property and destroy diseased trees without affecting a taking); see also Bowditch v. Boston, 101 U.S. 16, 18-19 (1880) (denying compensation to owners whose houses were destroyed to prevent spread of fire); Shaffer, 576 P.2d at 824-25 (finding that city may enter to demolish substandard vacant building without compensating owner). "[T]he government affects a physical taking only when it requires the land owner to submit to the physical occupation of his land." Ferguson, 852 P.2d at 207.

"There is, of course, no federal Constitutional right to be free from changes in the land use laws." Lakeview Dev. Corp. v. City of South Lake Tahoe, 915 F.2d 1290 (9th Cir. 1990), cert. denied, 501 U.S. 1251 (1991); see also William C. Haas & Co. v. City & County of San Francisco, 605 F.2d 1117 (9th Cir. 1979), cert. denied, 445 U.S. 928 (1980). To establish a violation of their right to substantive due process, the Dodds must prove that the County's actions were "clearly arbitrary and unreasonable, having no substantial relation to the public health, safety, morals, or general welfare." Euclid v. Ambler Realty Co., 272 U.S. 365, 395 (1926); see also Sinaloa Lake, 882 F.2d at 1407. A substantive due process claim requires proof that the interference with property rights was irrational and arbitrary. Usery v. Turner Elkhorn Mining Co., 428 U.S. 1, 15 (1976). Federal judicial interference with a local government zoning decision is proper only where the government body could have no legitimate reason for its decision. Minnesota v. Clover Leaf Creamery Co., 449 U.S. 456, 464 (1981); Herrington, 834 F.2d at 1498 n. 7. There is no denial of substantive due process if the question as to whether the government acted arbitrarily or capriciously is "at least debatable." Clover Leaf Creamery Co., 449 U.S. at 469.

According to the Supreme Court, an unconstitutional taking consists of two components: taking of property and subsequent denial of just compensation. If a property owner receives just compensation through the process the government provides, the property owner does not have a taking claim. Id. at 194-95. Williamson County Regional Planning Comm'n v. Hamilton Bank of Johnson City, 473 U.S. 172, 194 (1985).

Inverse condemnation suits do not provide only the just compensation required under state law. Rather, such suits are a method of obtaining the just compensation required by the Fifth and Fourteenth Amendments. "A landowner is entitled to bring an action in inverse condemnation as a result of the self-executing character of the constitutional provision with respect to compensation." First English Evangelical Lutheran Church v. County of Los Angeles, 482 U.S. 304, 315 (1987). "Claims for just compensation are grounded in the Constitution itself." Id. The state procedure Williamson County references is the procedure necessary to raise a federal taking claim in state court. Thus, under Williamson County, a taking claimant must litigate the federal constitutional claim through the processes the state provides.

The Supreme Court compared the process for making a claim against state or local governments to the process for making a claim against the federal government. A taking claim against the federal government is "premature until the property owner has availed itself of the process provided by the Tucker Act, 28 U.S.C. S 1491." Williamson County, 473 U.S. at 195 (citing Ruckelshaus v. Monsanto Co., 467 U.S. 986, 1016-1020 (1984)). The Tucker Act grants the U.S. Claims Court " `jurisdiction to render judgment upon any claim against the United States founded . . . upon the Constitution.' " Monsanto, 467 U.S. at 1017 (citing 28 U.S.C. S 1491). Thus, a Tucker Act taking claim is a claim for the just compensation required by the Fifth Amendment. The Supreme Court indicated that the Tucker Act procedure is analogous to the state proceedings claimants must follow to obtain just compensation from state and local governments. Williamson County, 473 U.S. at 195. Therefore, claimants following state procedures, like those utilizing the procedure established under the Tucker Act, should raise the federal just compensation requirement.

The decision in Williamson County, 473 U.S. 172 (1985), established two distinct requirements for taking claims under the rubric of ripeness:

First, "the government entity charged with implementing the regulations [must have] reached a final decision regarding the application of the regulations to the property at issue." 473 U.S. at 186.

Second, plaintiffs must have sought "compensation through the procedures provided by the State for obtaining such compensation." 473 U.S. at 195.

Both the final decision and compensation elements must be ripe before the claim is justiciable.

The final decision element is well-developed. Beginning with Penn Cent. Transp. Co. v. City of New York, 438 U.S. 104 (1978), Agins v. City of Tiburon, 447 U.S. 255 (1980), and Hodel v. Virginia Surface Min. & Reclamation Ass'n. Inc., 452 U.S. 264 (1981), the Court has declined to rule on taking claims when it believed the property owner had not received a final and definitive decision from a land use regulatory body on development of the property at issue. In Williamson County, the taking claim was unripe because there remained the "potential for . . . administrative solutions." 473 U.S. at 187 (landowner failed to seek variances that could have allowed development).

In applying the final decision requirement, we have emphasized that local decision-makers must be given the opportunity to review at least one reasonable development proposal before we will consider ripe an as-applied challenge to a land use regulation. See, e.g., Southern Pacific Transp. Co. v. City of Los Angeles, 922 F.2d 498, 503 (9th Cir. 1990), cert. denied, 502 U.S. 943 (1991); Kinzli v. City of Santa Cruz, 818 F.2d 1449, 1454 (9th Cir.), modified, 830 F.2d 968 (1987), cert. denied, 484 U.S. 1043 (1988). Finality also requires the local government to determine the type and intensity of development that land use regulations will allow on the subject property; this determination helps the court evaluate whether regulation of the subject property is excessive by identifying the extent of the regulation. See Herrington v. County of Sonoma, 857 F.2d at 570; Lai v. City and County of Honolulu, 841 F.2d 301, 303 (9th Cir.), cert. denied, 488 U.S. 994 (1988). Thus, a landowner may need to submit modified development proposals that satisfy the local government's objections to the development as initially proposed. Del Monte Dunes at Monterey, Ltd. v. City of Monterey, 920 F.2d 1496, 1501 (9th Cir. 1990); MacDonald, Sommer & Frates v. Yolo County, 477 U.S. 340, 351-53 (1986).

Once the appropriate state agency reaches a final decision, the second ripeness requirement of Williamson County, the compensation element, is triggered. A federal court lacks jurisdiction to consider an as-applied regulatory taking claim until a determination is reached that "just compensation" has been denied by the state: [B]ecause the Fifth Amendment proscribes taking without just compensation, no constitutional violation occurs until just compensation has been denied. The nature of the constitutional right therefore requires that a property owner utilize procedures for obtaining compensation before bringing a Section 1983 action. 473 U.S. at 194 n. 13 (emphasis added).

In Williamson County, the Court concluded that Hamilton Bank's taking claim was not ripe because the Bank failed to utilize available state procedures: Under Tennessee law, a property owner may bring an inverse condemnation action to obtain just compensation for an alleged taking of property under certain circumstances . . . [U]ntil it has utilized that procedure, its taking claim is premature. Id. at 196-97. See also Jama Const. v. City of Los Angeles, 938 F.2d 1045, 1047-48 (9th Cir. 1991) (Dismissed as unripe where plaintiff "did not seek compensation through California procedures before bringing its federal action."), cert. denied, 503 U.S. 919 (1992); Bateson v. Geisse, 857 F.2d 1300, 1306 (9th Cir. 1988) (Because Montana recognizes inverse condemnation under the State Constitution, plaintiff must "pursue [that claim] before he can state a [federal ] taking claim.").

[I]f a state provides an adequate procedure for seeking just compensation, the property owner cannot claim a violation of the Just Compensation Clause until it has used the procedure and been denied just compensation. 473 U.S. at 195.

The central concern of ripeness is whether the case involves uncertain or contingent future events that may not occur as anticipated, or indeed may not occur at all. 13A Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure S 3532 at 126 (citing Thomas v. Union Carbide Agr. Prods. Co., 473 U.S. 568, 580 (1985)). If an issue can be illuminated by the development of a better factual record, a challenge may be unripe. See Pacific Legal Found. v. State Energy Resources Conservation and Dev. Comm'n, 659 F.2d 903, 915 (9th Cir. 1981), aff'd on other grounds, 461 U.S. 190 (1983); Hoehne, 870 F.2d at 532. The Fifth Amendment action is not more "developed" or "ripened " through presentation of the ultimate issue -- the failure of a state to provide adequate compensation for a taking -- to the state court. Indeed, such a requirement would not ripen the claim, rather it would extinguish the claim. See Palomar Mobilehome Park v. City of San Marcos, 989 F.2d 362 (9th Cir. 1993). Declining to hear a case on ripeness grounds is appropriate in situations where there is a reasonable prospect that the state courts may adjust state law to avoid or alter the constitutional question. 13A Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure S 3532.5 at 126. But where deference rests instead "on the prospect that the state courts may entertain and decide the constitutional question, the issue of comity should be addressed directly without reliance on ripeness." Id.

The case law is clear that with the exception of federal habeas corpus review of state convictions under 28 U.S.C. S 2254, the determination of federal constitutional questions in state court systems may not be reviewed or repeated in the federal systems. The Court in Allen v. McCurry, 449 U.S. 90, 94, 104 (1980) said that"[t]he federal courts have traditionally adhered to the related doctrines of res judicata and collateral estoppel," excepting only "a federal writ of habeas corpus, the purpose of which is not to redress civil injury but to release the applicant from unlawful physical confinement."

[I]t has been established at least since Jacobs v. United States, 290 U.S. 13 (1933), that claims for just compensation are grounded in the Constitution itself. [The claim] rested upon the Fifth Amendment. Statutory recognition [by the state] was not necessary. [I]n the event of a taking, the compensation remedy is required by the Constitution. First English Evangelical Lutheran Church of Glendale v. County of Los Angeles, 482 U.S. 304, 315-16 (1987) (citations omitted).

Courts routinely have held that state procedures are considered inadequate only when state law provides no postdeprivation remedy for a taking. See Austin, 840 F.2d at 681 (Hawaiian courts and legislature had neither accepted nor rejected inverse condemnation action under Article I, Section 20 of the Hawaiian Constitution); Levald Inc. v. City of Palm Desert, 998 F.2d 680, 688 (9th Cir. 1993) ("the unavailability of state remedies is the functional equivalent of the denial of just compensation"), cert. denied, 114 S. Ct. 924 (1994); see also New Port Largo, Inc. v. Monroe County, 985 F.2d 1488, 1493-94 (11th Cir.) ("Florida law . . . provided no post-deprivation remedy."), cert. denied, 114 S. Ct. 439 (1993).

Oct 28


Filed Under Articles of Confederation , CONSTITUTION , LEARNING THE LAW , Northwest Ordinance , ORGANIC LAWS

The powers of all governments are almost universally conceded to be: legislative, executive and judicial and law is either written or unwritten law, so in the United States of America, where government is without equivocation believed to be tripartite, written law controls government. The surprise is that written law is limited to the territory owned by the United States of America, which is a simple definition of territorial jurisdiction.

The Constitution of September 17, 1787 and the Constitution of the United States are the two Constitutions that control the government of the United States, which is composed of territory belonging to the United States of America. The oft forgotten and erroneously reported as a dead Constitution, the Articles of Confederation of November 15, 1777, still guides and controls the federal government and Senate of the United States of America.

A word search of the Organic Laws of the United States of America for a clear connection of territorial jurisdiction with anyone of the three government powers reveals the obvious difference between the Articles of Confederation of November 15, 1777 and the Constitution of September 17, 1787. The subject of territorial jurisdiction in the Articles of Confederation of November 15, 1777 is purely a matter of the sovereign States involved in territorial disputes. This is consistent with the Articles of Confederation's purpose as an establishment of a defensive Union, without powers other than those expressly delegated. The Constitution of September 17, 1787 would, when ratified by nine States of the first Union create another Union of States composed of States primarily owned by the United States of America.

Both the kind of government and the territorial jurisdiction of a Government of the United States headed by a President of the United States is revealed in the Northwest Ordinance of July 13, 1787, which provides a temporary government for the federal district then known as the Northwest Territory. The temporary government for the Northwest Territory federal district became the permanent government for the District of Columbia and other territory and other property belonging to the United States of America, when nine States of the first Union ratified the Constitution of September 17, 1787. Ratification of this Constitution made the temporary territorial jurisdiction of the Northwest Ordinance of July 13, 1787 permanent.

Does the Constitution of September 17, 1787 expand the territorial jurisdiction of the permanent form of government proposed for the Northwest Territory? The answer has to be an unqualified no. Article IV Section 3 Clause 2 of that Constitution secures the proprietary power over “Territory or other Property belonging to the United States” meaning, of course, the United States of America. Territorial jurisdiction is rooted in the proprietary power of the Congress of the United States under the authority of the Articles of Confederation. The Constitution of September 17, 1787 only confers legislative power when ratified by nine States. Proprietary power can only be transferred by the conveyance of the territory or property.

What's the importance of knowing the difference between the territorial jurisdiction of the Articles of Confederation of November 15, 1777 and the Article IV Section 3 Clause 2 territorial jurisdiction of the Constitution of September 17, 1787? The Constitution of September 17, 1787 allows the States of the first and second Unions to draw the lines of a Congressional district even if there's no territory owned by the United States of America within the territory making up the district. Territory owned by the United States of America doesn't get the Representative a vote in the House of Representatives. Only Representatives with districts made up of territory not owned by the United States of America can vote on federal taxation legislation on settlers and inhabitants of territory owned by and ceded to the United States of America.


§ 409. b. New assignment.—Yet in many actions tha plaintiff, who has alleged in his declaration a general wrong, may in his replication, after an evasive plea by the defendant, reduce that them in the defamatory sense imputed by the innuendo, or in any defamatory or actionable sense which the words themselves imported, asserted that the occasion was privileged, and also denied that the words were spoken of the plaintiff in the way of his profession or trade, whenever they were alleged to have been so spoken. But now this compendious mode of pleading is abolished. "Not Guilty" can no longer be pleaded in a civil action. The defendant must deal specifically with every allegation of which he docs not admit the truth.

(iv) Demurrers were abolished. It is true that either party is still allowed to place on the record an objection in point of law, which is very similar to the former demurrer. But there is this important difference. The party demurring could formerly insist on having his demurrer separately argued, which caused delay. But now such points of law are argued at the trial of the action; it is only by consent of the parties, or by order of the court or a judge, that the party objecting can have the point set down for argument and disposed of before the trial. And, as a rule, such an order will only be made where the decision of the point of law will practically render any trial of the action unnecessary.

(v) Pleas in abatement were abolished. If cither party desires to add or strike out a party, he must apply by summons (see Kendall v. Hamilton, [1879] 4 App. Cas. 504; Pilley v. Robinson, [1887] 20 Q. B. D. 155; Wilson v. Balcarres Brook Steamship Co., [1893] 1 Q. B. 422). No cause or matter now "shall be defeated by reason of the misjoinder or nonjoinder of parties."

(vi) Equitable relief is now granted, and equitable claims and defenses are now recognized, in all actions in the high court of justice.

(vii) Payment into court was for the first time allowed generally in all actions.

(viii) The right of setoff was preserved unchanged; but a very large power was given to a defendant to counterclaim. He can raise any kind of crossclaim against the plaintiff, and in some cases even against the plaintiff with others, subject only to the power of a master or judge to order the claim

fraud."—(1) The word "fraud," as used in the statute providing that possession, to be the foundation of prescription, cannot originate in fraud, the fraud meant is actual fraud—a moral fraud, a wrongful act, and not a legal act which the law denominates a fraud regardless of the bona fides of the parties. Dixon v. Patterson, 135 Ga. 183, 69 SE 21: Floyd v. Ricketson, 129 Ga. 668, 59 SE 909; Bower v. Cohen, 126 Ga. 35, 54 SE 918: Arnold v. Limeburger, 122 Ga. 72, 49 SE 812; Street v. Collier, 118 Ga. 470, 45 SE 294; Connell v. Culpepper, 111 Ga. 805, 35 SE 667; Lee v. Ogden, 83 Ga. 325, 10 SE 349 [disappr Hunt v. Dunn, 74 Ga. 120]; Ware v. Barlow, 81 Ga. 1, 6 SE 465; Wingfleld v. Virgin, 51 Ga. 139. (2) "To defeat prescriptive title the fraud of the party claiming thereunder must be such as to charge his conscience. He must be cognizant of the fraud, not by constructive, but by actual notice." Shingler v. Bailey, 135 Ga. 666, 668, 70 SE 563 (per Atkinson, J.). (3) An honest mistake of law as to the effect of the writing cannot of course, amount to a moral fraud as against the true owner. Bower v. Cohen, supra.

98. Stark v. Starr, 22 F. Cas. No. 13,307, 1 Sawy. 15.

[a] Good faith, as contemplated by the law of prescription, has relation to the actual existing state of the mind, whether so from Ignorance, skepticism, sophistry, delusion, or imbecility, and without regard to what it should be from good legal standards of law or reason. It is not necessary therefore that the person claiming prescription should have taken the instrument relied on as evidence of his title under such honest belief only as would be entertained by an ordinarily intelligent man that the paper would give him a good title. If such paper was in law color of title and was taken honestly and In good faith, the degree of intelligence with which this was done would be immaterial. It is the bona fides which is important and not the amount of knowledge or mental capacity constituting the basis thereof. Lee v.

"Ordinary intelligence might, upon bare inspection know that an apparent title was worthless; and if the bona fides of the holding were to be tested by that standard, many cases would doubtless occur where a person of a lower order of Intelligence, in his ignorance of law, would learn with surprise that he had occupied the land and held his color of title in bad faith, while he believed in fact that it was genuine and sufficient."

[b] Bad faith cannot be Imputed to a claimant (1) by reason of failure, for several years after execution, to record the deed which is claimed to give color of title, there being no statute requiring it (Rawson v. Fox, 65 111. 200); or (2) because the deed described the land conveyed as situated in a disputed territory (Cornelius v. Giberson, 25 N. J. L. 1); or (3) because the claimant, a mortgagee who purchased at foreclosure sale, filed an insufficient affidavit as a basis for service by publication (Reedy v. Camfield, 159 111. 254, 42 NE 833); or (4) because the claimant, a purchaser at a tax sale, failed to comply with the statutory requirements as to notice governing the execution of tax deeds (Duck Island Club v. Bexstead, 174 111. 435, 51 NE 831; Dalton v. Lucas, 63 111. 337. And see also Whitney v. Stevens, 89 111. 53): or (5) because the deed under which the claimant holds was the result of a sale by a trustee not made in strict conformity to law (Brady v. Walters, 55 Ga. 25); or (6) because It appeared from the recitals in the deed that the property was sold at a day later than that fixed by statute (Hardin v. Crate, 60 111. 215); or (7) because the grantee in a tax deed failed to give notice of his application therefor, rendering the deed ineffectual to establish paramount title (Jackson v. Larson, 24 Colo. A. 548, 136 P 81); or (8) because at the time land was purchased from a widow something was said as to the possibility of her deceased husband's children having some interest in the land (Weng-er v. Thompson, 128 Iowa 750, 105 NW 333)-; or (9) because the contract of purchase under which claimant held was a verbal one, and the decree enforcing It reversible for error, the grantee not being bound to know the legal effect of a verbal contract for land or that a decree enforcing It was erroneous (Sexson v. Barker, 172 111. 361, 50 NE 109 [crit and not foil Bowman v. Wettig, 39 111. 416]); or (10) because the deed under which claimant holds shows on its face that the grantor is a nonresident alien incapable of inheriting (Hughes v. Wyatt. 146 Iowa 392, 125 NW 334); or (11) where the claimant, being aware of an outstanding tax title, goes to the holder, shows him his deed, and declares his purpose to be perfectly fair with him, and Is inTermed by the latter that he has no knowledge of possessing any Interest n the property, and that, if he ascertains that he does, he will Inform the purchaser, but never does so (Clark v. Sexton. 122 Iowa 310, 98 NW127).


The Supreme Court of the United States gave full recognition to the binding force of the local rules, regulations, usages and customs before the sanction of federal statutory enactment, and to the doctrine that they constitute the American common law of mines.

Sparrow vs. Strong, 3 Wall. 97, decided in 1865.
Jennison vs. Kirk, 98 U. S. 453, decided in 1878.



(reported IN 20 Wallace, 507.)


1  On the mineral lands of the public domain in the Pacific States and Territories, the doctrines of the common law, declaratory of the rights of riparian proprietors respectin the use of running waters, are inapplicable, or applicable only in a very limited extent, to the necessities of miners, and inadequate to their protection; their prior appropriation gives the better right to running waters to the extent, in quantity and quality, necessary for the uses to which the water is applied.

2  What diminution of quantity, or deterioration in quality, will constitute an invasion of the rights of the first appropriator will depend upon the special circumstances of each case; and in controversies between him and parties subsequently claiming the water, the question for determination is whether his use and enjoyment of the water to the extent of the original appropriation have been impaired by the acts of the other parties.

3  Whether, upon a petition or bill asserting that the prior rights of the first appropriator have been invaded, a court of equity will interfere to restrain the acts of the party complained of, will depend upon the character and extent of the injury alleged, whether it be irremediable in its nature, whether an action at law would afford adequate remedy, whether the parties are able to respond for the damages resulting from the injury, and other considerations which ordinarily govern a court of equity in the exercise of its preventive process of injunction.

Mr. T.W. Arman, proprietor of Iron Mountain Mine, splashing in acid mine drainage; "the world's worst water"?



As Justice Stone of the United States Supreme Court wrote in the 1930 case of  Collie v Ferguson :

"Events subsequent to the seizure do not give rise to liens against a vessel in custodia legis ."


During the New Deal Era, the Supreme Court began to depart from the Lochner era constitutional interpretation of the Commerce Clause , Due Process , and the Contract Clause.

In Home Building & Loan Association v. Blaisdell 290 U.S. 398 (1934), the Supreme Court upheld a Minnesota law that temporarily restricted the ability of mortgage holders to foreclose. The law was enacted to prevent mass foreclosures during a time of economic hardship in America . The kind of contract modification performed by the law in question was arguably similar to the kind that the Framers intended to prohibit. The Supreme Court held that this law was a valid exercise of the state's Police Power . It found that the temporary nature of the contract modification and the emergency of the situation justified the law.. [ 18 ]

Further cases have refined this holding, differentiating between governmental interference with private contracts and interference with contracts entered into by the government. Succinctly, there is more scrutiny when the government modifies a contract to alter its own obligations. (See United States Trust Co. v. New Jersey , 431 U.S. 1 (1977).) [ 18 ]

Modification of Private Contracts

The Supreme Court laid out a three-part test for whether a law violates the Contract Clause in Energy Reserves Group v. Kansas Power & Light 459 U.S. 400 (1983). First, the state regulation must substantially impair a contractual relationship. Second, the State "must have a significant and legitimate purpose behind the regulation, such as the remedying of a broad and general social or economic problem." 459 U.S. at 411-13 Third, the law must be reasonable and appropriate for its intended purpose. This test is similar to rational basis review. [ 18 ]

Modification of Government Contracts

In United States Trust Co. v. New Jersey , the Supreme Court held that a higher level of scrutiny was needed for situations where laws modified the government's own contractual obligations. In this case, New Jersey had issued bonds to finance the World Trade Center and had contractually promised the bondholders that the collateral would not be used to finance money losing rail operations. Later, New Jersey attempted to modify law to allow financing of railway operations, and the bondholders successfully sued to prevent this from happening. [ 19 ]

"Mr. Chairman: EPA's ability to effectively manage, oversee, and enforce the environmental laws under its jurisdiction, including the Clean Water Act, has been impeded by several factors including its current organizational structure, how it oversees State delegated authorities, and limitations in performance measurements. On the 37th anniversary of the Clean Water Act, we believe that a recommitment to the protection of the nation's waters can be achieved by an EPA that is strategically aligned to uniformly enforce environmental statutes and provide consistent oversight of its Regions and State delegations. This will require a comprehensive review of EPA's current organization and a commitment to implement best practices."

A Primer in Constitutional law

Congress' enumerated powers



Shares of fertilizer producers soar

Food prices and agriculture exchange traded funds (ETFs) both may reflect the news contained in the USDA's harvest projections.

