In 1986: The Environmental Protection Agency's report said that Iron Mountain Mine's cavernous underground workings could be filled with lightweight cellular