The U.S. Department of Agriculture cut its harvest projections for corn, soybeans and wheat, adding fuel to the commodity-rally fire . Meanwhile, further concerns about a food shortage are becoming a reality. Scott Kilman and Liam Pleven for The Wall Street Journal report that the agency's decision to cut its month-old corn projection by 3.8% was startling to many. [ Commodity ETFs Are Leading The Charge. ]

Historically, though, the USDA's forecast for corn crops is still the third-largest ever.

Economists expect farmers to respond to high grain prices by planting millions more acres of corn and wheat , which should benefit sellers of seed and chemicals to farmers such as Monsanto Co. and DuPont Co. The larger threat comes from using other farmland for those commodities in a shortage in order to make up. This could in turn create another shortage.


IRON MOUNTAIN MINE - HEMATITAN™ $1200/TON - $45/ 5 gal. plus shipping





Metal Value Recovery from Metal Hydroxide Sludges: Removal of Iron

L. G. Twidwell and D. R. Dahnke are with Montana College of Mineral Science and Technology, Butte , MT 59701 .

John F. Martin is the €PA Project Officer (see below) The complete report, entitled “Metal Value Recovery from Metal Hydroxide Sludges: Removal of Iron and Recovery of Chromium,” (Order No. PB 88- 176 078lAS; Cost: $25.95, subject to change) will be available only from: National Technical Information Service 5285 Port Royal Road Springfield , VA 22 16 1 The EPA Project Officer can be contacted at: Hazardous Waste Engineering Research Laboratory U.S. Environmental Protection Agency Cincinnati , OH 45268

Results and Conclusions

An extremely large data base has been generated during the course of the present study for both the bench-scale and the large-scale test work. The bench-scale study results support the following conclusions:

The emphasis of the project was directed toward investigating the application of phosphate precipitation as a means of selectively separating iron and chromium from divalent cation species.
These objectives have been accomplished. Flowsheets and alternatives are discussed in the body of the main report. The developed flowsheets have been verified to be feasible by laboratory test work and selective metal value separations have been shown to be possible, e.g., iron and chromium can be separated from divalent metals such as zinc, nickel, and cadmium. Large-scale test work has also verified that effective separations are feasible and practical, and an economic evaluation has been performed showing that an excellent return on investment is possible.

NIST Releases 2009 Department of Commerce Technology Transfer Report


An efficient solution for the single-step synthesis of 4CaO * Al2O3 * Fe2O3 powders
Robert Ianos¸a)
“Politehnica” University of Timis¸oara, Faculty of Industrial Chemistry and Environmental
Engineering, Timis¸oara 300006, Romania
(Received 29 April 2008; accepted 8 October 2008)
Single-phase nanocrystalline 4CaOAl2O3Fe2O3 powders were prepared directly from
the combustion reaction using a new cost-effective, time-saving, and environmentally
friendly version of solution combustion synthesis. Instead of a single fuel, a fuel mixture
of urea and b-alanine was used. It was shown by x-ray diffraction, energy-dispersive
x-ray analysis, thermogravimetric analysis, and optical microscopy that this new version
of the solution combustion synthesis allows the maximization of the exothermic effect
associated with the combustion reaction. On the other hand, it was shown that the
traditional version of combustion synthesis involving the use of a single fuel, such as urea
or b-alanine, does not ensure the formation of Ca4Al2Fe2O10 unless subsequent thermal
treatments are applied. It was suggested that the occurrence of combustion reactions
cannot be regarded only in terms of adiabatic temperature, as the kinetic aspects overrule
the thermodynamic ones.


Sec. 123.27 Requirements for enforcement authority. (a) Any State agency administering a program shall have available the following remedies for violations of State program requirements: (1) To restrain immediately and effectively any person by order or by suit in State court from engaging in any unauthorized activity which is endangering or causing damage to public health or the environment; Note: This paragraph (a)(1) requires that States have a mechanism (e.g., an administrative cease and desist order or the ability to seek a temporary restraining order) to stop any unauthorized activity endangering public health or the environment. (2) To sue in courts of competent jurisdiction to enjoin any threatened or continuing violation of any program requirement, including permit conditions, without the necessity of a prior revocation of the permit; (3) To assess or sue to recover in court civil penalties and to seek criminal remedies, including fines, as follows: (i) Civil penalties shall be recoverable for the violation of any NPDES permit condition; any NPDES filing requirement; any duty to allow or carry out inspection, entry or monitoring activities; or, any regulation or orders issued by the State Director. These penalties shall be assessable in at least the amount of $5,000 a day for each violation. (ii) Criminal fines shall be recoverable against any person who willfully or negligently violates any applicable standards or limitations; any NPDES permit condition; or any NPDES filing requirement. These fines shall be assessable in at least the amount of $10,000 a day for each violation. Note: States which provide the criminal remedies based on ``criminal negligence,'' ``gross negligence'' or strict liability satisfy the requirement of paragraph (a)(3)(ii) of this section. (iii) Criminal fines shall be recoverable against any person who knowingly makes any false statement, representation or certification in any NPDES form, in any notice or report required by an NPDES permit, or who knowingly renders inaccurate any monitoring device or method required to be maintained by the Director. These fines shall be recoverable in at least the amount of $5,000 for each instance of violation. Note: In many States the State Director will be represented in State courts by the State Attorney General or other appropriate legal officer. Although the State Director need not appear in court actions he or she should have power to request that any of the above actions be brought. (b)(1) The maximum civil penalty or criminal fine (as provided in paragraph (a)(3) of this section) shall be assessable for each instance of violation and, if the violation is continuous, shall be assessable up to the maximum amount for each day of violation. (2) The burden of proof and degree of knowledge or intent required under State law for establishing violations under paragraph (a)(3) of this section, shall be no greater than the burden of proof or degree of knowledge or intent EPA must provide when it brings an action under the appropriate Act; Note: For example, this requirement is not met if State law includes mental state as an element of proof for civil violations. (c) A civil penalty assessed, sought, or agreed upon by the State Director under paragraph (a)(3) of this section shall be appropriate to the violation. Note: To the extent that State judgments or settlements provide penalties in amounts which EPA believes to be substantially inadequate in comparison to the amounts which EPA would require under similar facts, EPA, when authorized by the applicable statute, may commence separate actions for penalties. Procedures for assessment by the State of the cost of investigations, inspections, or monitoring surveys which lead to the establishment of violations; In addition to the requirements of this paragraph, the State may have other enforcement remedies. The following enforcement options, while not mandatory, are highly recommended: Procedures which enable the State to assess or to sue any persons responsible for unauthorized activities for any expenses incurred by the State in removing, correcting, or terminating any adverse effects upon human health and the environment resulting from the unauthorized activity, whether or not accidental; Procedures which enable the State to sue for compensation for any loss or destruction of wildlife, fish or aquatic life, or their habitat, and for any other damages caused by unauthorized activity, either to the State or to any residents of the State who are directly [[Page 249]] aggrieved by the unauthorized activity, or both; and Procedures for the administrative assessment of penalties by the Director. (d) Any State administering a program shall provide for public participation in the State enforcement process by providing either: (1) Authority which allows intervention as of right in any civil or administrative action to obtain remedies specified in paragraphs (a)(1), (2) or (3) of this section by any citizen having an interest which is or may be adversely affected; or (2) Assurance that the State agency or enforcement authority will: (i) Investigate and provide written responses to all citizen complaints submitted pursuant to the procedures specified in Sec. 123.26(b)(4); (ii) Not oppose intervention by any citizen when permissive intervention may be authorized by statute, rule, or regulation; and (iii) Publish notice of and provide at least 30 days for public comment on any proposed settlement of a State enforcement action. (e) Indian Tribes that cannot satisfy the criminal enforcement authority requirements of this section may still receive program approval if they meet the requirement for enforcement authority established under Sec. 123.34. (Clean Water Act (33 U.S.C. 1251 et seq.), Safe Drinking Water Act (42 U.S.C. 300f et seq.), Clean Air Act (42 U.S.C. 7401 et seq.), Resource Conservation and Recovery Act (42 U.S.C. 6901 et seq.)) [48 FR 14178, Apr. 1, 1983, as amended at 48 FR 39620, Sept. 1, 1983; 50 FR 6941, Feb. 19, 1985; 54 FR 258, Jan. 4, 1989; 58 FR 67981, Dec. 22, 1993]


Office of Solid Waste
U.S. Environmental Protection Agency
February 1997

Section 106 of the Comprehensive Environmental Response, Compensation, and Liability Act
of 1980 (CERCLA) provides for abatement action by a State, local government, or the President, when
there exists an “imminent and substantial endangerment to the public health or welfare or the
environment because of an actual or threatened release of a hazardous substance.” In addition, Section
106 contains severe penalties for noncompliance, forcing potentially responsible parties to clean up a
site, or pay as much as $25,000 a day. These orders are EPA’s means of enforcement, which achieve
cleanup at sites posing significant threat to human health and the environment where negotiations over
Superfund cleanups have failed. CERCLA § 106 authority has been invoked in response to hazards
posed by a substantial number of abandoned mining and mineral processing sites. This document
summarizes available information for forty CERCLA § 106 actions taken at these sites.
The information used to develop this document was taken from a number of sources: the
Superfund Emergency Response Actions Library; the EPA RODS Database; the CERCLIS Database;
National Priority List Fact Sheets (http://www.superfund/oerr/impm/products/nplsites/usmap.htm.); the
Right-to-Know Network (http://www.RTK.NET); U.S. Environmental Protection Agency, Office of
Solid Waste, Mining Sites on the NPL - Draft, 1995; U.S. Environmental Protection Agency, Office of
Solid Waste, Mining Waste National Priorities Site Summary Report- Final Draft, 1991; U.S.
Environmental Protection Agency, Action Memorandum, for a number of sites; and other Regional
documents collected from Superfund Record Centers in Regions V, VIII, and X.
The table below, Exhibit 1, summarizes the information available in this document for each
site, including site name and location, source of contamination, cost of cleanup, and the nature of the
damage resulting from the contamination. Detailed information for each site listed is provided in
Chapter 2. Sites are grouped by State and listed alphabetically for each State.

Exhibit 1


Source of Contamination

Cost of Cleanup

Nature of Damage





Ground water

Surface water

Human Exposure


Iron Mountain Mine


Mining and processing of copper, silver, gold, zinc, and pyrite.

$68.1 million


Contaminated by sulfuric acid, copper, zinc, and cadmium.

Potential for human health risk.

Potential for accumulation of contaminants in fish. Steady decline in nearby fish populations.

Site Overview: This site is located nine miles northwest of Redding , California . From 1865 to 1963, this site was mined for iron, silver, gold, copper, zinc, and pyrite. Underground mine workings, waste rock dumps, piles of ore mine tailings, and an open mine pit still remain at the site today. Surface water has been contaminated by sulfuric acid, zinc, copper, and cadmium.


Site Mining Activity: From 1865 to 1963, this 4,400-acre site was used for the mining and processing of copper, silver, gold, zinc, and pyrite. Although mining operations were discontinued in 1963, underground mine workings, waste rock dumps, piles of ore, mill tailings, and an open mine pit remain at the site. In recent years, metal recovery activity has been limited to extracting copper from acid mine drainage using copper cementation.

Nature and Type of Contamination: The mining activity at this site fractured the mountain, exposing minerals in the mountain to surface water, rain water, and oxygen. Exposure of pyrite to moisture and oxygen resulted in the formation of sulfuric acid. This sulfuric acid runs through the mountain and leaches out copper, cadmium, zinc, and other heavy metals, flowing out of the seeps and portals of the mine. Much of the drainage is

channeled into the Spring Creek Reservoir by creeks surrounding the site. Nature of Environmental Damages: Surface water has been contaminated by the release of sulfuric acid, copper, zinc, and cadmium from the mine. Accidental ingestion or direct contact with contaminated water or mine drainage poses a human health risk. There is a potential for accumulation of contaminants in fish. The unplanned release of contaminants acutely toxic to fisheries into Spring Creek Reservoir has led to the steady decline in fish populations and contributed to the listing of the Winter Run Chinook Salmon as an endangered species.

Type of Cleanup Utilized: This site is being addressed in five stages: emergency actions and four long-term remedial phases focusing on water management, and cleanup of Boulder Creek, the Old Mine/No. 8 Mine, and the entire site. The Spring Creek Debris Dam was constructed in 1963 to act as a sediment basin and to control acid mine drainage. Cementation plants were constructed in 1940 and 1977 to recover copper from the drainage. In February 1989, EPA constructed an emergency lime neutralization plant to reduce metal discharges from the site by 50 percent.

Estimated or Actual Costs of Cleanup: The cost of cleanup has been estimated at $68.1 million.

Party(ies) Responsible for the Action: This site is being addressed through Federal and potentially responsible parties' actions.

SEWER, semera; query, from sevoir, to sit, and eau, water. Termes de la Ley.] A fresh water trench, or little river encompassed with banks on both sides, to carry the water into the sea, and thereby preserve the lands against inundations, &c.

The court of sewers is a temporary tribunal, erected by virtue of a commission under the great seal.

The kings of England used to grant commissions of sewers long before any statute was enacted in parliament for the purpose; and during the reigns of King Henry VI., Edward IV., and Henry VII., several statutes were made for appointing commissions of sewers in all parts of the realm where needful; some to endure ten years, some fifteen years, and others five years, &c. with certain powers to the commissioners ; which commissions, by 23 Hen. 8. c. 5. were to be settled by the lord chancellor, lord treasurer, and the two chief justices,, or any three of them, whereof the lord chancellor to be one; and by this law, the commissioners' oath was appointed; they were to be qualified as to estates, by having lands, tenements, or hereditaments, in fee for life, worth forty marks per annum, besides reprises; (except they were resident in and free of a corporation; and had moveables worth 100/.:) and if they executed the commission, not being thus qualified, or before sworn, they incurred a forfeiture of 40/. Now see the recent statute, post.

The said 23 Hen. 8. c. 5. § 17. directed that laws, acts, decrees, and ordinances made by commissioners of sewers should stand good and be put in execution so long as the commission endured and no longer; except the said laws and

ordinances were engrossed in parchment, and certified under the seals of the commissioners into Chancery, and had the royal assent: and the 13 Eliz. c. 9. directed that all commissions of sewers should continue in force for ten years, unless sooner determined by supersedeas or new commission : and that all laws, ordinances, and constitutions made by force of such commission, being written in parchment, indented and under seal, should without such certificate or royal assent continue in force notwithstanding the determination of the commission by supersedeas until repealed or altered by new commissioners; and that all laws so sealed should without certificate or royal assent, be in force for one year after the determination of such commission by the expiration of ten years from its teste. But see now the recent statute, post.

The court of commissioners of sewers is classed by Blackstone among those whose jurisdiction is private and special; their jurisdiction being confined to such county or particular district as the commission expressly names. The commissioners are a court of record, and may fine and imprison for contempts. 1 Sid. 145. And in the execution of their duty may proceed by a jury (who may amerce for neglects) or upon their own view ; and may take order for the removal of any annoyances, or the safeguard and conservation of the sewers within their commission, either according to the laws and customs of Romney Marsh (see that title), or otherwise at their own discretion ; but they may not imprison persons for disobedience to their orders; nor can they intermeddle where there is not a public prejudice. Laws Sew.; 3 Comm. c. 6.

The sea, creeks, and bays on the coasts, are all within the statutes of sewers, in point of extent; but they and the shores and the relinquished grounds are out of the commission of sewers to be determined thereby; but ports and havens, as well as the walls and banks of waters, are within the commission of sewers; and the shore and grounds left by the sea, when they are put in gainage and made profitable, are then within the power of commission of sewers: and though before the ground left by the sea is not, as to defence, within the commission of sewers; yet a wall or bank may be thereon raised for the succour of the country, although not for any private commodity, the commission of sewers aiming at the general good. Callis, 31, 32.

The commissioners of sewers have jurisdiction over a sewer communicating with a navigable stream, or with the sea above the point where the tide ebbs and flows, if it be useful for navigation, and if the place over which the jurisdiction is exercised, is, or is likely to be, benefited by it. 2 T. R. 358.

The business of the commissioners of sewers is to repair sea-banks and walls, survey rivers, public streams, ditches, &c. and make orders for that purpose. They have authority grounded on the statute to inquire of all nuisances and offences committed by the stopping of rivers, erecting mills, not repairing of banks and bridges, &x. and to tax and assess all whom it may concern, for the amending of defaults, which tend to the obstruction or hindrance of the free passage of the water through its ancient courses: and they may arrest carts and horses, and take trees, paying a reasonable price for them, for reparations; appoint workmen, bailiffs, surveyors, and other officers, &c. Termes de la Ley, 541; 4 Inst. 275 ; Laws Sew. 86, 96.

Upon the 23 Hen. 8. c. 5. the commissioners decreed that a new river should be made out of another large river through the main land for seven miles unto another part of the old river; and for that purpose they laid a tax of a sum in gross upon several towns: adjudged that the commissioners have no power to make a new river, or any new invention to cast out water, &c, for such things are to be done in parliament; but they may order an old bank to be new made, or alter a sewer upon any inevitable necessity. The tax of a sum in gross was not warranted by their commission, they being to tax every owner or possessor of the lands according to the quality of their lands, rents, and number of acres, and their respective portions and profits, whether of pasture, fishing, &c. 10 Rep. 141. See the powers given to the commissioners by the late statute, post.

The commissioners of sewers cannot assess a person, in respect of drains which communicate with other drains that fall into the great sewer, if the level of his drain is so much above the sewer that the stopping of the sewer could not possibly throw back the water so as to injure his premises, and if he be not, and it does not appear that he is, likely to be benefited by the works done upon the sewer. 3 M. fy S. 447.

There are several causes and considerations for which persons may be obliged to repair and maintain sewers, as frontagers were bound to the repairs of the walls and banks, &c. by reason of frontage. 37 Lib. /Issis. pi. 10. The being owner of a bank, wall, or other defence, is a sufficient inducement to impose the charge of the repairs thereof upon such owner. 1 Hen. 7. Prescription and custom are much of the same nature, and the law takes notice of them in this case ; but prescription doth not bind a man to the repairs, except it be ratione tenures. 21 Edtv. 4. 38 ; 19 Hen. 7. By tenure of land, a person may be bound to repair a wall, bank, or defence, mentioned in the statute of sewers. 12 Hen. 4. A man may bind himself and his heirs by covenant expressly to repair a bank, wall, or sewer, and be good ; yet this shall not bind the heir after his death, where assets are not left from the ancestor, who entered into the covenant. Callis's Reading on Sewers. That this is a good authority on the subject of sewers, see 2 T. R. 365.

The use of defences may tie a man to the reparation thereof, if one and his ancestors have had the use of a river by sailing up and down the same, or have used a ferry on or over it, &c. If no person or grounds can be known, who ought to make repairs by tenure, prescription, custom, or otherwise, then the commissioners are to tax the level. Laws Sewers, 57, 67, 68.

If a sea-bank or wall, which the owners of particular lands are bound to repair, be destroyed by tempest, without any default in such owners, the commissioners of sewers may order a new one, even in a different form, if necessary, to be erected at the expense of the whole level. 8 T. R. 312.

By the 3 & 4 Wm. 4. c. 22. the laws relating to sewers have been amended. The following is an outline of the principal provisions of the act.

By § 1. the qualification of the commissioners is increased.

And § 2. Quakers may act as commissioners, upon making an affirmation.

§ 3. imposes an oath of qualification to be taken by other commissioners before acting, in addition to the oath prescribed by the 23 Hen. 8.

§ 4. imposes a penalty of 100Z. on persons acting not qualified. But proceedings are not to be impeached on account of disqualification.

By § 5. ex-officio commissioners are not required to qualify.

By § 6. every commission of sewers is' to continue for ten years, unless renewed or repealed by writ of supersedeas.

By § 7. all laws, decrees, and ordinances, made by any court of sewers, and duly registered in the rolls of such court, are to continue in force notwithstanding the expiration of the commission, and although not ingrossed in parchment, or not certified into the Court of Chancery.

§ 8, 9. regulate the meetings of the commissioners.

§ 10. after reciting that doubts have arisen as to the extent of the jurisdiction of commissioners of sewers, enacts, that all walls, banks, culverts, and other defences whatsoever,

whether natural or artificial, situate or being by the coasts of the sea, and all rivers, streams, sewers, and watercourses, which now are or hereafter shall be navigable, or in which the tide now does or hereafter shall or may ebb and flow, or which now do or hereafter shall or may directly or indirectly communicate with any such navigable or tide river, stream, or sewer, and all walls, banks, culverts, bridges, dams, floodgates, and other works erected or to be erected upon or adjoining to any such river, streams, sewers, or watercourses, shall be within and subject to the jurisdiction of commissioners of sewers : provided, that nothing therein contained shall empower any commissioners of sewers to exercise authority over any dams, floodgates, or other works erected for ornament, previous to the act, in, upon, or over any rivers, streams, ditches, gutters, sewers, or watercourses near or contiguous to any house or building, or in any garden, yard, paddock, park, planted walk, or avenue to a house, without the consent in writing of the owner or proprietor thereof respectively first obtained.

§ 11 & 12. specify the manner in which juries are to be summoned to make inquiries or presentments either under the old law or that act.

§ 13. declares that a presentment of a jury shall not be necessary upon each occasion to repair.

By § 14. rates are to be made for every distinct level or district.

But (§ 15.) nothing therein contained is to discharge persons from liability by tenure, &c.

And by § 17. nothing contained in the act is to preclude courts of sewers from causing inquiry and presentment by jury as before.

By § 18. rates are to be apportioned between outgoing and incoming tenants.

By § 19. any court of sewers may decree and ordain any new walls, banks, sewers, guts, gotes, calcies, bridges, tunnels, culverts, sluices, floodgates, tumbling bays, cuts, or other works, aids, and defences, or any alteration in the gauge, dimension, course, direction, or situation of any old or existing wall, &c. to be constructed, for the more effectually defending any lands and premises within the jurisdiction of such court against the irruption of the sea, or for carrying off* the superfluous fresh waters, and also, in like manner and at their discretion, may decree any former walls or defences against the sea, or against any rivers, streams, sewers, or watercourses, within their commission, to be abandoned and given up, and new defences and walls, banks, sluices, floodgates, tumbling bays, cuts, and other works to be made and continued in lieu thereof; and in every such case may direct, by inquiry and presentment of a jury, in what manner and proportions the same shall thereafter be repaired and maintained by the person, body politic or corporate, deriving advantage or avoiding damage thereby or therefrom, having regard to previous liabilities in respect of the walls and defences so to be abandoned.

Provided (§ 21.) that no new works are to be made without the consent of the owners and occupiers of three-fourth parts in value of the lands to be charged.

§ 22. Occupiers of land adjoining sewers may take away soil and weeds from the banks for their own use.

And (§ 23.) upon neglect of occupiers to remove soil, surveyors may remove it.

By § 24. the commissioners are authorized to contract for the purchase of lands, &c.

And (§ 26.) where persons shall neglect or refuse to treat, &c. commissioners are to issue their warrants to the sheriff" to impanel a jury. The jury may be challenged. Witnesses are to be summoned and examined upon oath ; and the jury are to assess damages ; and their verdict to be binding.

By § 27. commissioners may impose a fine on the sheriff*, witnesses, &c. making default.

§ 39. enables commissioners to sell lands, &c. which are not wanted ; and the first offer is to be given to the owners of adjoining grounds.

§ 41. empowers the courts of sewers to borrow and take up money at interest for making and maintaining works.

And (§ 42.) the courts of sewers may grant securities to persons advancing money in the form therein set forth.

And (§ 43.) such securities may be transferred.


By § 44. courts of sewers may be held out of the limits of the commission, at any place not exceeding five miles from such limits.

And by § 45. all acts of commissioners done without the district of the commission, but within five miles thereof, are declared valid.

By § 46. several defaults may be included in one presentment, and separately traversed.

By § 52. constables, &c. are to obey orders of commissioners.

And (§ 53.) fines, &c. may be levied by warrant of commissioners of sewers.

§ 55. Commissioners may decree and assess costs ; and in default of distress may raise the same upon the lands of the defaulters.

§ 57. Commissioners of sewers may sue and be sued in the name of their clerk.

By § 61. the act is not to prejudice any local act.

And by § 62. the rights of the city of London are saved.

The 3 Jac. 1. c. 14. ordains that all ditches, banks, bridges, streams, and watercourses, within two miles of London, falling into the Thames, shall be subject to a commission of sewers ; and the lord mayor, &c. is to appoint persons who have power of commissioners of sewers.

The conduct of commissioners of sewers is under the control of the Court of King's Bench, which will prevent or punish any illegal or arbitrary proceedings. Cro. Jac. 336. And yet in the reign of King James I. (8th Nov. 1616) the privy council took upon them to order that no action or complaint should be prosecuted against the commissioners unless before that board, and committed several to prison who had brought such actions at common law, till they had released the same; and one of the reasons for discharging Sir Edward Coke from his office of lord chief justice was for countenancing those proceedings at law. Moor, 825, 826 ; see 3 Comm. 55, 74. But now it is clearly established that this (like other inferior jurisdictions) is subject to the discretionary coercion of the Court of King's Bench. 1 Vent. 66, 67 ; Salk. 146.

If it is found before commissioners of sewers that a certain person ought to repair a bank, and this is removed into B. It., the court will not quash the inquisition, or grant a new trial, except he repair it; and if afterwards he is acquitted, he shall be reimbursed. Sid. 78. In case of sewers the Court of King's Bench inquire into the nature of the fact before they grant a certiorari to remove orders, that no mischief may happen by inundations in the mean time, which is a discretionary execution of their power. 1 Salk. 146.

The court commonly hears counsel on both sides, where orders of commissioners of sewers are removed by certiorari, before such orders are filed ; for if good, the court will grant a procedendo, which cannot be done after they are filed ; but they will file them in any case where there is no danger likely to ensue. 1 Salk. 145. If commissioners of sewers proceed after a certiorari delivered out of B. R. attachment will issue against them, and they may be fined. 3 Nek. Abr. 218.

Orders of sewers being removed by certiorari, the court would not file the orders till they had heard the objections debated, so as to have it in their.power to send the orders back again. 2 Str. 1263. The court held, that a certiorari to bring up an order made by the commissioners for the removal of their own clerk, was of common right, and not discretionary, as in the case of other orders, where great inconveniences may follow by inundations. 1 Str. 609.

With respect to offences committed against the property of the commissioners of sewers, see Indictment, V.

As to breaking down sea-banks and sea-walls, and persons removing piles, &c. see Malicious Injuries.

By the 31 EUz. c. 6. corrupt elections and resignations, in colleges, hospitals, and other eleemosynary corporations, are also punished with forfeiture of double the value, vacating the place or office, and a devolution of the right of election for that turn to the crown. §§ 2, 3

Liberty, by the English law, depends not on the complexion; and what was said even in the time of Queen Elizabeth is now substantially true, that the air of England is too pure for a slave to breathe in. 2 Rushw. 46

Home » Agencies » ENRD » About the Division » Organization » EDS » History

Evolution of the Section

The Environmental Defense Section (EDS) traces its roots to 1971.  In that year, in response to an increasing awareness of the adverse effects of environmental degradation on the public health and welfare, the Pollution Control Section was added to the Land and Natural Resources Division with the special mission of handling all civil and criminal litigation under environmental regulatory statutes such as the Clean Air Act.  In October 1979, the Division created the Hazardous Waste Section to begin enforcement with respect to hazardous wastes under the 1976 Resource Conservation and Recovery Act (RCRA) and other authorities.

In March 1980, the Hazardous Waste Section's mandate was expanded to include cost-recovery litigation pursuant to the Uranium Mill Tailings Radiation Control Act.  In that same year, the Division decided to separate enforcement and defense litigation responsibility, which led to the division of the Pollution Control Section into the Environmental Enforcement Section and the Pollution Control Section, respectively.

In 1981, the original Pollution Control Section was renamed the Environmental Defense Section. The Hazardous Waste Section's affirmative and defensive components were merged into the Environmental Enforcement Section and the Environmental Defense Section, respectively.

Federal Regulatory Jurisdiction over Wetlands under the Clean Water Act (CWA)

The Environmental Defense Section has played an important role in the development of many key aspects of modern environmental law.  One good example involves federal regulatory jurisdiction over wetlands under the CWA. EDS prosecutes civil violations of these provisions and defends Army Corps of Engineers permit decisions and other wetlands-related actions of EPA and the Corps.

In 1985, the Supreme Court endorsed a relatively expansive understanding of federal jurisdiction over wetlands in United States v. Riverside Bayview Homes , in a case arising out of a civil wetlands enforcement action in Michigan.  In ruling in the government's favor, the Supreme Court held that "waters of the United States" regulated under the Clean Water Act was properly interpreted by the Corps to include adjacent wetlands.

Over the next quarter century, EDS has been at the forefront of litigation involving the crucial question of just how far these "waters of the United States" extend.  So far, these questions have resulted in two additional Supreme Court decisions, Solid Waste Agency of Northern Cook County v. Corps (2001) (CWA jurisdiction does not extend to so-called "isolated" waters and wetlands), and Rapanos v. United States (2006) (considering extent of CWA jurisdiction over relatively smaller and more intermittent waters), as well as scores of lower court decisions. In all these cases, the factual and legal arguments developed by EDS attorneys have helped shape the development of the law in this important and controversial area.

Nature and Scope of EPA's Regulatory Authority under the Clean Air Act (CAA)

EDS has also played a key role in the development of the law involving the nature and scope of the Environmental Protection Agency's (EPA) regulatory authority under the CAA. By statute, petitions for review of EPA final actions under the CAA begin in the courts of appeals, and EDS handles this appellate practice.

One of the most prominent recent cases of this sort was Massachusetts v. EPA (2007), which considered the extent of EPA's authority to regulated emissions of greenhouse gases to address global climate change. The D.C. Circuit initially upheld an EPA determination that the Agency did not possess such authority, but in 2007, the Supreme Court reversed this decision, and in so doing, ushered in a new era of brisk regulatory and legislative action to address greenhouse gases and climate change.

While climate issues today are one of the most prominent of the regulatory issues under the Clean Air Act, ever since the enactment of the modern CAA in the 1970s, EDS has defended scores of important cases addressing the regulation of a variety of emissions from all types of stationary and mobile sources. These cases also frequently raise significant administrative law issues, so EDS attorneys have been active participants in the development of modern jurisprudential principles in areas such as standing, Chevron deference, and the scope of judicial review of agency actions.

Evolution of the Federal Superfund Cleanup Law

EDS attorneys have also played an important role in the evolution of the federal Superfund cleanup law, CERCLA (the Comprehensive Environmental Response, Compensation, and Liability Act). In the early 1980s, shortly after CERCLA was enacted, EDS played a large role in defending the statute against a torrent of broad-based challenges to its constitutionality and fairness. In fact, Congress ratified many of the results obtained in these cases when it adopted the Superfund Amendments and Reauthorization Act (or "SARA") in 1986. These judicial decisions and legislative action -- very controversial at the time -- created the fundamental cleanup and cost recovery mechanisms that are so familiar to, and effectively used by, EPA and the regulated community today.

As the program has matured, it has also spawned new legal questions -- such as the contribution issues addressed by the Supreme Court in Cooper Industries v. Aviall Services (2004) and Atlantic Research Corp. v. United States (2007), and in liability issues such as those addressed by the Court in its very recent decision in Burlington Northern v. United States (2009). The Environmental Defense Section frequently handles cases raising these sorts of issues in the lower courts when it defends federal agencies alleged to have contributed to hazardous waste sites. EDS also has played, and continues to play, a very important role in the development of natural resource damages (NRD) law under CERCLA, as it pertains to state NRD claims against federal agencies.

Other Defensive Environmental Litigation

Today, the Environmental Defense Section participates in a broad spectrum of environmental litigation, including:

  1. defending client agency programs and initiatives;
  2. enforcing the wetlands protection provisions of the Clean Water Act and the Rivers and Harbors Act;
  3. resolving federal agency liability equitably in cases under CERCLA; and
  4. representing the United States as a defendant or respondent in cases brought under various pollution control statutes, including the CAA, CWA, Safe Drinking Water Act, Toxic Substances Control Act, and RCRA.

Defending agency programs and initiatives represents the largest segment of the Section's practice. These include regulatory actions by the EPA and U.S. Army Corps of Engineers (Corps). In these cases, EDS defends rulemakings that represent the culmination of years of agency effort and significant investment of agency resources. Other components of this practice include defending federal agencies' implementation of their statutory and regulatory mandates through defense of challenges to permit decisions, administrative orders and civil penalty claims. This litigation occurs in the district courts and in original actions in the courts of appeals throughout the country.

Enforcing the wetlands laws under section 404 of the Clean Water Act and Sections 10 and 13 of the Rivers and Harbors Act constitutes approximately 10 percent of EDS's docket. These cases play a critical role in protecting the Nation's wetlands and navigable waterways from illegal and harmful development and in preserving important ecosystems. EDS also brings civil enforcement actions for the unauthorized placement of obstructions in navigable waters and the impairment of the reach, flow, or capacity of those waters under section 10 of the Rivers and Harbors Act of 1899.

Federal agency CERCLA liability cases constitute over a quarter of the Section's practice. In this ever-expanding area of the docket, the Section works to fairly resolve federal agency liability, thereby protecting the federal fisc against excessive claims while ensuring that the government pays its “fair share” of environmental cleanup costs.

Lastly, EDS handles novel, high-profile cases brought by states or environmental groups, alleging that federal agencies have violated requirements of the environmental laws , which typically apply to the federal government in the same manner, and to the same extent, as they apply to private parties. In addition, EDS handles a number of bankruptcy proceedings and state law actions. These areas of the docket comprise about 10 percent of the Section's workload.


AGENDA Public Meeting Central Valley Regional Water Quality Control Board September 23, 2010– 9:00 a.m. Central Valley Regional Water Quality Control Board

Litigation filed by the Board against other parties: Iron Mountain Mine Cleanup - State of Calif., CVRWQCB, et al. v. Iron Mountain Mines, Inc., et al., (EDCal No. CIV-S-91-1167-DFL-PAN) and U.S. v. Iron Mountain Mines, Inc., et al., (EDCal No. S-91-0768 DFL/JFM)

Groundwater Quality Protection Strategy
Central Valley Region
August 2010





“Toxic” doesn't do justice to Iron Mountain runoff

Iron Mountain Mine strategy outlines specific action to ensure a protective remedy within the Superfund statutory and regulatory framework, as established by the Comprehensive Environmental Response, Compensation, and Liability Act and the National Oil and Hazardous Substances Pollution Contingency Plan. Opportunities to decrease the environmental footprint and maximize the environmental outcome of a cleanup exist throughout a project life. Iron Mountain Mine Superfund Remediation Strategy sets out current regulation of the Superfund Remedial Program to eliminate the demand placed on the EPA during delisting.

Many of the strategic actions can be addressed through policy and guidance compliance, resource development, and attention to the rule of law:

  • Maximize use of renewable energy to power site operations, and identify methods for increasing energy efficiency;
  • Remedy optimization starting in fiscal year 2010;
  • Maximize efficient use of natural resources and energy during remedial actions;
  • Integrate energy sources and encourage best operational practices
  • Perfect and deploy technology for the reuse of treated water and increase potable water supply and irrigation with conservation, recharge of aquifers;
  • Identify additional onsite or offsite uses of materials or energy otherwise considered waste;
  • Include language in statements of work for removal action, remedial design, and remedial action procurement contracts; and
  • Help communities establish networks and training programs that enable citizens to gain proficiency and expertise.



Attorney General Cuccinelli rails against EPA

Update: Governor Manchin Sues EPA

October 6, 2010 tags: EPA , mountaintop removal mining , administrative law , coal mining by Rhead Enion

West Virginia Governor Joe Manchin announced Tuesday that West Virginia is filing suit to, as the Governor put it, stop EPA's “attempts to destroy the coal-mining industry and our way of life.”  The Charleston Gazette has a good summary of the suit .  The suit seeks to invalidate EPA's recent review of Clean Water Act permits for mining and block EPA from implementing a stricter water quality standard.  Front and center will be the Spruce Mine mountaintop removal (MTR) permit, currently under EPA review (see my earlier blog post here ).

Taking a page from the environmentalists' playbook, West Virginia will focus on whether EPA met its procedural requirements—such as public comment—when considering stricter standard and reviewing the MTR permit.

Governor Manchin is running for the Senate seat formerly occupied by the late Senator Robert Byrd.  Polling to date shows a very close race , and Governor Manchin will certainly take advantage of what, at least in West Virginia, would be considered positive press.  (The Governor did claim that the suit has been in the works since before Senator Byrd's death.)

The law firm representing West Virginia in the suit, curiously enough, is Bailey and Glasser: the same firm that won an appeal about ten years ago after the late U.S. District Judge Charles H. Haden basically shut down mountaintop removal by prohibiting mining waste in permanent and seasonal streams.  Judge Haden's ruling was a monumental, if short-lived, achievement for the environmental movement and is described in Coal River .


Thursday's top of the scroll: Army Corps new report, “Building Strong Collaborative Relationships for a Sustainable Water Resources Future”


the Dodd-Frank financial reform bill , signed into law this July, requires extractive companies listed on the New York Stock Exchange to disclose payments to governments . The provision was supported by Publish What You Pay , an international civil society coalition promoting transparency for extractive industries. President Obama highlighted the law in his address to the United Nations on Sept. 23.

13. United States - State Relationship. The relationship between the United States
and the State regarding this Consent Decree and oversight and support of the Work by the Site
Operator shall be governed by the Memorandum of Understanding Regarding The Iron
22 1 Mountain Mine Superfund Site Between The United States Environmental Protection Agency
and The California Department Of Toxic Substances Control and The California Central Valley
Regional Water Quality Control Board ("MOU"), attached hereto as Appendix H.
A. Oversight and Support Agencies. EPA shall serve as the Oversight
Agency, and the State plaintiffs shall designate the State agency(ies) that will serve as the

Support Agency unless and until EPA and the State plaintiffs modify this relationship as set
2 forth in the MOU.

AIG to Repay TARP; ‘Glimpsing Sunshine'

October 11th, 2010

Article by Meg Green

Copyright: A.M. Best Company, Inc.
Source: BestWire Services

American International Group Inc.'s top officer said the company is “glimpsing sunshine” as it announced plans to repay its debt to the federal government, plus said it would sell two Japanese life insurance companies to U.S.-based life insurer Prudential Financial Inc. for $4.8 billion. (APPARENTLY HASN'T BEEN WHERE THE SUN SHINES IN SOME TIME).

“You'll recall that in early August, we said we could see the light at the end of the tunnel,” said Robert Benmosche, chief executive of AIG, in an audio statement on the company's website. “Today, we are glimpsing at a lot of sunlight — an awful lot of sunlight.”

He said the announcement marks a momentous step forward for AIG, “and a new beginning for all of us.”

AIG Star Life Insurance Co. Ltd. and AIG Edison Life Insurance Co. Ltd. will be sold to Prudential Financial (NYSE: PRU) for $4.2 billion in cash, and Prudential will assume $600 million in third-party debt under the agreement.

Under the plan to repay its government bailout, AIG would pay back $20 billion in senior secured debt under the Federal Reserve Bank of New York Credit Facility through parent company resources and proceeds from the disposal of AIG assets, including the planned initial public offering in Hong Kong in late October of its Asian life insurance unit, AIA Group.

AIG said it expects AIA to generate at least $2 billion in operating profit for the fiscal year ended Nov. 30, 2010, ahead of AIA's IPO. AIG has moved forward with its IPO plans for AIA after a proposed $35.5 billion sale to U.K.-based Prudential plc fell through in June (BestWire, Sept. 28, 2010).

AIG also said its pending $15.5 billion sale of American Life Insurance Co. to MetLife Inc. would help fund the repayment.

The insurance group will also seek to return the FRBNY's $26 billion holding of preferred interest in two AIG-related special-purpose vehicles through proceeds from future asset monetizations.

AIG said it would also convert the remaining $49.1 billion in Troubled Asset Relief Program preferred shares outstanding into stock to be held by the U.S. Treasury. With that exchange, Treasury will own 92.1% of AIG's common stock. AIG said the conversion will not take place until after the FRBNY credit facility is repaid in full, and the U.S. Treasury is expected to sell its stake in AIG on the open market.

Industry watchers had warned that if the shares are sold too quickly, it could dilute the value of the company and its stock.

Although these actions will result in a streamlined and — through the reduction of debt — strengthened AIG balance sheet, the company's ratings have been heavily based on the U.S. government provision of support, including availability of significant liquidity, A.M. Best Co. commented. With the removal of this support, AIG will need to stand on its own, re-establish itself in the capital markets, restore shareholder confidence (particularly with institutional investors) and demonstrate its ability to maintain sufficient liquidity, which is no longer accessible through government sources, A.M. Best said.

Most AIG insurers have current Best's Financial Strength Ratings of A (Excellent). A.M. Best said AIG's issuer credit rating of bbb is unchanged following the announcement and that the rating outlook remains negative.

As of Sept. 20, AIG (NYSE: AIG) still owed the U.S. government about $128.2 billion in debt (BestWire, Sept. 20, 2010).

Japan is “a market we know well. A market where we've had great success and momentum over the last 30 years,” said John Strangfeld, chairman and CEO of Prudential Financial, in a conference call Sept. 30.

Strangfeld noted Japan is the third-largest economy in the world, and the second-largest life insurance market. The acquisition of the AIG companies will allow Pru to broaden its distribution and “significantly increase the scale of our operations in Japan.”

The AIG Star and AIG Edison transactions are expected to close in the first quarter of 2011, subject to regulatory approval and other closing conditions.

The transaction is expected to result in a $1.2 billion pretax goodwill impairment charge on AIG's third-quarter results.

Shares of AIG were trading at $37.93 the morning of Sept. 30, up 1.28% from the previous close.

Shares of Prudential were trading at $54.10, down 4.30%. Prudential Insurance Company of America currently has a Best's Financial Strength Rating of A+ (Superior).

(By Meg Green, senior associate editor, BestWeek: Meg.Green@ambest.com )

Originally Posted at InsuranceNewsNet on September 30, 2010 by Meg Green.

A.M. Best Co . has commented that the issuer credit rating of "bbb" of American International Group, Inc . (AIG) (New York, NY) [NYSE: AIG] is unchanged following the announcement of actions to restructure the financial assistance provided to AIG by the U.S. Treasury Department and the Federal Reserve Bank of New York (FRBNY). The rating outlook remains negative. The ratings of all AIG subsidiaries are unchanged.

The announcement of a plan to repay the FRBNY Credit Facility and to convert the various ownership interests of the U.S. Government to common equity, which will ultimately be sold to public investors, marks the beginning of the final phase of the process begun in September 2008 to stabilize AIG. While the specific details of the plan are now being made public, it has been the expectation since the initiation of the government's involvement that such involvement would not be permanent. As such, the announcement of this final plan is not itself a trigger for rating action by A.M. Best.

Under the proposal, the line of credit extended to AIG by the FRBNY will be repaid before the end of the first quarter of 2011, primarily using proceeds from the initial public offering of AIA Group Limited (AIA) and the previously-announced sale of American Life Insurance Company (ALICO) to MetLife, Inc . In addition, most of the preferred interests in special purpose vehicles (SPVs) established to facilitate the sale of AIA and ALICO currently held by the FRBNY will be transferred to the U.S. Treasury Department in a series of transactions. These two actions will result in the repayment of the outstanding balance on the FRBNY Credit Facility of approximately $20 billion and termination of the Facility.

Following the transactions above, the $49 billion of Series E and F preferred shares held by the U.S. Treasury as well as the Series C preferred shares held by the AIG Credit Facility Trust will be converted into approximately 1.7 billion common shares, which the Treasury will sell over time as market conditions permit. The Treasury's preferred interest in the SPVs will be redeemed through future asset monetizations of designated assets, and these obligations are without recourse to AIG.

Concurrently, the FRBNY and U.S. Treasury have agreed to create a bridge finance facility of approximately $2 billion derived from the Series F preferred shares. These Series F shares will be converted to Series G mandatory convertible preferred stock, which will be available for AIG to draw upon until March 31, 2012, or until AIG completes its primary equity offering of no less than $2 billion, whichever occurs first. The Series G will automatically convert into AIG Common Stock on March 31, 2012, unless it is not drawn or is drawn and redeemed prior to that date.

Although these actions will result in a streamlined and—through the reduction of debt—strengthened AIG balance sheet, the company's ratings have been heavily based on the U.S. Government provision of support, including availability of significant liquidity. With the removal of this support, AIG will need to stand on its own, re-establish itself in the capital markets, restore shareholder confidence (particularly with institutional investors) and demonstrate its ability to maintain sufficient liquidity, which is no longer accessible through government sources. A.M. Best will continue to monitor the execution of the multi-faceted plan and will review the ratings as events emerge.

Ten-Year Swap means an agreement reached between the Company and the Scheduled
Contractor whereby the Scheduled Contractor is prepaid for the first ten years of Expected
Clean-Up Costs and the Company receives certain financial assurances as more fully described
in the Agreement for Insurance for and Work at the Iron Mountain Superfund Site.
oo. Termination Date means the earliest of the following:
1. The ending date of the period set forth in Item 3 of the Declarations; or
2. Cancellation of the Policy pursuant to Section VI, Paragraph F.
pp. Trust One means the Iron Mountain Mine Remediation Trust I, established pursuant to, and
governed by, the laws of the State of California, which shall hold certain rights, title, and other
interests with respect to certain plant and fixed equipment at the Site.
QQ. Trust Two means the Iron Mountain Mine Remediation Trust II established pursuant to,
and governed by, the laws of the State of California and established to qualify as a trust
established pursuant to Section 4688 of the United States Internal Revenue Code.

12. Financial Assurance
a) In the event the Company ceases to be at least "A rated" by A.M. Best, or an equal or better
rating by a leading industry rating agency, should A.M. Best not exist, the Company shall provide
prompt notice to the Named Insureds and financial assurance in one or more of the following
1. A

(f) Financial test and corporate guarantee for closure. (1) An owner or operator may satisfy the requirements of this section by demonstrating that he passes a financial test as specified in this paragraph. To pass this test the owner or operator must meet the criteria of either paragraph (f)(1)(i) or (ii) of this section:

(i) The owner or operator must have:

(A) Two of the following three ratios: a ratio of total liabilities to net worth less than 2.0; a ratio of the sum of net income plus depreciation, depletion, and amortization to total liabilities greater than 0.1; and a ratio of current assets to current liabilities greater than 1.5; and

(B) Net working capital and tangible net worth each at least six times the sum of the current closure and post-closure cost estimates and the current plugging and abandonment cost estimates; and

(C) Tangible net worth of at least $10 million; and

(D) Assets located in the United States amounting to at least 90 percent of total assets or at least six times the sum of the current closure and post-closure cost estimates and the current plugging and abandonment cost estimates.

(ii) The owner or operator must have:

(A) A current rating for his most recent bond issuance of AAA, AA, A, or BBB as issued by Standard and Poor's or Aaa, Aa, A, or Baa as issued by Moody's; and

(B) Tangible net worth at least six times the sum of the current closure and post-closure cost estimates and the current plugging and abandonment cost estimates; and

(C) Tangible net worth of at least $10 million; and

(D) Assets located in the United States amounting to at least 90 percent of total assets or at least six times the sum of the current closure and post-closure cost estimates and the current plugging and abandonment cost estimates.

(2) The phrase “current closure and post-closure cost estimates” as used in paragraph (f)(1) of this section refers to the cost estimates required to be shown in paragraphs 1–4 of the letter from the owner's or operator's chief financial officer (§264.151(f)). The phrase “current plugging and abandonment cost estimates” as used in paragraph (f)(1) of this section refers to the cost estimates required to be shown in paragraphs 1–4 of the letter from the owner's or operator's chief financial officer (§144.70(f) of this title).

(3) To demonstrate that he meets this test, the owner or operator must submit the following items to the Regional Administrator:

(i) A letter signed by the owner's or operator's chief financial officer and worded as specified in §264.151(f); and

(ii) A copy of the independent certified public accountant's report on examination of the owner's or operator's financial statements for the latest completed fiscal year; and

(iii) A special report from the owner's or operator's independent certified public accountant to the owner or operator stating that:

(A) He has compared the data which the letter from the chief financial officer specifies as having been derived from the independently audited, year-end financial statements for the latest fiscal year with the amounts in such financial statements; and

(B) In connection with that procedure, no matters came to his attention which caused him to believe that the specified data should be adjusted.

(4) An owner or operator of a new facility must submit the items specified in paragraph (f)(3) of this section to the Regional Administrator at least 60 days before the date on which hazardous waste is first received for treatment, storage, or disposal.

(5) After the initial submission of items specified in paragraph (f)(3) of this section, the owner or operator must send updated information to the Regional Administrator within 90 days after the close of each succeeding fiscal year. This information must consist of all three items specified in paragraph (f)(3) of this section.

(6) If the owner or operator no longer meets the requirements of paragraph (f)(1) of this section, he must send notice to the Regional Administrator of intent to establish alternate financial assurance as specified in this section. The notice must be sent by certified mail within 90 days after the end of the fiscal year for which the year-end financial data show that the owner or operator no longer meets the requirements. The owner or operator must provide the alternate financial assurance within 120 days after the end of such fiscal year.

(7) The Regional Administrator may, based on a reasonable belief that the owner or operator may no longer meet the requirements of paragraph (f)(1) of this section, require reports of financial condition at any time from the owner or operator in addition to those specified in paragraph (f)(3) of this section. If the Regional Administrator finds, on the basis of such reports or other information, that the owner or operator no longer meets the requirements of paragraph (f)(1) of this section, the owner or operator must provide alternate financial assurance as specified in this section within 30 days after notification of such a finding.

(8) The Regional Administrator may disallow use of this test on the basis of qualifications in the opinion expressed by the independent certified public accountant in his report on examination of the owner's or operator's financial statements (see paragraph (f)(3)(ii) of this section). An adverse opinion or a disclaimer of opinion will be cause for disallowance. The Regional Administrator will evaluate other qualifications on an individual basis. The owner or operator must provide alternate financial assurance as specified in this section within 30 days after notification of the disallowance.

(9) The owner or operator is no longer required to submit the items specified in paragraph (f)(3) of this section when:

(i) An owner or operator substitutes alternate financial assurance as specified in this section; or

(ii) The Regional Administrator releases the owner or operator from the requirements of this section in accordance with §264.143(i).

(10) An owner or operator may meet the requirements of this section by obtaining a written guarantee. The guarantor must be the direct or higher-tier parent corporation of the owner or operator, a firm whose parent corporation is also the parent corporation of the owner or operator, or a firm with a “substantial business relationship” with the owner or operator. The guarantor must meet the requirements for owners or operators in paragraphs (f)(1) through (8) of this section and must comply with the terms of the guarantee. The wording of the guarantee must be identical to the wording specified in §264.151(h). The certified copy of the guarantee must accompany the items sent to the Regional Administrator as specified in paragraph (f)(3) of this section. One of these items must be the letter from the guarantor's chief financial officer. If the guarantor's parent corporation is also the parent corporation of the owner or operator, the letter must describe the value received in consideration of the guarantee. If the guarantor is a firm with a “substantial business relationship” with the owner or operator, this letter must describe this “substantial business relationship” and the value received in consideration of the guarantee. The terms of the guarantee must provide that:

(i) If the owner or operator fails to perform final closure of a facility covered by the corporate guarantee in accordance with the closure plan and other permit requirements whenever required to do so, the guarantor will do so or establish a trust fund as specified in §264.143(a) in the name of the owner or operator.

(ii) The corporate guarantee will remain in force unless the guarantor sends notice of cancellation by certified mail to the owner or operator and to the Regional Administrator. Cancellation may not occur, however, during the 120 days beginning on the date of receipt of the notice of cancellation by both the owner or operator and the Regional Administrator, as evidenced by the return receipts.

(iii) If the owner or operator fails to provide alternate financial assurance as specified in this section and obtain the written approval of such alternate assurance from the Regional Administrator within 90 days after receipt by both the owner or operator and the Regional Administrator of a notice of cancellation of the corporate guarantee from the guarantor, the guarantor will provide such alternative financial assurance in the name of the owner or operator.

demonstration that the Company satisfies the requirements of 40 C.F.R. Part 264.143(f)

for the Terminal Payment;
2. A guarantee to perform the obligations of the Company under the Terminal Payment by one
or more parent corporations or subsidiaries, or by one or more unrelated corporations that
have a substantial business relationship with the Company;
3. A surety bond guaranteeing the Terminal Payment;
4. One or more irrevocable letters of credit equaling the Terminal Payment; or
5. A trust fund.
b) If the Company seeks to provide financial assurance through a guarantee by a third party
pursuant to Paragraph a.2 above, the Company shall demonstrate that the guarantor satisfies the
requirements of 40 C.F.R. Part 264.143(f). If the Company seeks to demonstrate its ability to
provide financial assurance by means of the financial test or the corporate guarantee pursuant to
paragraph a.2 it shall resubmit sworn statements conveying the information required by 40 C.F.R.
Part 264.143(f) annually, on the anniversary of the effective date of the Policy. In the event that
the Oversight Agency, after a reasonable opportunity for review and comment by the Support
Agency, determines at any time that the financial assurances provided pursuant to this section
are inadequate, the Company shall, within 30 days of receipt of notice of the Oversight
Agency's determination, obtain and present to the Oversight Agency for approval one of the
other forms of financial assurance listed above. The Company's inability to demonstrate financial
ability to perform under the Policy shall not excuse performance of such activities.
c) The Company may change the form of financial assurance provided under this section at any
time, upon notice to and approval by the Oversight Agency, provided that the new form of
assurance meets the requirements of this section. In the event of a dispute, the Company may
change the form of the financial assurance only in accordance with the final administrative or
judicial decision resolving the dispute.

Advancing Sustainable Agriculture Through the Committee on World Food Security

Last year, the United States joined the global community in endorsing the Rome Principles for the eradication of hunger and global food insecurity. The principles recognize that no one country alone, no matter how generous, can win the fight to end hunger, and they embrace not only the coordinated action of the donors and our developing country partners, but also include a strong role for the multilateral organizations. The United States regularly participates in all global multilateral organizations related to hunger relief and food security. In fact, as the U.S. Representative, my team and I serve as the leaders for our work in the various Rome-based forums.

This week, I, along with Ambassador Patricia Haslach, Deputy Coordinator for Diplomacy for the Global Hunger and Food Security Initiative, and an interagency team from the U.S. State Department, USAID, the Millennium Challenge Corporation, and the U.S. Department of Agriculture are representing the United States at the 36th Committee on World Food Security (CFS). The CFS is a unique international body — one where all stakeholders, including member states, civil society organizations, and the private sector, are represented.

Working together with our partners, we will create a CFS that serves as the global platform for sharing best practices , identifying gaps, and creating tools that will support the work of countries to develop and implement their own sustainable agriculture programs. These tools will include a mapping instrument that will help us all better understand the results realized from our agriculture and nutrition related investments and activities. We're also working to ensure that CFS supports locally owned and created country-led processes. The country-led process represents a key factor in our Feed the Future Initiative . This process recognizes the importance of empowering countries while providing the tools necessary to accelerate the growth of their agricultural sector, reduce food insecurity, and improve nutrition, particularly in young children.

Reducing global food insecurity and malnutrition is no easy task. But, I am reasonably optimistic that we will reach our goal. This week, I witnessed the true value of the CFS (and the work of the United States) in this fight to end hunger and malnutrition when representatives from Rwanda, Bangladesh , and Haiti each made presentations. Their presentations included honest stories of the challenges they have faced in their countries and what they are doing to overcome those obstacles. By sharing their experiences and lessons learned, they in turn helped the international community (particularly other developing countries) understand how to better implement sustainable food security strategies and ultimately eliminate hunger and improve nutrition worldwide.


AIG currently has the equivalent of a single-A-minus credit rating from Moody's Investors Service and Standard & Poor's, but that investment-grade rating is largely due to the financial support the U.S. government has provided.

Absent government support, AIG would have a noninvestment-grade, or "junk," credit rating. AIG chief executive Robert Benmosche has said the company is trying to get its "stand-alone" rating back to single-A, which would entail sharply lowering its debt, maintaining or improving the profitability of its insurance businesses, reducing risk and disposing of noncore units. Last week, AIG reached a deal to sell 80% of its debt-heavy and loss-making consumer-finance business, removing a key drag on its finances.

Over the past year, various banks and insurers that received funds from the Treasury's Troubled Asset Relief Program repaid what they owed the government after raising money from investors from stock and debt sales. "A necessary step for other institutions was accessing the capital markets on their own before they went to the government with a plan to repay TARP," said Robert Riegel, managing director of Moody's U.S. Insurance team. He notes, however, that AIG's situation is more complicated because of the size and scale of its bailout.

Much of what AIG owes the New York Fed is expected to be repaid with cash from asset sales, though a portion could come from new debt issues. The annual interest rate on AIG's loan from the New York Fed is currently about 3.35%.

The regional Fed bank is looking to recoup a separate $55 billion in equity holdings from sales of AIG's overseas life insurance businesses and from mortgage securities previously linked to the insurer. The Treasury Department separately has a $49 billion investment in AIG preferred shares, some of which are widely expected to be converted in the future into AIG common stock and sold to investors.

According to MarketWatch, following the latest news, Standard & Poor's Rating Services announced that it would maintain AIG's credit rating at A-, but plans to conduct a review in light of the plan, which it called “a positive credit development.” S&P is likely to raise its stand-alone credit rating for the firm from BB to BBB+, and possibly even higher by the end of 2010.


Determining AIG's Worth

The rules for push-down accounting, which the Securities and Exchange Commission's staff laid out in a 2001 memo , hinge on rigid numerical tests for determining if a company has become “substantially wholly owned” by another entity. The method is prohibited with less than 80 percent ownership, permitted if ownership is 80 percent or more but less than 95 percent, and required (with some exceptions) at 95 percent or more.

The process works like this. When a transaction or series of deals results in a company becoming substantially owned by another entity, the new owner allocates its purchase price among the assets and liabilities it acquired, using their newly assigned fair values. Those values then are pushed down to the acquired company, which can cause either positive or negative adjustments to the items on its balance sheet.

Real World Numbers

The effects of push-down accounting on AIG's books probably would be sizeable. As of June 30 , AIG said 54 percent of the $850.5 billion of assets on its balance sheet were measured at fair value on a recurring basis, meaning 46 percent weren't. Just 4 percent of its $745.9 billion of liabilities were.

One example of an asset carried at cost, rather than fair value, is a $29 billion line on AIG's books called deferred acquisition costs, which include sales commissions and other expenses related to acquiring and renewing customers' insurance policies. These deferred costs aren't saleable. It is money out the door. Their fair value wouldn't be anywhere close to $29 billion in the real world. Yet that figure represented 38 percent of AIG's shareholder equity as of June 30.

Other fair-value adjustments could result in increases to AIG's equity. For instance, AIG said the fair values for some liabilities were lower than what its balance sheet showed.

An AIG spokesman, Mark Herr , declined to comment for this column, as did a Treasury spokesman, Mark Paustenbach . My guess is that neither Treasury nor AIG wants to highlight that push- down accounting is back on the table as an option. If more investors knew that it was, they just might demand the additional transparency.

3 22. The Settling Parties shall comply with the access and institutional control
4 requirements contained in the Access Agreement attached to this Consent Decree as Appendix
5 M.
6 23. The Site Operator shall comply with the access and institutional control
7 requirements contained in the SOW.
8 24. If the Oversight Agency or the Support Agency determines that land/water use
9 restrictions in the form of state or local laws, regulations, ordinances or other governmental
10 controls are needed to implement the interim remedies selected in the RODs, ensure the
11 integrity and protectiveness thereof, or ensure non-interference therewith, the Site Operator
12 shall cooperate with the efforts of the Oversight Agency or Support Agency to secure such
13 governmental controls, in accordance with the SOW.
14 25. Subject only to the provisions of this Consent Decree governing the specific
15 rights and obligations of the Released Parties and the Site Operator, the United States and the
16 State retain all of their access authorities and rights, as well as all of their rights to require
17 land/water use restrictions, including enforcement authorities related thereto, under CERCLA,
18 RCRA and any other applicable federal or state law, statutes, or regulations.
20 26. The Site Operator shall comply with all reporting requirements as specified in
21 the SOW.


5.1 Decisions relating to remedy selection.
5.1.1 Decisions regarding selection of future remedial actions. The Parties to
this MOU agree that with respect to any future investigation and remedy
selection regarding the IMM Site, the Parties will follow the process and
procedures set forth in CERCLA and the NCP. The Parties further
understand and agree that nothing in the MOU limits the State's rights
under Section 114 of CERCLA or any other applicable law, or the rights
and responsibilities of any Party under Section 121 of CERCLA or any
other applicable law.
5.1.2 Decisions regarding amending prior remedial actions. The Parties to
this MOU agree that with respect to adopting an ESD or amending the

remedial actions in place at the time of the entry of the Consent Decree or
remedies implemented after the entry of the Consent Decree, EPA and the
State will follow the process and procedures set forth in CERCLA and the
NCP. The Parties further understand and agree that nothing in this MOU
limits the State's rights under Section 114 of CERCLA or any other
applicable law, or the rights and responsibilities of any Party under
Section 121 of CERCLA or any other applicable law.
5.1.3 Waiver of ARARs for existing and future RODs. The Parties to this
MOU agree to consider the appropriateness of a permanent waiver of the
applicable or relevant and appropriate requirement ("ARAR") with respect
to the standard for receiving waters, including, but not limited to Spring
Creek, as to existing and future RODs for the IMM Site. If at some point
EPA determines that no further RODs will be issued for the IMM Site,
EPA will inform the State in writing at the earliest possible date and the
issue of the waiver of ARARs will be reviewed as soon as thereafter as
5.1.4 Changes to CERCLA. If in the future CERCLA changes in a material
manner so as to impact the expectation of the Parties with respect to the
process arid procedure for amending remedies at a federal Superfund site,
the Parties will agree to meet and formulate a process for future remedy
selection that is consistent with applicable state and federal laws in force at
that time.


Court for the Eastern District shall be held at Redding.

Read more: http://vlex.com/vid/sec-california-19212558#ixzz11HJZkgsS

28 USC 84 - Sec. 84. California

US Code - Title 28: Judiciary and Judicial Procedure

a private party may “recover expenses associated with cleaning up contaminated sites.” United States v. Atl. Research Corp., 551 U.S. 128, 131

October 11, 2010 CERCLA 'Arranger' Liability Narrowed


See also Madison 's explanation of the purpose of the 9 th Amendment in response to Hamilton 's objection in Federalist 84 :

1. “It has been objected also against a bill of rights, that, by enumerating particular exceptions to the grant of power, it would disparage those rights which were not placed in that enumeration, and it might follow by implication, that those rights which were not singled out, were intended to be assigned into the hands of the general (i.e. Federal) government, and were consequently insecure.  This is one of the most plausible arguments I have ever heard urged against the admission of a bill of rights into this system; but, I conceive, that may be guarded against.  I have attempted it, as gentlemen may see by turning to the last clause of the 4 th resolution (i.e. the original draft of the 9 th amendment)” (James Madison, U.S. House of Representatives, June 8, 1789)

 2. “The exceptions here or elsewhere in the constitution, made in favor of particular rights, shall not be construed as to diminish the just importance of other rights retained by the people; or as to enlarge the powers delegated by the constitution; but either as actual limitations of such powers, or as inserted merely for greater caution” (An early version of the 9 th amendment—the last clause of the 4 th resolution—as submitted by James Madison, June 8, 1789).



CERCLA allows PRPs to seek contribution from one another in order to apportion response costs equitably. But CERCLA bars contribution
claims against PRPs that have obtained administratively or judicially approved settlements with the government.

CERCLA thus provides an incentive for PRPs to settle by leaving non-settling PRPs liable for all of the response costs not paid by the settling PRPs.

We consider a question that has split the federal courts:
May a non-settling PRP intervene in litigation to oppose a consent decree incorporating a settlement that, if approved,
would bar contribution from the settling PRP? We join the Eighth and Tenth Circuits in holding that the answer is “yes.”



Treasury puts AIG TARP loss at $5 billion

Posted by Colin Barr October 5, 2010 3:51 pm

The government's most controversial bailout is still under water, if just barely.

Treasury said Tuesday in its two-year retrospective on the Troubled Asset Relief Program that the net cost of TARP's AIG ( AIG ) bailout at current market prices is $5.1 billion. The cost of the AIG bailout has been subject of considerable head scratching in recent days, with TARP winding down and the terms of federal assistance to AIG changing for the umpteenth time .


Moody's Investors Service affirmed American International Group's (AIG) A3 long-term issuer rating and negative outlook, reflecting the rating agency's concerns about the possible end of government support for the insurer.

The Moody's announcement comes in the wake of AIG's announcement of its plan to repay the U.S. Government.

Under the plan, AIG said it would repay its $20 billion direct debt to the Federal Reserve Bank of New York (FRBNY) and the $26 billion in interest the FRBNY has in two special purpose vehicles (SPVs) using its own resources and proceeds from other assets, including an initial public offering of American International Assurance Co. Ltd (AIA) on the Hong King Stock Exchange and proceeds from the $15.5 billion sale of American Life Insurance Co. (ALICO) to MetLife Inc.

Additionally, as part of the plan, $49.1 billion of preferred shares held by the Treasury Department would be converted into about 1.66 billion shares of AIG common stock. The Treasury will then sell the shares to the public over time.

Bruce Ballentine, Moody's lead analyst for AIG, said in a statement, “The proposed repayment plan signals AIG's progress in stabilizing its core insurance operations and exiting noncore businesses. It also points the way toward a sustainable capital structure.”

However, Moody's added that the plan “hastens the end of explicit government support for AIG, which has been an important consideration in the company's ratings.”

Moody's noted that the government will retain significant ownership of AIG for the near term, but the rating agency said it “believes that the ownership stake and implicit support will decline over the next couple of years. Therefore, the ratings of AIG and its subsidiaries will increasingly depend on their stand-alone credit profiles, raising the risk of downgrades if the credit metrics do not improve as expected.”

To attain a stable rating, Moody's said AIG must improve the intrinsic credit profiles of Chartis and SunAmerica Financial Group (SFG). AIG must also exit or de-risk noncore businesses, maintain robust liquidity within its major operations, and develop a standalone capital structure consistent with the company's current ratings.

Moody's said AIG could be downgraded if it fails to “improve certain credit metrics of the core insurance operations, such as profitability, reserve adequacy at Chartis and investment performance at SFG.”

Retention of noncore business risks that could strain capital and liquidity, and an inadequate standalone capital structure could also lead to a downgrade, Moody's said.

EPA Observes Children's Health Month

Dam Inspection By Owner


Explaining the AIG exit

Andrew Ross Sorkin's column today is entirely based on what he learned talking to Jim Millstein, the chief restructuring officer at Treasury, who seems to be very happy to talk now that he's officially announced Treasury's plan to exit its investment in AIG. I spoke to him for 70 minutes this afternoon, and now have a much clearer idea of how Treasury is thinking, how its math works, and why there's a disconnect between Treasury and critics like Kid Dynamite .

Millstein made a number of interrelated points.

First, the really big picture here is being missed. There's now an end in sight to a huge and enormously complex corporate restructuring, of an entity — AIG — which was too big to fail, too big to manage, and which had an enormous black hole at its heart known as AIG Financial Products. Today, AIG is set to emerge as a viable entity roughly half its former size, small enough to fail, with the black hole gone. That's not only a substantial achievement; it's also a good proof of concept when it comes to the FDIC's new resolution authority.

This involved a big strategic change of direction at AIG and Treasury. When Treasury installed Ed Liddy as AIG CEO in the immediate aftermath of the bailout, says Millstein, the idea was very much to sell off everything — essentially, to liquidate AIG entirely. But that's no longer the vision: instead, the idea is now to keep AIG going as a good-sized US insurance company, with a very strong property and casualty franchise and a solid life insurance franchise to boot. That company looks as though it's going to be worth something north of $60 billion, given its inherent profitability and general stock-market valuations of insurers.

But there's an enormous difference between an insurance company you're trying to liquidate, on the one hand, and an insurance company which you want to survive as a going concern, on the other: it's not just a difference of taking various assets off the auction block. Rather, it all comes down to credit ratings: in order to be viable as a going concern, any insurance company needs a solid investment-grade credit rating.

If AIG was just selling off its assets or putting its insurance operations into run-off mode, then its credit rating wouldn't matter so much — although the higher AIG's credit rating, the easier it becomes to unwind AIGFP's derivatives positions without facing enormous margin calls. But Treasury looked at the bids that AIG was receiving for its assets, and determined that they were being lowballed by the likes of MetLife, since potential buyers smelled a fire sale. As a result, Treasury needed to credibly be able to say that it didn't have to sell off all AIG's assets.

In order to do that, Treasury needed to take a large chunk of AIG's debt and convert it into some kind of equity. That's why Treasury ended up owning tens of billions of dollars in preferred stock: the ratings agencies don't consider preferred stock to be debt, and so they disregard it when assigning their ratings.

Now a lot of the arithmetic being done by the likes of Sorkin and KD is based on that preferred stock essentially being debt. After all, that's how AIG itself shows it on their website. But it's a very peculiar kind of debt: in fact, to a first approximation, it really is that nerdy joke, the zero-coupon perpetual bond. There's a dividend associated with the preferred stock, but AIG is under no obligation to pay it, and it's non-cumulative: if AIG doesn't pay the dividend then it doesn't remain on AIG's books as any kind of obligation. And there's no maturity date, either. So the obligation that AIG has to Treasury is essentially zero: it has to pay back $0 per year, in perpetuity.

The only real value to the preferred stock is that unless and until AIG starts paying the coupon, it can't make any dividend payments on its common stock. So the preferred stock is not entirely without value. But no one in their right mind would actually pay money for it.

So when Treasury swaps its preferred stock for common stock, it's swapping something with essentially zero secondary-market value for something much more liquid and marketable.

Of course, Treasury brought this on itself, back in February 2009, when it swapped cumulative preferred stock paying a 10 percent coupon for new non-cumulative preferred stock. Without that move, there would never have been any equity value in AIG at all — AIG would have been a loss-making entity in perpetuity. But of course Treasury owns most of the equity in AIG, so it essentially made the decision to swap debt in an insolvent AIG for equity in a solvent AIG. And the reasoning was that the liquidation value of an insolvent AIG was much lower than the market value of a solvent AIG which could operate as a going concern.

At some point, Treasury was always going to insist on converting its new zero-coupon perpetual bonds into something a bit more useful, like secured debt or unsecured debt or cumulative preferred stock or common stock. They were always a halfway house, a way of getting here from there. And in the end, Treasury decided that the easiest and most profitable thing to do would be to just convert them all into common stock.

I'm not sure I would have made the same decision. AIG is making about $8 billion a year at this point, which is more than enough to support a bit more in the way of debt without making too much of a dent in its credit rating. If Treasury had converted say $20 billion of its current preferred stock into new preferred stock paying a 5% coupon, that would pay Treasury $1 billion a year in perpetuity, and could probably be sold at or near par. Instead, that $1 billion a year is being valued on a p/e basis in the stock market, at between $8 billion and $12 billion. That's less than the $20 billion (ish) it would be worth if it looked more like debt.

But Treasury wants to exit its investment, and selling $20 billion of perpetual AIG preferred stock would be decidedly non-trivial. Selling AIG stock is a lot easier. So Treasury decided to simply convert everything to common stock, in an attempt to get out of the insurance business as quickly as possible.

Looked at this way, it's silly to assign hard dollar values to the Series E and Series F preferred stock and then complain when they're being swapped for equity worth less than that sum. Instead, the only number which matters is the total amount of money which Treasury ends up getting from selling off bits of AIG and, ultimately, AIG itself. And there's a secondary consideration, too: Treasury wants to do that sell-off as quickly as possible.

Treasury's exit strategy certainly maximizes the speed of the sell-off. And Millstein makes a credible case that at the end of the day, Treasury is going to get out of AIG more money than it put in — some $13 billion or so in profit. That sum is not nearly commensurate with the risk that Treasury took when it bailed out the insurer. But really, Treasury had no choice: when it was bailed out, AIG had a whopping $2.4 trillion in derivatives contracts, which would have caused major systemic consequences if they had been unwound in a Lehman-style forced liquidation. We would all be much poorer, today, if AIG had not been bailed out. Any profit on the bailout is just gravy.

So it's easy to get caught up in the weeds here. But rather than getting caught up with the relative valuations of Series C and Series F, the big picture is relatively simple: Treasury put about $47.5 billion into AIG, and the Fed added a bunch more. The Fed is soon going to get paid off in full, with interest. And Treasury is going to end up with an equity stake in AIG worth something north of $60 billion; it's optimistic that it'll be able to sell that stake in the market, much like it's selling off its Citigroup stake right now. That equity stake is a matter of choice; Treasury could have structured things many other ways, and probably could have ended up with something less liquid but more valuable if it had wanted to do so.

Millstein is a fan of common equity, and is looking forward to the day when he can start selling off the government's AIG stake in the secondary market. Then we'll be done with AIG, we won't have big losses to show for it, and we will have dealt with the AIGFP black hole in the interim. It's a pretty impressive achievement, all told. And the technical dynamics of exactly what the government is doing with its current slightly peculiar preferred stock are ultimately something of a distraction.

(A couple of footnotes, which don't fit into the broader narrative: right now, AIG has the right to borrow $22 billion more from Treasury, in the form of that Series F perpetual zero-coupon preferred stock, at any time. Under this exit plan, AIG has to use that whole credit line to pay off the Fed, and then needs to repay it with various asset sales, including the sale of the assets it's getting from the Fed. So the plan puts Treasury at less risk that suddenly it will have no choice but to send lots of money to a hungry AIG. And, AIG won't only be an insurance company: for the time being, it still owns an aircraft leasing company called ILFC. But it has said that ILFC is non-core, and it will be happy to sell it at the right price.)


It is well established that subject matter jurisdiction cannot be expanded or contracted “by prior action or
consent of the parties.” Am. Fire & Cas. Co. v. Finn, 341 U.S. 6, 17-18 (1951)


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

Army Dam Inspection


The Engineer Research and Development Center's (ERDC) Dam Inspection Team uses a mix of in-house personnel, Corps of Engineers' District personnel, and civilian consultants to help the U.S. Army Directorates of Public Works maintain compliance with regulations regarding dam safety.

Federal agencies are required by Public Law 92-367, as amended by Public Law 104-303, to inspect dams under their jurisdiction and to biennially report the data to the National Inventory of Dams (NID).

The ERDC Dam Inspection Team assists the Army's Installation Management Command and individual Army installations in complying with the Army's policy, as stated in Army Regulation 420-1. Army policy also requires that each installation have a current Emergency Action Plan (EAP) for each of the high- and significant-hazard dams and an EAP Standard Operating Procedure for low-hazard dams.

Interior Does About-face on Scientific Integrity

This week, the Interior Department released a new policy to protect scientific integrity in the department. OMB Watch joined other public interest groups in submitting comments on the department's draft policy in September. The new policy attempts to address concerns, raised in those comments and others, that the draft policy did not go far enough to prevent abuses of the department's scientific activities and decision making.

                          of the U.S. Department of the Interior

The new policy, released as an order of Interior Secretary Ken Salazar, drops many of the specifics of the draft policy. Instead, it establishes principles designed to be consistent with President Obama's 2009 scientific integrity memo . The particulars of the policy will be detailed in a future addition to the department's employee manual, as well as guidance and implementation plans developed by Interior bureaus and offices.

The new policy was praised by public interest groups including the Union of Concerned Scientists and Public Employees for Environmental Responsibility , who had criticized the earlier draft.

Interestingly, the new policy mentions that government-wide guidance on scientific integrity is "expected" in 2010 from the White House Office of Science and Technology Policy. That guidance, ordered in 2009 as part of the president's memo, is now more than a year overdue . Interior's statement suggests the guidance may finally be released before the end of this year.

EPA Administrator Addresses Farm, Ranch, and Rural Communities Federal Advisory Committee

Agency announces new committee members

WASHINGTON – Today U.S. Environmental Protection Administration Administrator Lisa P. Jackson addressed the newly-appointed members of the Farm, Ranch, and Rural Communities Federal Advisory Committee (FRRCC) during their first official meeting since being appointed. The FRRCC is an independent committee, established by EPA in 2008, that advises the agency on a wide range of environmental issues of importance to agriculture and rural communities. EPA also announced the new committee members, who were appointed in May.

This morning's remarks highlighted Administrator Jackson's ongoing efforts to engage American farmers and highlight opportunities for cooperation between the environmental and agricultural communities. Her speech follows EPA Deputy Administrator Bob Perciasepe's tour of Northern California farms last week, where he met with local farmers to see and discuss efforts from the agricultural sector to protect our nation's natural resources.

“EPA is working to ensure that American farmers, ranchers and rural communities are more environmentally sustainable and economically resilient than ever before,” said EPA Administrator Lisa P. Jackson. “America's farmers have a broad impact on everything from daily food prices to widespread environmental impacts to emerging fuel technologies. We need them to be part of our decision making process, and this meeting is yet another step in our engagement with the agricultural community.”

The new FRRCC members include: Steven S. Balling, Ph.D. (Chair), Del Monte Foods; Michael W. Brubaker, Senate of Pennsylvania; Suzy Friedman, Environmental Defense Fund; Steve McNinch, Western Plains Energy; Bill Snapp, Shoshone-Bannock Tribes; Peggy Beltrone, Cascade County Commission; Robert T. Burns, Ph.D., University of Tennessee; Omar J. Garza, Texas Mexico Border Coalition; Martha L. Noble, National Sustainable Agriculture Coalition; Alice Ann Sorenson, Ph.D., American Farmland Trust; George J. Boggs, Whatcom Conservation District; Gabriela Chavarria, Ph.D., Natural Resources Defense Council; Lee McDaniel, Harford Soil Conservation District; David D. Petty, Iowa River Ranch; G. Douglas Young (Deputy Chair), Spruce Haven Farm and Research Center; A. Richard Bonanno, Ph.D.; University of Massachusetts, Lawrence E. Clark, Farm Pilot Project Coordination; Tom McDonald, JBS Five Rivers Cattle Feeding; Jennie S. Hughes Popp, Ph.D., University of Arkansas; Ray E. Vester, E & M Farms Partnership; Daniel A. Botts, Florida Fruit and Vegetable Association; James W. Ford, Square “O” Consulting; Janis McFarland, Ph.D., Syngenta Crop Protection; Larry D. Sanders, Ph.D., Oklahoma State University; Lori A. Berger, Ph.D., California Specialty Crops Council; Robert L. Carlson, North Dakota Farmers Union; Archilus L. Hart, North Carolina Department of Agriculture; Bill Northey, Iowa Department of Agriculture and Land Stewardship; and Dennis H. Treacy, Smithfield Foods.

More information on the FRRCC: http://www.epa.gov/ocem/frrcc/

Due Process and the EPA's Enforcement of CERCLA: The Problem with Big Business Challenges to a Small Business Problem
Scott Corley
affiliation not provided to SSRN

April 15, 2010

In the past few years, a number of challenges have been mounted against the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). Specifically a challenge mounted by the General Electric Company has asserted that the Environmental Protection Agency's (EPA) pattern and practice of enforcing CERCLA violates due process under the Ex Parte Young and Mathews v. Eldridge tests.

Using an assertion that constitutional challenges to CERCLA are only likely to succeed when (1) the property interest infringed by the government is not strictly monetary; (2) the statute calls for a complete lack of pre-deprivation procedures; and (3) the statute's purported delay of review actually results in the complete preclusion of review, this paper argues that the EPA's enforcement of CERCLA raises serious constitutional concerns when it is applied against small businesses, but not when it is enforced against large corporations. This is because large corporations like GE will be able to bear the decontamination costs associated with CERCLA and still mount judicial challenges at the end of the process while smaller businesses will lose financing due to potentially astronomical environmental cleanup costs and penalties that can escalate at a rate of nearly $1 million per month. The result is that the statute's purported delay of review actually completely precludes review for smaller businesses but not for large corporations.

For this reason, the strongest argument that can be made concerning the constitutionality of the EPA's enforcement of CERCLA arises when environmental liabilities are imposed on small businesses. Ultimately, this context provides the clearest evidence that certain provisions of CERCLA have been enforced in a way that has violated the due process rights of certain potentially responsible parties (PRPs).

Keywords: EPA, CERCLA, Pattern and Practice, Due Process, General Electric v. Jackson, PRPs, UAOs, Mathews v. Eldridge, Ex Parte Young

Working Paper Series


EPA Should Revise Outdated or Inconsistent EPA-State Clean Water Act Memoranda of Agreement
What We Found
NPDES MOAs between EPA and States do not ensure Agency management control and effective oversight over a national program administered by States that is capable of providing equal protection to all Americans. EPA Headquarters does not hold EPA regional or State offices accountable for updating their MOAs when necessary and relies on other planning and management mechanisms to exercise control over State programs. However, MOAs are critical because they are the common denominator for State-authorized programs and should represent a common baseline. Outdated MOAs or MOAs that are not adhered to reduce EPA’s ability to maintain a uniform program across States that meets the goals of CWA sections 101 and 402. An effective national program must maintain consistent management control and oversight of State programs.
What We Recommend
We recommend that EPA ensure that all NPDES MOAs contain essential elements for a nationally consistent enforcement program, including CWA, Code of Federal Regulations, and State Review Framework criteria. We recommend that EPA develop and provide a national template and/or guidance for a model MOA; direct EPA regions to revise outdated or inconsistent MOAs to meet the national template and standards; and establish a process for periodic review and revision of MOAs, including when the CWA or Code of Federal Regulations are revised or when State programs change. Finally, we recommend that EPA establish a national, public clearinghouse of all current MOAs so that EPA, States, and the public have access to these documents.
EPA generally agreed with our recommendations, saying it would coordinate assessment and revision of NPDES MOAs with implementation of the CWA Action Plan. Three recommendations are open and one recommendation is listed as undecided. In its final response to this report, EPA should provide estimated or actual completion dates for all recommendations.


Catalyst for Improving the Environment

Citations for: Withdrawal of Proposed Rules; Discontinuing Rulemaking Efforts Listed in the Unified Agenda of Federal Regulatory and Deregulatory Actions

Explore citations and references




In April 2009, the OIG identified 10 key management challenges for Fiscal Year 2009. Three of those challenges impact EPA’s management and enforcement capability:
1 EPA’s organization and infrastructure;
2 Oversight of delegations to States; and
3 Performance measurement.

we believe that the underlying issues persist.

EPA’s Organization and Infrastructure
In July 1970, the first EPA Administrator formally organized EPA based upon existing environmental legislation that encompassed discrete media programs for water, air, pesticides, radiation, and solid waste, as well as 10 regional offices and a laboratory structure inherited from other federal agencies. However, President Nixon’s Advisory Council on Executive Organization, also known as the Ash Council, recommended organizing EPA according to functional categories (e.g., monitoring, research, standard-setting, enforcement, assistance) rather than along media lines (e.g., air, water, land). This recommended organizational approach was intended to recognize the interrelated nature of pollution problems, acknowledge that pollutants cut across media lines, encourage balanced budget and priority decisions between component functions, and permit more effective evaluations of total program performance.
However, the realities of environmental legislation made this type of integration difficult and would require an incremental, three-phased approach. The first phase of EPA organization was dominated by its discrete medium orientation. The second phase followed a hybrid functional/media structure similar to EPA’s current organization. Finally, the third phase would eliminate the media-oriented program offices in favor of the functional units recommended by the Ash Council. This was never realized. Studies we reviewed indicate that EPA’s failure to move to this third phase may hinder EPA’s ability to effectively enforce and oversee environmental laws.
OIG work has also shown that EPA’s organization has impeded achievement of environmental goals and efficient use of resources. Recurring themes include: inadequate coordination between EPA headquarters offices; inconsistencies in enforcement among EPA’s Regions; inadequate national (Agency) guidance, procedures, or priorities on programs; a lack of strategic plans that link program missions, goals, and performance measures; and decentralized management contributing to allocation and resource management problems. For example:
In a review of EPA’s Drinking Water Program, it was unclear whether the Office of Enforcement and Compliance Assurance (OECA) was adequately coordinating its efforts with the Office of Ground Water and Drinking Water (OGWDW). OECA reported that it has “substantive, regular, and consistent” coordination with OGWDW on both rule development and enforcement, while other sources indicated that OECA’s enforcement priorities may be out of alignment with those of OGWDW.
In a review that assessed EPA’s oversight and assistance of tribal community water systems, we found that the five Regions we reviewed varied in the quality of oversight they provided to tribal community water systems. One Region failed to monitor for certain contaminants, chose not to enter known monitoring violations into the Safe Drinking Water Information System, and did not conduct enforcement actions against the systems that committed these violations.
 EPA relies heavily on guidance to communicate Agency policy and regulations. OIG work has shown a culture in EPA that treats guidance as non-binding to parties, including EPA Regions, and accepting of guidance that is incomplete, draft, or interim. This could lead to inconsistent implementation and impede EPA’s ability to effectively enforce necessary actions since private parties may perceive unfairness and the absence of boundaries on their activities.
 In a review of the Border 2012 Program, a joint U.S.-Mexico effort to improve the environment and protect the health of people living along the border, we found that success varied across the different media areas as well as by leadership despite a program structure aimed at reducing stove-piping. Program implementation varied depending on the Region. There was no systematic roadmap that defined the relationships between resources, activities, and intended outcomes; nor were there management controls to ensure that results were documented or that goals were being achieved.
 An OIG review found that EPA’s decentralized management of the Superfund program contributes to allocation and resource management problems. EPA spreads its Superfund appropriation across a variety of offices and Regions. This has limited EPA’s opportunities to effectively manage Superfund resources for cleanup.
Oversight of Delegations to the States
EPA’s mission is to protect human health and the environment. To accomplish its mission, EPA develops regulations and establishes programs that implement environmental laws. These programs may be delegated to State, local, and tribal agencies that request to take primacy of the program. Delegation, however, does not relieve EPA of its statutory and trust responsibilities for protecting human health and the environment. EPA performs oversight of State, local, and tribal programs in an effort to provide reasonable assurance that delegated programs are achieving their goals. EPA does not have the resources to effectively administer all its responsibilities directly. EPA relies heavily on local, State, and tribal agencies for compliance and enforcement and to obtain performance data. In its FY 2007 Performance and Accountability Report, EPA states it delegated the responsibility for issuing permits and for monitoring and enforcing compliance to the States and tribes.
A critical management challenge to EPA is oversight of its delegations to States. Federal environmental statutes grant EPA a significant role in implementing the intent of the law, and also authorize a substantial role for States. However, quality data is often lacking to ensure that the intent of the law is met. Also, Federal requirements establish consistency for businesses and within industries nationwide. States’ discretion adds flexibility to address specific circumstances and local issues. However, joint implementation and enforcement leads to special challenges in interpretations, strategies, and priorities.
Our evaluations have shown that EPA’s oversight of State programs requires
improvement for several reasons. These include inconsistent enforcement guidance
interpretation; States and Regions not meeting minimum reporting requirements;
differing standards for State delegation agreements among the Regions; disagreements on
enforcement priorities between OECA and the Regions; inaccurate data systems; and
internal control deficiencies. For example:
 We found that EPA did not provide effective enforcement oversight of major facilities with National Pollutant Discharge Elimination System (NPDES) permits in long-term significant noncompliance. EPA inconsistently applied guidance defining timely formal enforcement actions. Also, EPA guidance did not provide meaningful direction on what constitutes “appropriate” actions. Timely and appropriate formal enforcement actions are important to minimize additional pollutants from being discharged into the nation’s waters to ensure protection of human health and the environment. We estimated that up to 51 million pounds of excess pollutant loads were discharged during our review period by 44 facilities reviewed, representing loads that could have been minimized.
 EPA and States did not maintain complete and accurate records of NPDES compliance and enforcement activities. Many Region and State files were incomplete, and data in EPA’s information systems were incomplete and inaccurate. Further, Regions and States did not report inspection-related violations in EPA’s Permit Compliance System. An accurate history of the compliance and enforcement activities at a facility is important for oversight and making future enforcement decisions. The lack of accurate information inhibits EPA’s ability to provide effective oversight to NPDES major facilities and thus protect human health and the environment from excess levels of toxic or harmful pollutants.
 We found Regions and States did not always oversee industrial users discharging into wastewater treatment plants without approved programs. EPA was working on developing guidance for overseeing categorical and significant industrial users discharging to plants without approved programs, but had put it off due to other priorities.
 In a review of EPA’s oversight and assistance of tribal community water systems, we found internal control deficiencies existed in administering EPA’s oversight in some of the Regions we reviewed. To varying degrees, tribal drinking water records were incomplete due to a failure to maintain oversight of system operations and/or poor records management. Internal controls are an important safeguard for ensuring that systems operate as intended. Deficiencies in these controls may indicate that the systems are vulnerable to failure, resulting in increased risk to public health.
Mr. Chairman, EPA’s ability to effectively manage, oversee, and enforce the environmental laws under its jurisdiction, including the Clean Water Act, has been impeded by several factors including its current organizational structure, how it oversees State delegated authorities, and limitations in performance measurements. On the 37th anniversary of the Clean Water Act, we believe that a recommitment to the protection of the nation’s waters can be achieved by an EPA that is strategically aligned to uniformly enforce environmental statutes and provide consistent oversight of its Regions and State delegations. This will require a comprehensive review of EPA’s current organization and a commitment to implement best practices.

· Sustainable Communities Partnership —A collaborative Department of Housing and Urban Development, Department of Transportation, and EPA partnership to improve access to affordable housing, more transportation options, and lower transportation costs while protecting the environment in communities nationwide.

The principles of environmental justice uphold the idea that all communities overburdened by pollution – particularly minority, low income and indigenous communities – deserve the same degree of protection from environmental and health hazards, equal access to the decision-making process and a healthy environment in which to live, learn, and work. EPA serves as the lead for environmental justice issues in the federal government.

More information on the Interagency Working Group on Environmental Justice:


View photos from the meeting:



Subpart E--Procurement Standards of this part. Sec. 1274.902 Purpose (XXX 1995)

The purpose of this cooperative agreement is to conduct a shared resource project that will lead to REMINERALIZATION OF DEPLETED CROP LANDS .

This cooperative agreement will advance the technology developments and research which have been performed on IRON MOUNTAIN MINE . The specific objective is to OPTIMIZE AVAILABILITY OF MINERALS IN SOIL FOR CROPS .

This work will culminate in BETTER AND SAFER FOOD . Sec. 1274.903


Responsibilities (XXX 1995). (a) This cooperative agreement will include substantial [ EPA, DOJ, NOAA, NASA, DOE, DOI, FEMA, FWS, CALIFORNIA] _____________participation during performance of the effort. _______ and the Recipient agree to the following Responsibilities, a statement of cooperative interactions to occur during the performance of this effort . ??? and the Recipient shall exert all reasonable efforts to fulfill the responsibilities stated below. (b) ??? Responsibilities. Since ??? contractors may obtain certain intellectual property rights arising from work for ??? in support of this agreement, ??? will inform Recipient whenever ??? intends to use ??? contractors to perform technical engineering services in support of this agreement. The following responsibilities are hereby set forth with anticipated start and ending dates, as appropriate: ------------------------------------------------------------------------ Responsibility Start End ------------------------------------------------------------------------ ------------------------------------------------------------------------ (c) Recipient Responsibilities. The Recipient shall be responsible for particular aspects of project performance as set forth in the technical proposal dated ____________, attached hereto (or Statement of Work dated ____________, attached hereto.) The following responsibilities are hereby set forth with anticipated start and ending dates, as appropriate: ------------------------------------------------------------------------ Responsibility Start End ------------------------------------------------------------------------ ------------------------------------------------------------------------ Sec. 1274.904 Resource Sharing Requirements (XXX 1995). (a) NASA and the Recipient will share in providing the resources necessary to perform the agreement. ??? funding and non-cash contributions (personnel, equipment, facilities, etc.) and the dollar value of the Recipient's cash and/or in-kind contribution will be on a ________ ( ??? ) - ________ (Recipient) basis.


Congressional Oversight Panel Assesses the TARP on the Eve of Its Expiration

Finds Major Economic Weaknesses, Stigma, and Moral Hazard Remain

WASHINGTON, D.C. - The Congressional Oversight Panel today released its September oversight report, "Assessing the TARP on the Eve of Its Expiration." The Panel found that, although the Troubled Asset Relief Program (TARP) provided critical support to the financial markets at a time when market confidence was in freefall, the program has been far less effective in meeting its other statutory goals, such as supporting home values, retirement savings, and economic growth.

Under its original authorization, the TARP would have expired at the end of 2009. Late last year, however, the Secretary of the Treasury exercised his legal authority to extend the program until October 3, 2010, the latest date authorized by statute. This month, in anticipation of the final expiration of the TARP's most significant authorities, the Panel explored the program's overall effectiveness. The Panel found that:

Although the TARP quelled the financial panic in the fall of 2008, severe economic weaknesses remain even today. Since the TARP was authorized in October of 2008, 7.1 million homeowners have received foreclosure notices. Since their pre-crisis peaks, home values have dropped 28 percent, and stock indices -- which indicate the health of many Americans' most significant investments for college and retirement -- have fallen 30 percent. Given that Treasury was mandated by law to use the TARP to address these measures of the economy, their lingering weakness is cause for concern.

The TARP's extension served primarily to extend the implicit guarantee of the financial system. When the Secretary extended the TARP, he stated that any new use of funds would be limited to providing mortgage foreclosure relief, extending capital to small and community banks, and supporting the securitization market. He also noted that extending the TARP would preserve his authority to intervene swiftly in the event of another financial crash -- essentially prolonging the government's "implicit guarantee" of the financial system. In practice, this second justification proved by far the more significant, as Treasury did not add any additional funding to any programs intended to address the specific economic weaknesses identified by the Secretary.

The TARP's "stigma" has grown and may prove an obstacle to future financial stability efforts. Treasury's policy choices have been increasingly constrained by public anger about the TARP. For example, the TARP is today so widely unpopular -- due in part to shortcomings in Treasury's transparency and its implementation of TARP programs -- that some banks refused to participate in the Capital Purchase Program for fear of losing customers. The unpopularity of the TARP may mean that the government will not authorize similar policy responses in the future. Thus, the TARP's greatest consequence may be that the government has lost some of its ability to respond to financial crises.

Economists surveyed by the Panel raised severe concerns about moral hazard. The Panel sought the input of four prominent economists on the effectiveness of the TARP. These experts generally agreed both that the TARP was necessary to stabilize the financial system and that it had been mismanaged and could pose significant costs far into the future. Further, the economists unanimously felt that the program created significant moral hazard. TARP offered its funding on relatively generous terms, without requiring participating institutions to enter liquidation or receivership, remove failed managers, or wipe out existing shareholders. The fact that the government chose not to impose such stringent costs meant that the TARP's moral hazard costs were much greater than necessary.

The full report is available at http://cop.senate.gov/. The Congressional Oversight Panel will continue to issue monthly reports evaluating the TARP until the Panel's statutory authority expires on April 3, 2011.

The Congressional Oversight Panel was created to oversee the expenditure of the Troubled Asset Relief Program (TARP) funds authorized by Congress in the Emergency Economic Stabilization Act of 2008 (EESA) and to provide recommendations on regulatory reform. The Panel members are: J. Mark McWatters; Richard H. Neiman, Superintendent of Banks for the State of New York; Damon Silvers, Policy Director and Special Counsel for the AFL-CIO; Kenneth Troske, William B. Sturgill Professor of Economics at the University of Kentucky; and Elizabeth Warren, Leo Gottlieb Professor of Law at Harvard Law School.


TARP cop sees fraud cases rising

By David Lawder

WASHINGTON | Tue Sep 21, 2010 7:46pm EDT

WASHINGTON (Reuters) - The top bailout cop said evidence of fraud among banks that sought taxpayer funds was on the rise, and some of his investigations involve amounts exceeding $550 million.

Neil Barofsky, the special inspector general for the Troubled Asset Relief Program, told the Reuters Washington Summit on Tuesday that his office has 120 open investigations of banks that "reflect the full array of banks that applied for and received TARP funding."

These cases are likely to lead to criminal charges for more bank executives and founders, Barofsky said.

"I just see those numbers going up," he added.

Investigations by the SIGTARP, as his operation is known, so far have led to charges against eight bank executives, including Lee Farkas, former head of bankrupt mortgage lender Taylor, Bean and Whitaker.

Farkas is facing federal charges related to his participation in a scheme to fraudulently obtain $553 million in TARP funds for Montgomery, Alabama-based Colonial Bancshares. The investigation prevented the funds from being disbursed, and Colonial subsequently failed.

Barofsky said that some cases could top the Colonial case in terms of the dollar amount of attempted or actual theft from taxpayers. "We have investigations in, above, and below that range," he added.

The SIGTARP operation is expanding its staff and has opened branch offices in New York, Atlanta, Los Angeles and San Francisco to pursue these investigations, even as the $700 billion bailout program is set to cease new investments on October 3.

Barofsky, who rides around Washington in a black "plainclothes" Chevrolet Impala equipped with a siren and emergency lights, said SIGTARP will hit its peak staff and activity in the next two years, roughly trailing TARP's peak activity by about a year.

The operation will stay in business until the last dollar of bailout investments is repaid or written off, and because some programs could last 10 years, SIGTARP may have another eight to run. But Barofsky said it would likely scale back within a few years as investments are exited.

Barofsky also said he will audit the General Motors Co GM.UL initial public offering soon after it is completed, with the aim of correcting any deficiencies in the process to aid the government's exit from other investments, such as Chrysler Group, insurer American International Group ( AIG.N ) and automotive lender GMAC Financial Services.


Barofsky also said his staff is deep into an investigation of the New York Federal Reserve Bank's disclosures about controversial taxpayer-funded payments to AIG counterparty banks as part of the insurer's massive bailout.

Last January, the U.S. House of Representatives Committee on Oversights and Investigations, subpoenaed hundreds of thousands of pages of Fed documents involving the $62 billion in payments to Wall Street and foreign bank to liquidate credit default swap contracts written by AIG. However, the Fed did not provide the same documents to SIGTARP for a previous audit it conducted on the same bank payments.

Disclosure of the payments, often referred to as a "back door bailout" for banks, came months after they were made and fueled public anger over the $180 billion AIG rescue. Treasury Secretary Timothy Geithner, who ran the New York Fed at the time, denied any involvement in the disclosure decisions, but faced calls in Congress to resign over the controversy.

Judge refuses to dismiss AIG lawsuit

(Reuters) - A judge refused to dismiss a securities fraud lawsuit accusing American International Group Inc ( AIG.N ) of misleading investors about its exposure to subprime mortgages, which led to a liquidity crisis and $182.3 billion of federal bailouts.

Monday's ruling by U.S. District Judge Laura Taylor Swain allows the case to go forward and could pave the way for a trial over AIG's near collapse. The government rescue led taxpayers to take a nearly 80 percent stake in the New York-based insurer.

AIG spokesman Mark Herr declined to make an immediate comment.

Investors led by the State of Michigan Retirement Systems accused AIG, executives and directors of failing to disclose the risks that AIG had taken on through its portfolio of credit default swaps (CDS) and a securities lending program.

Swain wrote that the allegations in the class-action lawsuit were sufficient to suggest there was "a strong inference of fraudulent intent" in how AIG communicated publicly about the risks in the portfolio of credit default swaps.

She also said that plaintiffs made sufficient arguments to claim that AIG "materially misled the market" in hiding its "expansive" CDS underwriting, repeatedly expressing confidence in its ability to manage risk and justifying a May 2008 capital raising.

Among the defendants are Martin Sullivan, a former AIG chief executive; Joseph Cassano, who ran AIG's Financial Products unit, which managed the CDS portfolio; current and former directors; 34 banks that underwrote AIG securities, and former accountant PricewaterhouseCoopers LLP.

The lawsuit covers investors who owned AIG securities between March 16, 2006, and September 16, 2008, when AIG received its first bailout.

E. Powell Miller, a lawyer for the lead plaintiff, declined to make an immediate comment, saying he had yet to confer with his client.

Brad Karp, a lawyer for the banks, declined to make an immediate comment. James Gamble, a lawyer for the outside directors, declined to comment. Lawyers for Sullivan, Cassano and PwC did not immediately return calls seeking a comment.

Shares of AIG rose $1.67, or 4.6 percent, to $38.14 in afternoon trading on the New York Stock Exchange.

The case is In re: American International Group Inc 2008 Securities Litigation, U.S. District Court, Southern District of New York, No. 08-05072.

(Reporting by Jonathan Stempel; Editing by Maureen Bavdek and Steve Orlofsky)

Oct. 23, 2010

A New York judge held former American International Group Inc. Chief Executive Maurice “Hank” Greenberg liable for damages on a reinsurance transaction that state Attorney General Andrew Cuomo said helped the insurer hide losses.

New York State Supreme Court Justice Charles Ramos also found former Chief Financial Officer Howard Smith liable on the transaction, which involved an entity called Capco Reinsurance Co. It was allegedly used to hide more than $200 million of losses from an auto warranty insurance program.

THRENGES. Quia vero non erant adhuc tempore Regis Willielmi milites in Anglia, sed Threnges, prcecipit rex ut de eis mtfites Jierunt ad defendendum ierram, fecit aulem Lanfrancus Threngos suos mililes, tyc. Somner's Gavelfc. 123, 210. They were vassals, but not of the lowest degree, of those who held lands of the chief lord. The name was imposed by the Conqueror ; for when one Edward Sharnbourn of Norfolk, and others, were ejected out of their lands, they complained to the Conqueror, insisting that they were always on his side, and never opposed him, which upon inquiry he found to be true, and therefore he commanded that they should be restored to their lands, and for ever after be called Drenches. Spelm. See Drenches, Sharnburn. 

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who stinks?

Interlakes Special Recreation Management Area

A land exchange with the timber company enabled the BLM to consolidate alternate “checkerboard” sections of land in a popular off-roading area of western Shasta County.  Addition of the 9,000 acres to the recreation opened up legal access to even more riding areas.  BLM also used the newly acquired lands provide alternate riding areas, improving natural resource protection.

05/01/1986 P R C Environmental Management, Inc. Environmental Protection Agency - Office of Waste Programs Enforcement Endangerment assessment draft final rpt, w/TL to T Mix fr T Brisbin 51189

sic utere tuo, ut alienum non laedas, which means “use your own (property) so as not to harm another.”




[California] IRON MOUNTAIN MINE (CAD980498612)

ARMAN, TED W 2010-0021996 RESCISSION 7/22/2010



1) Did the gold vein systems of the Klamath Mountains and the Sierra Nevada foothills develop jointly during late Upper Jurassic to late Lower Cretaceous or (how) did the mineralizing regime change with the separation of both geomorphologic units? 2) Did the vein formation occur as a single continuous event (cf. Snow et al., 2008) or as multiple events (e.g., Elder and Cashman, 1992)? 3) If there is a unifying geological model to explain the genesis of the Mother Lode and the Klamath Mountains gold deposits, why did the Sierra Nevada foothills get mineralized more intense than the Klamath Mountains (with respect to the gold production rates)?

Brief History of EPA's Debarment Program

EPA's Debarment Program officially began in 1982 in response to Congressional oversight hearings that revealed Government-wide inadequacies in the management of Federal contracts and assistance with regard to waste, fraud, abuse and poor performance. On the basis of those hearings, and subsequent task force studies conducted by the President's Council on Integrity and Efficiency (PCIE), the Office of Management and Budget developed a comprehensive Government-wide debarment and suspension system for all Federal contracts, assistance, loans and benefits extended by Executive-Branch agencies.

EPA, as an Executive Branch agency, is part of that Government-wide system. In addition to its discretionary authority to debar pursuant the above, it also has mandatory debarment authority under Section 306 of the Clean Air Act, and Section 508 of the Clean Water Act.

As a result of the historical development of the Agency, these various debarment authorities were, in 1982, located in three locations. The statutory debarment was initially administered by various offices, but eventually was delegated to the Office of Enforcement (OE). Procurement debarment was administered by the then, Procurement and Contracts Management Division, while assistance debarment was administered by the Grants Administration Division.

In 1982, the Office of Administration and Resource Management (OARM) consolidated all EPA discretionary procurement and assistance debarment authority into the Grants Administration Division. In the early 1990s, the Agency further consolidated its debarment authority when OARM assumed the responsibilities for statutory debarment from OE. Today, all EPA discretionary and statutory debarment authority is delegated to the Assistant Administrator for OARM and carried out by the Office of Grants and Debarment (OGD).

The EPA Debarring Official is the Agency's national program manager. As such the EPA Debarring Official establishes the Agency's debarment policy, and is the decision official for all suspension and debarment actions before the Agency.

The Suspension and Debarment Division (SDD) interacts with EPA program offices, the Office of the Inspector General, Department of Justice, and with Federal, state and local agencies, to develop matters for consideration by the EPA Debarring Official.

2010-0021996 Shasta County Court


Published on Sunday, October 10, 2010 by Forbes/CNN







  • Regulation Of Surface Water Discharges From Abandoned Mines

    (Water Board "abandoned mine final")

    Iron Mountain Mine
    An example of an extreme application of treatment technology failing to meet
    prescribed numeric effluent limits, is the large Iron Mountain Mine complex (IMM)
    northwest of Redding. Prior to remedial activities, the mine discharged
    approximately 650 pounds of copper and 1,800 pounds of zinc daily into the
    Sacramento River. The site was placed on the National Priorities List and
    remedial activities implemented by the U.S. EPA under the Federal Superfund
    program. Remedial activities have included surface water diversions, waste rock
    disposal, and treatment of the AMD. The treatment facility constructed by U.S.
    EPA uses lime neutralization to precipitate copper, cadmium, and zinc from
    solution and is considered to be the Best Available Technology. Over 200 million
    dollars has been spent on the site with an additional 700 million available for
    future operations of the AMD conveyance and treatment system. The treatment
    plant cost over 30 million to build and O&M costs range between 5 and 7 million
    dollars per year depending on precipitation which affects the generation of AMD.
    The treatment system is designed to treat a maximum of 8,000 gpm during
    extreme storm periods. Unless some other technology is developed in the future,
    treatment will be required for an estimated 2,000 years. Overall discharges of
    metals (copper, zinc and cadmium) to the Sacramento River have been reduced
    by 95 percent. Despite these enormous efforts, the effluent from the treatment
    plant cannot meet water quality objectives for cadmium and zinc, or objectives for
    sulfates, aluminum, iron and other metals. Further, the streams adjacent or
    immediately downstream from IMM, including lower Spring Creek and Bolder
    Creek, will never support a typical aquatic community due to the contribution of
    non-point sources that cannot be controlled. Any aquatic organisms that do live
    in these watercourses are limited to algae and invertebrates that are adapted to a
    low pH and high metal environment. Fish will never exist in these streams.

    Owners of Abandoned Mines Are Not Being Treated Equally
    The SIP and the requirement for numeric effluent limits does not allow for a level
    playing field for all owners of abandoned mines. Similar to the U.S EPA when
    dealing with Superfund sites like IMM, Federal Land Agencies (Forest Service and Bureau of Land Management) claim they can also remediate their sites
    under the Comprehensive Environmental Response, Compensation and Liability
    Act (CERCLA). Under CERCLA, Superfund sites are not required to get an
    NPDES permit or any other permit from the Regional Water Board. In place,
    they can request the State provide them with applicable, relevant and appropriate
    requirements (ARARs). While the SIP and the Basin Plan are considered
    ARARs, if the U.S. EPA under Superfund, believes it is not practical to achieve,
    they can waive the ARAR on an interim basis, a relatively easy process. A
    permanent waiver can also be sought. Even where the ARAR is waived, the
    cleanup can incorporate the BMP approach described above.
    Federal landowners claim the same exemption applies to all federal facilities in
    all cases, whether or not the sites are on the NPL (Superfund list) and whether or
    not any remediation is undergoing or actually planned.2 Thus, many years may
    pass before a Federal Agency will even begin to address a site. Enforcement
    against a Federal Agency for failing to initiate or complete remedial activities at a
    site under these conditions is resource-intensive, legally complex and time
    In contrast, a private owner of an abandoned mine discharging AMD to surface
    waters may be held to the strict standards of the SIP, including impossible to
    meet time schedules and numeric effluent limits. If a numeric effluent limit is
    exceeded, then MMPs are required, rapidly draining the financial resources of
    the private owner attempting to comply with what may be an impossible task.




Also reported as: [1934] A.C. 586

COUNSEL: Sir Thomas Inskip A.-G. (with him Wilfrid Lewis) appeared in support of the view that actual robbery was not an essential element. Sir Leslie Scott K.C. (with him Kenelm Preedy), representing the Secretary of State for the Colonies

SOLICITOR: Treasury Solicitor.

JUDGES: Viscount Sankey L.C., Lord Atkin, Lord Tomlin, Lord Macmillan, and Lord Wright.

DATES: 1934. July 2, 3, 5, 26.

International Law – Piracy jure gentium – Actual Robbery not an essential element.

Actual robbery is not an essential element of the crime of piracy jure gentium. A frustrated attempt to commit a piratical robbery is equally piracy jure gentium.


An Order in Council, made under s. 4 of the Judicial Committee Act, 1833, and dated November 10, 1933, provided: “The question whether actual robbery is an essential element of the crime of piracy jure gentium, or whether a frustrated attempt to commit a piratical robbery is not equally piracy jure gentium, is referred to the Judicial Committee for their hearing and consideration.”

The circumstances in which the Order was made appear from the report of their Lordships.

1934. July 2, 3, 5. Sir Thomas Inskip A.-G. (with him Wilfrid Lewis) appeared in support of the view that actual robbery was not an essential element. [*587]

Sir Leslie Scott K.C. (with him Kenelm Preedy), representing the Secretary of State for the Colonies, contended to the contrary.

In addition to cases mentioned in the report of their Lordships, counsel referred to R. v. Bonnet (1); Reg. v. McGregor (2); In re Tivnan (3); Att.-Gen. for Hong Kong v. Kwok-a-Sing (4); Republic of Bolivia v. Indemnity Mutual Marine Assurance Co., Ld. (5); and, as to the jurisdiction of the Court of the Admiral, to Reg. v. Keyn (6); also to Oppenheim's International Law, 4th ed, vol. i., p. 506, and O. E. D. s.v. “Pirate.”

Lord Macmillan referred to Dole v. New England Mutual Insurance Co. (7); and, as to the relation between international law and municipal law, to Mortensen v. Peters (8) (per Lord Dunedin), on which question counsel referred to The Zamora .(9)

July 26. The report of their Lordships was delivered by

VISCOUNT SANKEY L.C. On January 4, 1931, on the high seas, a number of armed Chinese nationals were cruising in two Chinese junks. They pursued and attacked a cargo junk which was also a Chinese vessel. The master of the cargo junk attempted to escape, and a chase ensued during which the pursuers came within 200 yards of the cargo junk. The chase continued for over half an hour, during which shots were fired by the attacking party, and while it was still proceeding, the steamship Hang Sang approached and subsequently also the steamship Shui Chow. The officers in command of these merchant vessels intervened and through their agency, the pursuers were eventually taken in charge by the Commander of H. M. S. Somme, which had arrived in consequence of a report made by wireless. They were brought as prisoners to Hong Kong and indicted for the crime of piracy. The jury found them guilty subject to the following

(1) (1718) 15 St. Tri. col. 1231, 1234.

(2) (1844) 1 C. & K. 429.

(3) (1864) 5 B. & S. 645, 687.

(4) (1873) L. R. 5 P. C. 179.

(5) [1909] 1 K. B. 785, 796, 802.

(6) (1876) 2 Ex. D. 63.

(7) (1864) 2 Cliff. 394, 417, 418.

(8) (1906) 8 F. (J.) 93, 101.

(9) [1916] 2 A. C. 77, 91, 92. [*588]

question of law: “Whether an accused person may be convicted of piracy in circumstances where no robbery has occurred.” The Full Court of Hong Kong on further consideration came to the conclusion that robbery was necessary be support a conviction of piracy and in the result the accused were acquitted.

The decision of the Hong Kong Court was final and the present proceedings are in no sense an appeal from that Court, whose judgment stands.

Upon November 10, 1933, His Majesty in Council made the following Order: “The question whether actual robbery is an essential element of the crime of piracy jure gentium, or whether a frustrated attempt to commit a piratical robbery is not equally piracy jure gentium, is referred to the Judicial Committee for their hearing and consideration.”

It is to this question that their Lordships have applied themselves, and they think it will be convenient to give their answer at once and then to make some further observations upon the matter.

The answer is as follows: “Actual robbery is not an essential element in the crime of piracy jure gentium. A frustrated attempt to commit a piratical robbery is equally piracy jure gentium.”

In considering such a question, the Board is permitted to consult and act upon a wider range of authority than that which it examines when the question for determination is one of municipal law only. The sources from which international law is derived include treaties between various States, State papers, municipal Acts of Parliament and the decisions of municipal Courts and last, but not least, opinions of jurisconsults or text-book writers. It is a process of inductive reasoning. It must be remembered that in the strict sense international law still has no legislature, no executive and no judiciary, though in a certain sense there is now an international judiciary in the Hague Tribunal and attempts are being made by the League of Nations to draw up codes of international law. Speaking generally, in embarking upon international law, their Lordships are to a great extent [*589] in the realm of opinion, and in estimating the value of opinion it is permissible not only to seek a consensus of views, but to select what appear to be the better views upon the question.

With regard to crimes as defined by international law, that law has no means of trying or punishing them. The recognition of them as constituting crimes, and the trial and punishment of the criminals, are left to the municipal law of each country. But whereas according to international law the criminal jurisdiction of municipal law is ordinarily restricted to crimes committed on its terra firma or territorial waters or its own ships, and to crimes by its own nationals wherever committed, it is also recognized as extending to piracy committed on the high seas by any national on any ship, because a person guilty of such piracy has placed himself beyond the protection of any State. He is no longer a national, but “hostis humani generis” and as such he is justiciable by any State anywhere: Grotius (1583-1645) “De Jure Belli ac Pacis,” vol. 2, cap. 20, § 40.

Their Lordships have been referred to a very large number of Acts of Parliament, decided cases and opinions of jurisconsults or text-book writers, some of which lend colour to the contention that robbery is a necessary ingredient of piracy, others to the opposite contention. Their Lordships do not propose to comment on an of them, but it will be convenient to begin the present discussion by referring to the Act of Henry VIII., cap. 15, in the year 1536, which was entitled “An Act for the punishment of pirates and robbers of the sea.” Before that Act, the jurisdiction over pirates was exercised by the High Court of Admiralty in England and that Court administered the civil law. The civilians, however, had found themselves handicapped by some of their canons of procedure, as for example, that a man could not be found guilty unless he either confessed or was proved guilty by two witnesses. The Act recites the deficiency of the Admiralty jurisdiction in the trial of offences according to the civil law and after referring to “all treasons, felonies, robberies, murders and confederacies hereafter to be committed in or [*590] upon the sea, etc.” (it is not necessary to set out the whole of it), proceeds to enact that all offences committed at sea, etc., shall be tried according to the common law under the King's Commission, to be directed to the Admiralty and others within the realm.

Many of the doubts and difficulties inherent in considering subsequent definitions of piracy are probably due to a misapprehension of that Act. It has been thought, for example, that nothing could be piracy unless it amounted to a felony as distinguished from a misdemeanour, and that, as an attempt to commit a crime was only a disdemeanour at common law, an attempt to commit piracy could not constitute the crime of piracy, because piracy is a felony as distinguished from a misdemeanour. This mistaken idea proceeds upon a misapprehension of the Act. In Coke's (1552-1634) Institutes, part 3, ed. 1809, after a discussion on felonies, robberies, murders and confederacies committed in or upon the sea, it is stated (p. 112) that the statute did not alter the offence of piracy or make the offence felony, but “leaveth the offence as it was before this Act, viz., felony only by the civil law, but giveth a mean of triall by the common law and inflicteth such pains of death as if they had been attainted of any felony etc. done upon the land. But yet the offence is not altered, for in the indictment upon this statute, the offence must be alleged upon the sea; so as this act inflicteth punishment for that which is a felony by the civill law, and no felony whereof the common law taketh knowledge.”

The conception of piracy according to the civil law is expounded by Molloy (1646-1690) “De Jure Maritimo et Navali” or “A Treatise of affairs Maritime and of Commerce.” That book was first published in 1676 and the ninth edition in 1769. Chapter 4 is headed “Of Piracy.” The author defines a pirate as “a sea thief or hostis humani generis who to enrich himself either by surprize or open face sets upon merchants or other traders by sea.” He clearly does not regard piracy as necessarily involving successful robbery or as being inconsistent with an unsuccessful attempt. Thus in para. xiii. he says: “So likewise if a ship shall be assaulted [*591] by pirates and in the attempt the pirates shall be overcome if the captors bring them to the next port and the judge openly rejects the trial, or the captain cannot wait for the judge without certain peril and loss, justice may be done on them by the law of nature, and the same may be there executed by the captors.” Again in para. 14 he puts the case where “a pirate at sea assaults a ship but by force is prevented from entering her” and goes on to distinguish the rule as to accessories at the common law and by the law marine. A somewhat similar definition of a pirate is given by the almost contemporary Italian jurist, Casaregis, who wrote in 1670, and says (“De Commercio,” LXIV 4): “Proprie pirata ille dicitur qui sine patentibus alicujus principis ex propria tantum, ac privata auctoritate per mare discurrit depraedandi causa.” But in certain trials for piracy held in England under the Act of Henry VIII., a narrower definition of piracy seems to have been adopted.

Thus in 1696, the trial R. v. Joseph Dawson (1) took place. The prisoners were indicted for “feloniously and piratically taking and carrying away from persons unknown a certain ship called the Gunsway …. upon the high seas ten leagues from the Cape St. Johns near Surat in the East Indies.” The Court was comprised of Sir Charles Hedges, then judge in the High Court of Admiralty, Lord Chief Justice Holt, Lord Chief Justice Treby, Lord Chief Baron Ward and a number of other judges. Sir Charles Hedges gave the charge to the grand jury. In it he said “now piracy is only a sea-term for robbery, piracy being a robbery committed within the jurisdiction of the Admiralty. If any man be assaulted within that jurisdiction, and his ship or goods violently taken away without legal authority, this is robbery and piracy.”

Dawson's case was described as the sheet-anchor for those who contend that robbery is an ingredient of piracy. It must be remembered, however, that every case must be read secundum subjectam materiam and must be held to refer to the facts under dispute. In Dawson's case, the prisoners had undoubtedly committed robbery in their piratical expeditions. The only function of the Chief Judge was to

(1) (1696) 13 St. Tr. col. 451. [*592]

charge the grand jury and in fact to say to them: “Gentlemen, if you find the prisoners have done these things, then you ought to return a true bill against them.” The same criticism applies to certain charges given to grand juries by Sir Leoline Jenkins (1623-1685) judge of the Admiralty Court (1685): see “Life of Leoline Jenkins,” vol. 1, p. 94. It cannot be suggested that these learned judges were purporting to give an exhaustive definition of piracy, and a moment's reflection will show that a definition of piracy as sea robbery is both too narrow and too wide. Take one example only. Assume a modern liner with its crew and passengers, say of several thousand aboard, under its national flag, and suppose one passenger robbed another. It would be impossible to contend that such a robbery on the high seas was piracy and that the passenger in question had committed an act of piracy when he robbed his fellow passenger, and was therefore liable to the penalty of death. “That is too wide a definition which would embrace all acts of plunder and violence in degree sufficient to constitute piracy simply because done on the high seas. As every crime can be committed at sea, piracy might thus be extended to the whole criminal code. If an act of robbery or murder were committed upon one of the passengers or crew by another in a vessel at sea, the vessel being at the time and continuing under lawful authority and the offender were secured and confined by the master of the vessel to be taken home for trial, this state of things would not authorise seizure and trial by any nation that chose to interfere or within whose limits the offender might afterwards be found”: Dana's Wheaton, p. 193, note 83, quoted in Moore's Digest of International Law (Washington, 1906) Article “Piracy,” p. 953.

But over and above that we are not now in the year 1696, we are now in the year 1934. International law was not crystallized in the 17th century, but is a living and expanding code. In his treatise on international law, the English text-book writer Hall (1835-94) says at p. 25 of his preface to the third edition (1889)(1): “Looking back over the last couple of

(1) Reprinted in 8th ed. 1924. [*593]

centuries we see international law at the close of each fifty years in a more solid position than that which it occupied at the beginning of the period. Progressively it has taken firmer hold, it has extended its sphere of operation, it has ceased to trouble itself about trivial formalities, it has more and more dared to grapple in detail with the fundamental facts in the relations of States. The area within which it reigns beyond dispute has in that time been infinitely enlarged, and it has been greatly enlarged within the memory of living man.” Again another example may be given. A body of international law is growing up with regard to aerial warfare and aerial transport, of which Sir Charles Hedges in 1696 could have had no possible idea.

A definition of piracy which appears to limit the term to robbery on the high seas was put forward by that eminent authority Hale (1609-76), in his “Pleas of the Crown” ed. 1737, cap. 27, p. 305, where he states, “it is out of the question that piracy by the statute is robbery.” It is not surprising that subsequent definitions proceed on these lines.

Hawkins (1673-1746) “Pleas of the Crown” (1716), 7th ed., 1795, vol. 1, defines a pirate rather differently, at p. 267(1), “a pirate is one who, to enrich himself, either by surprise or open force, sets upon merchants or others trading by sea, to spoil them of their goods or treasure.” This does not necessarily import robbing.

Blackstone (1726-80), book IV., p. 71, states, “the offence of piracy, by common law, consists in committing those acts of robbery and depredation upon the high seas which, if committed upon land, would have amounted to felony there.”

East's “Pleas of the Crown” (1803), vol. 2, p. 796, defines the offence of piracy by common law as “committing those acts of robbery and depredation upon the high seas which, if committed upon land, would have amounted to felony there.” This definition would exclude an attempt at piracy, because an attempt to commit a crime is, with certain exceptions, not a felony but a misdemeanour.

Their Lordships were also referred to Scottish text-book

(1) 8th ed. 1824, p. 251. [*594]

writers, including Hume (1757-1838) “Scottish Criminal Law” (1797), and Alison (1792-1867) “Scottish Criminal Law” (1832), where similar definitions are to be found. It is sufficient to say with regard to these English and Scottish writers that, as was to be expected, they followed in some cases almost verbatim the early concept, and the criticism upon them is: (1.) that it is obvious that their definitions were not exhaustive; (2.) that it is equally obvious that there appears to be from time to time a widening of the definition so as to include facts previously not foreseen; (3.) that they may have overlooked the explanation of the statute of Henry VIII. as given by Coke and quoted above, and have thought of piracy as felony according to common law whereas it was felony by civil law.

In “Archbold's Criminal Pleading” (28th ed., 1931) will be found a full conspectus of the various statutes on piracy which have been from time to time passed in this country defining the offence in various ways and creating new forms of offence as coming within the general term piracy. These, however, are immaterial for the purpose of the case, because it must always be remembered that the matter under present discussion is not what is piracy under any municipal Act of any particular country, but what is piracy jure gentium. When it is sought to be contended, as it was in this case, that armed men sailing the seas on board a vessel, without any commission from any State, could attack and kill everybody on board another vessel, sailing under a national flag, without committing the crime of piracy unless they stole, say, an article worth sixpence, their Lordships are almost tempted to say that a little common sense is a valuable quality in the interpretation of international law. This appears to be recognized in the “Digest of the Criminal Law,” by the distinguished writer, Sir James Fitzjames Stephen (1829-94), 7th ed., 1926, p. 102. At the end of the article on piracy it is stated that “it is doubtful whether persons cruising in armed vessels with intent to commit piracies, are pirates or not,” but in a significant footnote, it is added that “the doubt expressed at the end of the article is founded on the [*595] absence of any expressed authority for the affirmative of the proposition and on the absurdity of the negative.”

The Oxford English Dictionary (1909) defines a pirate as “one who robs and plunders on the sea, navigable rivers, etc., or cruises about for that purpose.”

It may now be convenient to turn to American authorities, and first of all Kent (1826). In his Commentaries, I. 183, he calls piracy “robbery, or a forcible depredation on the high seas, without lawful authority, and done animo furandi, and in the spirit and intention of universal hostility.”

Wheaton writing in 1836, Elements Pt. II., cap. 2, para. 15, defines piracy as being the offence of “depredating on the seas, without being authorized by any foreign State, or With commissions from different sovereigns at war with each other.” This enshrines a concept which had prevailed from earliest, times that one of the main ingredients of piracy is an act performed by a person sailing the high seas without the authority or commission of any State. This has been frequently applied in cases where insurgents had taken possession of a vessel belonging to their own country and the question arose what authority they had behind them. See the American case The Ambrose Light .(1) Another instance is the case of the Huascar. In 1877, a revolutionary outbreak occurred at Callao in Peru and the ironclad Huascar, which had been seized by the insurgents, put to sea, stopped British steamers, took a supply of coal from one of them without payment and forcibly took two Peruvian officials from on board another where they were passengers. The British Admiral justly considered the Huascar was a pirate, and attacked her. See Parl. Papers, Peru, No. 1, 1877.

In Moore's “Digest of International Law” (1906), vol. 2, p. 953, a pirate is defined as “one who, without legal authority from any State, attacks a ship with intention to appropriate what belongs to it. The pirate is a sea brigand. He has no right to any flag and is justiciable by all.”

Time fails to deal with all the references to the works of

(1) (1885) 25 Fed. Rep. 408, 435. [*596]

foreign jurists to which their Lordships' attention was directed. It will be sufficient to select a few examples.

Ortolan (1802-1873), a French jurist, and professor at the University of Paris, says (Dip. de la Mer, book 2, ch. 11) “Les pirates sont ceux, qui courrent les mers de leur propre autorité, pour y commettre des actes de déprédation pillant à main armée les navires de toutes les nations.”

Bluntschli (1808-81), a Swiss jurist and a professor at Munich and Heidelberg, published, in 1868, “Le Droit International Codifié,” which, in art. 343, lays down: “Sont considérés comme pirates les navires qui, sans l'autorisation d'une puissance belligérante, cherchent à s'emparer des personnes, à faire du butin (navires et marchandises), ou à anéantir dans un but criminel les biens d'autrui.”

Calvo (1824-1906), an Argentine jurist and Argentine Minister at Berlin, Le Droit International, 3rd ed., vol. 2, p. 285, para. 1134, defines piracy: “Tout vol ou pillage d'un navire ami, toute déprédation, tout acte de violence commis à main armée en pleine mer contre la personne ou les biens d'un étranger, soit en temps de paix, soit en temps de guerre.”

An American case strongly relied upon by those who contend that robbery is an essential ingredient of piracy, is that of the United States v. Smith . (1) Story J. delivered the opinion of the Court and there states “whatever may be the diversity of definitions in other respects, all writers concur in holding that robbery or forcible depredations upon the sea, animo furandi, is piracy.” He would be a bold lawyer to dispute the authority of so great a jurist, but the criticism upon that statement is that the learned judge was considering a case where the prisoners charged had possessed themselves of the vessel, the Irresistible, and had plundered and robbed a Spanish vessel. There was no doubt about the robbery, and though the definition is unimpeachable as far as it goes, it was applied to the facts under consideration and cannot be held to be an exhaustive definition including all acts of piracy. The case, however, is exceptionally valuable because from p. 163-180 of the report it tabulates the opinions of

(1) (1820) 5 Wheat. 153, 161. [*597]

most of the writers on international law up to that time. But with all deference to so great an authority, the remark must be applied to Story J. in 1820 that has already been applied to Sir Charles Hedges in 1696, which is that international law has not become a crystallized code at any time, but is a living and expanding branch of the law.

In a later American decision, United States v. The Malek Adhel (1), “if he wilfully sinks or destroys an innocent merchant ship, without any other object than to gratify his lawless appetite for mischief, it is just as much a piratical aggression, in the sense of the law of nations, and of the Act of Congress, as if he did it solely and exclusively for the sake of plunder, lucri causa. The law looks to it as an act of hostility, and being committed by a vessel not commissioned and engaged in lawful warfare, it treats it as the act of a pirate, and of one who is emphatically hostis humani generis.”

Having thus referred to the two cases, Dawson (1696) and Smith (1820), which are typical of one side of the question, their Lordships will briefly refer to two others from which the opposite conclusion is to be gathered.

It will be observed that both of them are more recent. The first is the decision in the case of the Serhassan Pirates (2), decided in the English High Court of Admiralty by that distinguished judge, Dr. Lushington (1782-1873), in 1845. It was on an application by certain officers for bounty which, under the statute 6 Geo. 4, c. 49, was given to persons who captured pirates, and the learned judge said (it is not necessary to detail all the facts of the case for the purpose of the present opinion) “the question which I have to determine is whether or not the attack which was made upon the British pinnance and the two other boats constituted an act of piracy on the part of these prahns, so as to bring the persons who were on board within the legal denomination of pirates.” He held it was an act of piracy and awarded the statutory bounty. It is true that that was a decision under the special statute under which the bounties were claimed, but it will be noted that there was no robbery in that case; what happened was that

(1) (1844) 2 How. 210, 232.

(2) (1845) 2 W. Rob. 354. [*598]

the pirates attacked, but were themselves beaten off and captured. A similar comment may be made on the case in 1853 of The Magellan Pirates (1), where Dr. Lushington said: “it was never, so far as I am able to find, deemed necessary to inquire whether parties so convicted of these crimes (i.e., robbery and murder), had intended to rob on the high seas, or to murder on the high seas indiscriminately.”

Finally, there is the American case The Ambrose Light (2) where it was decided by a Federal Court that an armed ship must have the authority of a State behind it, and if it has not got such an authority, it is a pirate even though no act of robbery has been committed by it. It is true that the vessel in question was subsequently released on the ground that the Secretary of State had by implication recognized a state of war, but the value of the case lies in the decision of the Court.

Their Lordships have dealt with two decisions by Dr. Lushington. It may here be not inappropriate to refer to another great English Admiralty judge and jurisconsult, Sir Robert Phillimore (1810-85). In his International Law, 3rd ed., vol. 1, 1879, he states: “piracy is an assault upon vessels navigated on the high seas committed animo furandi whether robbery or forcible depredation be effected or not and whether or not it be accompanied by murder or personal injury.”

Lastly, Hall, to whose work on international law reference has already been made, states, on p. 314 of the 8th ed., 1924, “the various acts which are recognized or alleged to be piratical may be classed as follows: robbery or attempt at robbery of a vessel, by force or intimidation, either by way of attack from without, or by way of revolt of the crew and conversion of the vessel and cargo to their own use.” Possibly the definition of piracy which comes nearest to accuracy coupled with brevity is that given by Kenny (1847-1930), “Outlines of Criminal Law,” 14th ed., p. 332, where he says piracy is “any armed violence at sea which is not a lawful act of war,” although even this would include a shooting affray between two passengers on a liner which could not be held to be piracy. It would, however, correctly include those acts which, as far

(1) (1853) 1 Spinks E. & A. 81.

(2) 25 Fed. Rep. 408. [*599]

as their Lordships know, have always been held to be piracy, that is, where the crew or passengers of a vessel on the high seas rise against the captain and officers and seek by armed force to seize the ship. Hall put such a case in the passage just cited; it is clear from his words that it is not less a case of piracy because the attempt fails.

Before leaving the authorities, it is useful to refer to a most valuable treatise on the subject of piracy contained in “The Research into International Law by the Harvard Law School,” published at Cambridge, Mass., in 1932. In it, nearly all the cases, nearly all the statutes, and nearly all the opinions are set out on pp. 749 to 1013.

In 1926 the subject of piracy engaged the attention of the League of Nations, who scheduled it as one of a number of subjects, the regulation of which by international agreement seemed to be desirable and realizable at the present moment. Consequently, they appointed a sub-committee of their committee of experts for the progressive codification of international law and requested the sub-committee to prepare a report upon the question. An account of the proceedings is contained in the League of Nations document, C 196, M 70, 1927 V. The sub-committee was presided over by the Japanese jurist Mr. Matsuda, the Japanese Ambassador in Rome, and in their report at p. 116, they state: “according to international law, piracy consists in sailing the seas for private ends without authorization from the government of any State with the object of committing depredations upon property or acts of violence against persons.” The report was submitted to a number of nations and an analysis of their replies will be found at p. 273 of the League of Nations document. A number of States recognized the possibility and desirability of an international convention on the question. The replies of Spain, p. 154; of Greece, p. 168; and especially of Roumania, p. 208, deal at some length with the definition of piracy. Roumania adds, p. 208: “Mr. Matsuda maintains in his report that it is not necessary to premise explicitly the existence of a desire for gain, because the desire for gain is contained in the larger qualification ‘for private ends.' In [*600] our view, the act of taking for private ends does not necessarily mean that the attack is inspired by the desire for gain. It is quite possible to attack without authorization from any State and for private ends, not with a desire for gain but for vengeance or for anarchistic or other ends.” The above definition does not in terms deal with an armed rising of the crew or passengers with the object of seizing the ship on the high seas.

However that may be, their Lordships do not themselves propose to hazard a definition of piracy. They remember the words of M. Portalis, one of Napoleon's commissioners, who said: “We have guarded against the dangerous ambition of wishing to regulate and to foresee everything. …. A new question springs up. Then how is it to be decided? To this question it is replied that the office of the law is to fix by enlarged rules the general maxims of right and wrong, to establish firm principles fruitful in consequences, and not to descend to the detail of all questions which may arise upon each particular topic.” (Quoted by Halsbury L.C. in Halsbury's Laws of England, Introduction, p. ccxi.)

A careful examination of the subject shows a gradual widening of the earlier definition of piracy to bring it from time to time more in consonance with situations either not thought of or not in existence when the older jurisconsults were expressing their opinions.

All that their Lordships propose to do is to answer the question put to them, and having examined all the various cases, all the various statutes and all the opinions of the various jurisconsults cited to them, they have come to the conclusion that the better view and the proper answer to give to the question addressed to them is that stated at the beginning – namely, that actual robbery is not an essential element in the crime of piracy jure gentium, and that a frustrated attempt to commit piratical robbery is equally piracy jure gentium.

“When extraction of the ore was suspended from the various stopes above the Lawson, the ground was invery bad shape, and the condition as regards heat andgas were so terrible that it seemed advisible to abandon any attempt to work from that level. In fact it was a case of walking away and leaving the job for the next generation”WM.F. Kett, General Manager August 23, 1944


The following guest post was written by Michael D. Shaw, Executive Vice President of Interscan Corporation , and was originally posted on HealthNewsDigest.com .

When EPA was founded in December of 1970, there was no shortage of serious environmental issues to tackle. Water pollution was symbolized by taconite tailings being dumped into Lake Superior in Silver Bay, MN, and the travesty of fires on Ohio's Cuyahoga River—the most notable of which occurred on June 22, 1969. Air pollution was widespread, and many people remembered the killer smog that occurred in London in 1952, as well a stateside version in Donora, PA four years earlier.

No doubt, remarkable progress has been made in cleaning up the environment, and EPA deserves the lion's share of the credit.

However, within the very DNA of the agency is a strong dose of chemophobia. Even though the "science" in Rachel Carson's Silent Spring has been thoroughly debunked, her work is still cited with great reverence on EPA's website in "The Birth of EPA." Sadly, the tortured thoughts of Carson, an embittered woman dying of breast cancer, would have been just that, until the agency banned DDT.

Cold comfort to the millions of Africans—who died from malaria as a direct result of this—that it is becoming increasingly difficult to find someone who still thinks the banning was a good idea.

It is important to note that cold, calculated politics in the main reason for anything any government entity ever does. If there actually is any altruism, it occurs by accident. Perhaps EPA was Richard Nixon's attempt to prove his Green bona fides. At any rate, in 1970, there was plenty of legitimate work to be done.

The trouble is that by 1985 or thereabouts, most of the big problems were taken care of. But no federal agency ever disappears. Instead, the mission is expanded. With most of the obvious dragons slain, EPA could now focus on the much more murky world of potential problems, and would gradually increase its activities under the Toxic Substances Control Act (TSCA) of 1976.

The newest trend under TSCA—announced by EPA Administrator Lisa Jackson on December 30, 2009—is the so-called Chemical Action Plan (CAP). Lynn Bergeson, a well-known DC-based attorney specializing in regulatory issues, commented at the time:
This EPA initiative announces actions that are almost breathtaking in scope, and its development and implementation of the action plan items will set a number of new precedents—and possibly shape future legislative proposals—that industry will need to participate in and monitor closely. EPA has never previously announced so many actions under TSCA, nor has it ever cited use of Section 6 [of TSCA] so widely. Moreover, that it was issued in this form after being reviewed by the Office of Management and Budget is significant and portends potentially great and largely unfettered EPA activity in the months to come.
Unfettered, indeed. With no congressional oversight, scant accountability, and the less-than-transparent manner in which chemicals are chosen for CAP treatment, many are concerned about the consequences—unintended or otherwise.

On March 17, 2010, EPA announced that it was working on CAPs for several more chemicals, including siloxanes—a class of organosilicon compounds that is used in deodorants, soaps, windshield coatings, and sundry cosmetic and automotive products. Significantly, there are medical applications, as well.

Siloxanes are found in intravenous drug delivery systems, prostheses, pacemakers, dental molds, wound dressings, respirator bags, medical adhesives, and contact lenses. These compounds are relied upon in scar treatment and cosmetic and ophthalmic surgery. Even hypodermic needles are coated with siloxanes to reduce pain, making them of considerable value to children and diabetics.

You might ask why EPA is concerned about a class of compounds that has been utilized with apparent safety for decades. Good question. Let's call it a perversion of the scientific method. The classic scientific method first requires an observation. Then, and only then, a hypothesis is suggested to explain this observation, and this hypothesis is tested by an experiment. If the hypothesis is verified by this experiment, it must be repeated by others, until its truth is accepted by the scientific community.

Back in the day, carcinogenic chemicals were determined to be such after people had observed an unusually high incidence of a particular cancer in the cohort of interest. Then, animal studies were done to verify the hypothesis.

Now, though, things have changed. Far too many "scientists," who are really little more than technicians, can achieve lifetime job security by picking some chemical—especially one that is in wide commercial use—and give outrageous doses of it to a rodent. If an effect is observed, then "further study is warranted" and the chemical is put on the bad list. It matters not in the least that empirically, in actual human experience, there have been no observable ill effects.

This is not science at all. Rather, it is fear entrepreneurialism writ large—the economic impact of which can hardly be overstated.

Fortunately, Congress is currently considering legislation to reform TSCA, and by inference, EPA. Let's hope this can occur before siloxanes and other safe and important chemicals become stigmatized or banned.




Exceptions to the Normal NPDES/WDR System
Most owners or operators of facilities that discharge waste into a municipal sanitary sewer system need not obtain an NPDES permit. The United States Environmental Protection Agency (USEPA), the SWRCB, and the respective RWQCB or the local wastewater management agency may require some industries to treat industrial wastes before such wastes are discharged to a municipal sanitary sewer system. The local wastewater management agency advises industries of these requirements.

Stormwater runoff is regulated in certain jurisdictions by programs administered by either the RWQCB or local agencies. These two parallel structures address runoff from urban areas, manufacturing operations and construction sites. Contact the RWQCB for your area to determine if you need to apply and to which agency.

For more information, see

Fees and Fines
Applicants pay a fee to the RWQCB with the permit application. This fee also serves as the first annual fee. The RWQCB determines the fee to be submitted with the application and the annual fee to be paid thereafter if the permit is issued.

After the permit is issued, a discharger must pay a fee annually to the SWRCB.

The "rating" criteria to determine fees is based on the threat to water quality and the complexity of the applicant's proposed discharge. The impacts on water quality can be measured and rated from long-term loss of a designated beneficial use of the receiving water to minor discharges that could degrade water quality without violating water quality objectives, or cause a minor impairment of designated beneficial uses.

The complexity of the proposed discharge can range from those involving hazardous wastes/materials or multiple discharge points to those having passive treatment and disposal systems, such as septic systems with subsurface disposal systems, or dischargers having waste storage systems with land disposal.

The SWRCB or the RWQCB may require the discharger to discontinue the discharge if the conditions of the permit requirements was violated or misrepresented. Either agency may either assess civil liability up to $10,000 per day or go to court to seek fines of up to $25,000 per day for violations of the discharge requirements or up to $50,000 per day for willful or intentional violations.


Energy & Environment

"Each of us has a part to play in a new future that will benefit all of us. As we recover from this recession, the transition to clean energy has the potential to grow our economy and create millions of jobs -– but only if we accelerate that transition. Only if we seize the moment. And only if we rally together and act as one nation –- workers and entrepreneurs; scientists and citizens; the public and private sectors."

- President Obama, June 15, 2010

A Promise of Environmental Justice for All Americans

Last week, the Obama Administration hosted a first of its kind event – a White House forum to give a national voice to under-represented American communities that shoulder a disproportionate amount of pollution.  Environmental justice is a concept that began decades ago.  It's a movement that argues that every American, regardless of income level or minority status, deserves strong Federal protection from environmental and health hazards.


"both our financial system and the economy as a whole continue to show signs of significant damage.

... many families are still struggling to regain financial security. And although many businesses are growing again, others, particularly, small businesses, continue to encounter difficulties accessing credit."

-Timothy Geithner










1928 California Constitution amended to prohibit waste of water and to require reasonable beneficial use.

The Colorado Supreme Court, in a 1967 case involving injury caused by a State fish hatchery, said:

 Where there is no power on the part of a State agency to condemn private property for a claimed public use, a property owner whose property has been damaged by such agency cannot be held to have commenced an action for "inverse condemnation" in a situation where no right exists in a governmental agency to proceed under eminent domain. The plaintiffs, in demanding relief in the form of damages covering the loss sustained by them, are not forced to accept the measure of damages usually applicable to a condemnation case.


Where, as distinguished from the performance of ministerial acts, discharge of the duties of an adminstrative agency calls for the exercise of discretion or judgment, mandamus is not an instrument for correcting or reviewing the exercise of such discretion unless it is shown that the action was arbitrary or capricious or prompted by wrong motives; or, as is sometimes stated, mandamus does not lie to control discretion of an administrative agency in the absence of caprice, passion, partiality, fraud, some ulterior motive, arbitrary conduct, or misapprehension of the law. Mandamus is not an appropriate process to obtain a review of an order entered by an agency acting within its jurisdiction, and the remedy by mandamus requires a plain duty and a clear legal right.

Pueblo Water Rights

No method by which the pueblo water right can be lost to the municipality that succeeded a primitive Spanish or Mexican pueblo has yet been declared by the high court of California.

On the contrary, the California Supreme Court has specifically ruled out some suggested ways in which the pueblo water right might be lost or impaired. These include nonuse and statutory forfeiture. In no case in which abandonment of a pueblo right or its loss by prescription or estoppel was alleged has any loss of water right been decreed.

In a 1902 California case, claimants under a grant of part of a riparian tract of land which granted enough water to operate a hydraulic ram, contended that all rights under the reservation had been lost by abandonment and adverse use. The fact that the grantor's successor in interest abandoned the use of the hydraulic ram in favor of other means of use was not deemed material by the supreme court, because his right to the use of the water did not cease when he ceased to operate the ram. "As a riparian owner he is not bound to use the water, or, in case of non-user, lose his right to use"

In commenting upon the doctrine of prior appropriation, and its recognition by Congress, Mr. Justice Field, delivering the opinion of the Court, said :

" By the custom which has obtained among miners in the Pacific States and Territories, where mining for the precious metals is had on the public lands of the United States, the first appropriator of mines, whether in placers, veins, or lodes, or of waters in the streams, on such lands for mining purposes, is held to have a better right than others to work the mines or use the waters. The first appropriator who subjects the property to use, or takes the necessary steps for that purpose, is regarded, except as against the Government, as the source of title in all controversies relating to the property. As respects the use of water for mining purposes, the doctrines of the common law, declaratory of the rights of riparian owners, were, at an early day after the discovery of gold, found to be inapplicable, or applicable only in a very limited extent, to the necessities of miners, and inadequate to their protection. By the common law, the riparian owner, on a stream not navigable, takes the land to the center of the stream, and such owner has the right to the use of the water flowing over the land as an incident to his estate. And, as all such owners on the same stream have an equality of right to the use of the water as it naturally flows in quality, and without diminution in quantity, except so far as such diminution may be created by a reasonable use of the water for certain domestic, agricultural, or manufacturing purposes, there could not be, according to that law, any such diversion or use of the water by one owner as would work material detriment to any other owner below him. 1 Nor could the water by one owner be so retarded in its flow as to be thrown back to the injury of another owner above him. ' It is wholly immaterial,' says Mr. Justice Story, in Tyler v. Wilkinson, 1 k whether the party be a proprietor above or below in the course of the river: the right being common to all the proprietors on the river, no one has a right to diminish the quantity which will, according to the natural current, flow to the proprietor below, or to throw it back upon a proprietor above. This is a necessary result of the perfect equality of right among all the proprietors of that which is common to all.' ' Every proprietor of lands on the banks of a river,' says Kent, ' has naturally an equal right to the use of the water which flows in the stream, adjacent to his lands, as it was wont to run (currere solebat) without diminution or alteration. No proprietor has a right to use the water to the prejudice of other proprietors above or below him, unless he has a prior right to divert it, or a title to some exclusive enjoyment. He has no property in the water itself, but a simple usufruct while it passes along. Aqua currit et debet currere ut currere solebat. Though he may use the water while it runs over his land, as an incident to the land, he cannot unreasonably detain it or give it

14 Mason, 370.

another direction, and he must return it to its ordinary channel when it leaves his estate. Without the consent of the adjoining proprietors, he cannot divert or diminish the quantity of the water which would otherwise descend to the proprietors below, nor throw the water back upon the proprietors above, without a grant or an uninterrupted enjoyment of twenty years, which is evidence of it. This is the clear and settled doctrine on the subject, and all the difficulty which arises consists in the application.' 1

" This equality of right among all the proprietors on the same stream would have been incompatible with any extended diversion of the water by one proprietor, and its conveyance for mining purposes to points from which it could not be restored to the stream. But the Government being the sole proprietor of all the public lands, whether bordering on streams or otherwise, there was no occasion for the application of the commonlaw doctrine of riparian proprietorship with respect to the waters of those streams.

" The Government, by its silent acquiescence, assented to the general occupation of the public lands for mining ; and, to encourage their free and unlimited usclfor that purpose, reserved such lands as were mineral from sale and the acquisition of title by settlement. And he who first connects his own labor with property thus situated and open to general exploration, does, in natural justice, acquire a better right to its use and enjoyment than others who have not given such labor. So the miners on the public lands throughout the Pacific States and Territories, by their customs, usages, and regulations, everywhere recognize the inherent justice of this principle; and the principle itself was at an early period recognized by legislation, and enforced by the Courts in those States and Territories. In Irwin v. Phillips, 2 a case decided by the Supreme Court of California, in January, 1855, this subject was considered. After stating that a system of rules had been permitted to grow up with respect to mining on the public lands by voluntary action and assent of the population, whose free and unrestrained occupation of the mineral region had been tacitly assented to by the Federal Govern

1 3 Kent's Commentaries, »439. a 5 Cal. 140.

ment, and heartily encouraged by the expressed legislative policy of the State, the Court said: ' If there are, as must be admitted, many things connected with this system which are crude and undigested, and subject to fluctuation and dispute, there are still some which a universal sense of necessity and propriety have so firmly fixed as that they have come to be looked upon as having the force and effect of res adjudicata. Among these the most important are the rights of miners to be protected in their selected localities, and the rights of those who, by prior appropriation, have taken the waters from their natural beds, and by costly artificial works have conducted them for miles over mountains and ravines to supply the necessities of gold diggers, and without which the most important interests of the mineral region would remain without development. So fully recognized have become these rights, that without any specific legislation conferring or confirming them, they are alluded to and spoken of in various acts of the legislature in the same manner as if they were rights which had been vested by the most distinct expression of the will of the law-makers.'

" This doctrine of right by prior appropriation was recognized by the legislation of Congress, in 1866." 1

The limitation of the doctrine of prior appropriation and the restrictions as to reasonable use, were touched upon as follows:

"The right to water by prior appropriation, thus recognized and established as the law of miners on the mineral lands of the public domain, is limited in every case, in quantity and quality, by the uses for which the appropriation is made. A different use of the water subsequently does not affect the right; that is subject to the same limitations, whatever the use. The appropriation does not confer such an absolute right to the body of the water diverted, that the owner can allow it, after its diversion, to run to waste, and prevent others from using it for mining or other legitimate purposes; nor does it confer such a right that he can insist upon the flow of the water without deterioration in quality, where such deterioration does not defeat nor impair the uses to which the water is applied.

" Such was the purport of the ruling of the Supreme Court

i Atchison v. Peterson, 20 Wall. U. S. 510.

of California, in Butte Canal and Ditch Company r. Vaughn, 1 where it was held that the first appropriator had only the right to insist that the water should be subject to his use and enjoyment to the extent of his original appropriation, and that its quality should not be impaired so as to defeat the purpose of that appropriation. To this extent, said the Court, his rights go, and no further; and that in subordination to them, subsequent appropriators may use the channel and waters of the stream, and mingle with its waters other waters, and divert them as often as they choose ; that whilst enjoying his original rights, the first appropriator had no cause of complaint. In the subsequent case of Ortman v. Dixon, 2 the same Court held, to the same purport, that the measure of the right of the first appropriator of the water as to extent follows the nature of the appropriation or the uses for which it is taken.

" What diminution of quantity or deterioration in quality will constitute an invasion of the rights of the first appropriator will depend upon the special circumstances of each case, considered with reference to the uses to which the water is applied. A slight deterioration in quality might render the water unfit for drink or domestic purposes, whilst it would not sensibly impair its value for mining or irrigation. In all controversies, therefore, between him and parties subsequently claiming the water, the question for determination is necessarily whether his use and enjoyment of the water to the extent of his original appropriation have been impaired by the acts of the defendant. 3

But whether, upon a petition or bill asserting that his prior rights have been thus invaded, a Court of Equity will interfere to restrain the acts of the party complained of, will depend upon the character and extent of the injury alleged, whether it be irremediable in its nature, whether an action at law would afford adequate remedy, whether the parties are able to respond for the damages resulting from the injury, and other considerations which ordinarily govern a Court of Equity in the exercise of its preventive process of injunction." 4

1 11 Cal. 143.

2 13 Cal. 33. See, also, Lobdell v. Simpson, 2 Nev. 274.

8 See, to the samo effect, Hill v. Smith, 27 Cal. 483; Yale's Mining Claims, 194. * Atchison v. Peterson, 20 Wall. U. S. 514.

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§ 210. Effect of the statute upon prior appropriation without Government title.—This phase of the subject has been considered in a late case in the Supreme Court of the United States. A review of that case will constitute the most authoritative exposition of the law of the subject. The question on the merits in the case was, whether a right to running waters on the public land of the United States, for the purposes of irrigation, can be acquired by prior appropriation, as against parties not having the title of the Government. The Court said: " Neither party has any title from the United States; no question as to the rights of the riparian proprietors can, therefore, arise. It will be time enough to consider those rights when either of the parties has obtained the patent of the Government. At present, both parties stand upon the same footing: neither can allege that the other is a trespasser against the Government without at the same time invalidating his own claim.

" In the late case of Atchison v. Peterson, 1 we had occasion to consider the respective rights of miners to running waters on mineral lands of the public domain ; and we there held, that by the custom which had obtained among miners in the Pacific States and Territories, the party who first subjected the water to use, or took the necessary steps for that purpose, was regarded, except as against the Government, as the source of title in all controversies respecting it; that the doctrines of the common law declaratory of the rights of riparian proprietors were inapplicable, or applicable only to a limited extent, to the necessities of miners, and were inadequate to their protection; that the equality of right recognized by that law among all the proprietors upon the same stream, would have been incompatible with any extended diversion of the water by one proprietor, and its conveyance for mining purposes to points from which it could not be restored to the stream; that the Government by its silent acquiescence had assented to, and encouraged, the occupation of the public lands for mining, and that he who first connected his labor with property thus situated and open to general exploration, did in natural justice acquire a better right to its use and enjoyment than others who had not given such labor; that the miners on the public lands throughout the Pacific States and Territories, by their customs, usages, and regulations, had recognized the inherent justice of this principle, and the principle itself was, at an early period, recognized by legislation, and enforced by the Courts in those States and Territories, and was finally approved by the legislation of Congress in 1866. The views there expressed, and the rulings made, are equally applicable to the use of water on the public lands for purposes of irrigation. No distinction is made in those States and Territories, by the customs of miners or settlers, or by the Courts, in the rights of the first appropriator from the use made of the water, if the use be a beneficial one."

" In the case of Tartar v. The Spring Creek Water and Mining Company, decided in 1855, the Supreme Court of Califor nia said: ' The current of decisions of this Court goes to establish that the policy of this State, as derived from her legislation, is to permit settlers in all capacities to occupy the public lands, and by such occupation to acquire the right of undisturbed enjoyment against all the world but the true owner. In evidence of this, acts have been passed to protect the possession of agricultural lands acquired by mere occupancy; to license miners; to provide for the recovery of mining claims; recognizing canals and ditches which were known to divert the water of streams from their natural channels for mining purposes; and others of like character. This policy has been extended equally to all pursuits, and no partiality for one over another has been evinced, except in the single case where the rights of the agriculturist are made to yield to those of the miner where gold is discovered in his land. The policy of the exception is obvious. Without it the entire gold region might have been inclosed in large tracts, under the pretense of agriculture and grazing, and eventually what would have sufficed as a rich bounty to many thousands would be reduced to the proprietorship of a few. Aside from this, the legislation and decisions have been uniform in awarding the right of peaceable enjoyment to the first occupant, either of the land or of anything incident to the land.' 1

i 8 Cal. 397.

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" Ever since that decision, it has been held, generally throughout the Pacific States and Territories, that the right to water by prior appropriation for any beneficial purpose is entitled to protection. Water is diverted to propel machinery in flour-mills and saw-mills, and to irrigate land for cultivation, as well as to enable miners to work their mining claims; and in all such cases the right of the first appropriator, exercised within reasonable limits, is respected and enforced. We say within reasonable limits, for this right to water, like the right by prior occupancy to mining ground or agricultural land, is not unrestricted. It must be exercised with reference to the general condition of the country and the necessities of the people, and not so as to deprive a whole neighborhood or community of its use, and vest an absolute monopoly in a single individual. The Act of Congress of 1866 recognizes the right to water by prior appropriation for agricultural and manufacturing purposes, as well as for mining." 1

"It is very evident that Congress intended, although the language used is not happy, to recognize as valid the customary law with respect to the use of water, which had grown up among the occupants of the public land under the peculiar necessities of their condition; and that law may be shown by evidence of the local customs, or by the legislation of the State or Territory, or the decision of the Courts. The union of the three conditions in any particular case is not essential to the perfection of the right by priority ; and in case of conflict between a local custom and a statutory regulation, the latter, as of superior authority, must necessarily control." 2

Several decisions of the Supreme Court of Montana have been cited to us, recognizing the right by prior appropriation to water for purposes of mining on the public lands of the United States; and there is no solid reason for upholding the right when the water is thus used, which does not apply with the same force when the water is sought on those lands for any other equally beneficial purpose. In Thorp v. Freed, 8 the

iBasey v. Gallagher, 20 Wall. TJ. S. 681; S. C. 1 Montana, 457; Woolman v. Garringer, 1 Montana, 53S. 'Ibid. 083; Ibid. < 1 Montana, 6S2,66S.

subject was very ably discussed by two of the justices of that Court, who differed in opinion upon the question in that case, where both parties had acquired the title of the Government. The disagreement would seem to have arisen in the application of the doctrine to a case where title had passed from the Government, and not in its application to a case where neither party had acquired that title. In the course of his opinion, Mr. Justice Knowles stated that ever since the settlement of the Territory it had been the custom of those who had settled themselves upon the public domain and devoted any part thereof to the purposes of agriculture, to dig ditches and turn out the water of some stream to irrigate the same ; that this right had been generally recognized by the people of the Territory, and had been universally conceded as a necessity of agricultural jmrsuits. " So universal," added the justice, " has been this usage, that I do not suppose there has been a parcel of land to the extent of one acre, cultivated within the bounds of this Territory, that has not been irrigated by water diverted from some mining stream.

" We are satisfied that the right claimed by the plaintiffs is one which, under the customs, laws, and decisions of the Courts of the Territory, and the act of Congress, should be recognized and protected." 1

In the case of Basey v. Gallagher, it was, as we have seen, decided, that a right to running waters on the public lands of the United States, for purposes of irrigation, could be acquired by prior appropriation, as against parties not having the title of the Government. 2

This doctrine was followed in Barnes v. Sabron, 10 Nevada, 230, which was an action to recover damages for the diversion of water. It was there held that the first appropriator of the water of a stream running through the public lands has the right to insist that the water flowing therein shall, during the irrigating season, be subject to his reasonable use and enjoyment, to the full extent of his original appropriation and beneficial use. But his rights go no further; for in subordination to such rights

i Basey v. Gallagher, 20 Wall. G85; S. C. 1 Montana, 457; Woolman v. Garringer, 1 Montana, 535. a 20 Wall. U. S. S. C. 1 Montana.

subsequent appropriators may take the balance of the water remaining in the stream. The first appropriator is only entitled to as much water as is necessary to irrigate his land, and is bound to make a reasonable use of it, and what is a reasonable use depends upon the circumstances of each case. The Court said : " The doctrine that the fir&t appropriator has the superior right, ' where the right to the use of running water is based upon appropriation, and not upon ownership in the soil,' has been recognized and acknowledged by the decisions of this Court in Lobdell v. Simpson, 2 Nev. 274, and the Ophir S. M. Co. v. Carpenter et al., 4 Nev. 534.

" The facts of this case do not call in question the correctness of the decision in Vansickle v. Haines, 7 Nev. 249, where the title to the land had been obtained from the Government prior to the acts of Congress herein referred to.

" It logically follows, from the legal principles we have announced, that the plaintiff, as the first appropriator of the waters of Currant Creek, has the right to insist that the water flowing therein shall, during the irrigating season, be subject to his reasonable use and enjoyment to the full extent of his original appropriation and beneficial use. To this extent his rights go, but no further; for, in subordination to such rights, the defendants, in the order and to the extent of their original appropriation and use, had the unquestionable right to appropriate the remainder of the water running in said stream. (The Butte Canal and Ditch Co. v. Vaughn, 11 Cal. 143; The Nevada Water Co. v. Powell et al., 34 Cal. 109.)

" In 1870, Congress amended the Act of 1866, and provided: ' That none of the rights conferred by sections five, eight, and nine of the act to which this act is amendatory shall be abrogated by this act, and the same are hereby extended to all public lands affected by this act; and all patents granted, or pre-emption or homesteads allowed, shall be subject to any vested and accrued water rights, or rights to ditches and reservoirs, used in connection with such water rights, as may have been acquired under or recognized by the ninth section of the act of which this act is amendatory.' (16 U. S. Stats. 218, Sec. 17.) The certificate of plaintiff from the State and the patent of Sabron must, under the provisions of this law, be held subject to such vested and accrued water rights as were acquired by the respective parties under the ninth section of the Act of 1866."

Emphatically saying what the law is, terminating the national emergency;

reforming legislation, abolishing holistic accounting & jurisprudence.

In all actions upon the case and other pleadings, wherein the party claiming may now by law allege his right generally, without averring the existence of such right from time immemorial, such general allegation shall still be sufficient, and if the same shall be denied, all the matters in the act mentioned and provided, applicable to the case, shall be admissible in evidence to sustain or rebut such allegation; and in all pleadings to actions of trespass, and in all other pleadings wherein before the act it would have been necessary to allege the right to have existed from time immemorial, it shall be sufficient to allege the enjoyment thereof as of right by the occupiers of the tenement in respect whereof the same is claimed for such of the periods mentioned in the act as may be applicable to the case, and without claiming in the name or right of the owner of the fee, as is now usually done ; and if the other party shall intend to rely on any proviso, exception, incapacity, disability, contract, agreement, or other matter therein-before mentioned, or on any cause or matter of fact or of law not inconsistent with the simple fact of enjoyment, the same shall be specially alleged and set forth in answer to the allegation of the party claiming, and shall not be received in evidence on any general traverse or denial of such allegation.


Water Rights Laws in the Nineteen Western States

By Wells A. Hutchins


Transactions of the American Fisheries Society 1941

Red Bluff Diversion Dam, a concrete gated weir structure 52 feet high and 5,985 feet long, including earth wings, is on the Sacramento River about 2 miles southeast of Red Bluff, California. It diverts water from the Sacramento River to the Corning and Tehama-Colusa Canals. Work began on the dam in 1962 and it was completed on August 9, 1964. The diversion capacity of the first sections of the two canals totaled 3,030 cubic feet per second.

The population of winter-run chinook salmon at Red Bluff Diversion Dam peaked in 1969, numbering about 118,000. After 1969, the populations of migratory salmon and steelhead trout on the Sacramento steadily declined and eventually dropped to less than 5 percent of the 1969 total.

To consider the judges as the ultimate arbiters of all constitutional questions is a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy. Our judges are as honest as other men and not more so. They have with others the same passions for party, for power, and the privilege of their corps. Their maxim is boni judicis est ampliare jurisdictionem [good justice is broad jurisdiction], and their power the more dangerous as they are in office for life and not responsible, as the other functionaries are, to the elective control. The Constitution has erected no such single tribunal, knowing that to whatever hands confided, with the corruptions of time and party, its members would become despots. It has more wisely made all the departments co-equal and co-sovereign within themselves. - THOMAS JEFFERSON

And it's hard not to run the numbers and figure that the restored spawning runs on Battle Creek, which scientists estimate will produce just under 10,000 fish a year, will be extraordinarily expensive — more than 8,000 bucks per expected new salmon and steelhead.

If it be said that the legislative body are themselves the constitutional judges of their own powers, and that the construction they put upon them is conclusive upon the other departments, it may be answered, that this cannot be the natural presumption, where it is not to be collected from any particular provisions in the Constitution. It is not otherwise to be supposed, that the Constitution could intend to enable the representatives of the people to substitute their will to that of their constituents. It is far more rational to suppose, that the courts were designed to be an intermediate body between the people and the legislature, in order, among other things, to keep the latter within the limits assigned to their authority. The interpretation of the laws is the proper and peculiar province of the courts. A constitution is, in fact, and must be regarded by the judges, as a fundamental law. It, therefore, belongs to them to ascertain its meaning, as well as the meaning of any particular act proceeding from the legislative body. If there should happen to be an irreconcilable variance between the two, that which has the superior obligation and validity ought, of course, to be preferred; or, in other words, the Constitution ought to be preferred to the statute, the intention of the people to the intention of their agents. - ALEXANDER HAMILTON, Federalist 78

Water Surge

Hydropower, once shunned because of environmental concerns, is making a comeback


LEADVILLE, Colo.—The giant pipes wheeze and rumble, the whoosh of water coursing through them as noisy as a freeway. The Mount Elbert hydropower plant high in the Rocky Mountains isn't much to look at—or listen to. But to true believers, it's a road map to a greener future.

Hydropower, shunned just a few years ago as an environmental scourge, is experiencing a remarkable resurgence in the U.S. Dams are still viewed warily; in fact, Congress is considering dismantling four hydroelectric dams blamed for depleting salmon in the Klamath River basin in southern Oregon and northern California.

But engineers and entrepreneurs are pressing an alternative view of hydropower that doesn't involve new dams. They argue that plenty of efficient, economical energy can be wrung from other water resources, including ocean waves, free-flowing rivers, irrigation ditches—even the effluent discharged from wastewater treatment facilities.

There's a surge of interest, too, in adding small power plants to dams built years ago for flood control or navigation—as well as in turning reservoirs into battery packs of sorts, releasing energy when the grid needs it most.

Globally, hydropower provides 16% of electricity, slightly more than nuclear power and closing in on natural gas, according to the London-based International Hydropower Association.

In the U.S., by contrast, hydropower now provides about 7% of electricity generation. All other renewable sources combined account for about 3%.

Even without building large dams, expanding efforts to draw power from water could add 40,000 megawatts to the grid by 2025, says the Electric Power Research Institute, a nonprofit research firm in Palo Alto, Calif. That's the equivalent of putting at least two dozen new nuclear power plants online.

Pouring It On

Such estimates are stirring action. The U.S. Department of Energy spent nothing on hydropower research as recently as 2007 but allocated $50 million this year. The Federal Energy Regulatory Commission issued 50 preliminary permits for small hydro projects last year, up from 15 in 2007. At least two dozen states have mandated that utilities draw more power from renewable sources—and many include small hydropower as an option, along with wind and solar. Colorado Gov. Bill Ritter recently announced an agreement between his state and the federal government that will streamline the permitting process for developing small hydropower projects in Colorado.

The Department of Energy estimates a new hydro project in 2016 would generate power at a cost of $120 per megawatt-hour. By contrast, the cost per megawatt-hour would be $150 at a wind farm going online that year and nearly $400 at a photovoltaic solar array. (Those figures don't take into account various tax incentives meant to offset the cost of renewable energy, especially wind and solar.)

Hydro also has technical advantages over other renewables. Daily water flow in many areas is far more predictable than wind or sunshine. It's relatively easy to store the energy pent up in water so it can be released when the grid needs it most. And certain types of hydro plants can rev up from low power to full capacity within seconds.

"There remains tremendous untapped potential in North America," says Don Erpenbeck, a vice president at MWH, a global hydropower construction and engineering firm in Broomfield, Colo. "After decades of delay, we are starting to realize that potential."

But Mr. Erpenbeck adds that years-long waits for federal permits and high capital costs make hydropower a tough sell to some utilities and investors. Maximizing water energy in the U.S., he says, "is going to take some guts."

Countries such as Brazil and China remain committed to large hydroelectric dams and are forging ahead with big projects. Yet they are also looking at smaller solutions favored by environmentalists. The International Hydropower Association estimates that North America has developed nearly 70% of its available hydropower resources and Europe 75%. But the group sees huge potential in South America, Asia and especially Africa, where just 7% of resources have been developed.

Dam Smart

In the U.S., one strategy gaining popularity is to add power plants to some of the 80,000 existing dams that don't have hydroelectric capacity. Technological advances like turbines that are gentler on fish and oxygen-injection systems that help balance aquatic ecosystems have won favor even among some environmental groups.

In one such project, American Municipal Power Inc. is spending $2 billion to add power plants to three dams on the Ohio River and invest in additional hydropower elsewhere.

The utility's CEO, Marc Gerken, says the new hydropower will cost more initially than coal or natural gas. But after the construction costs are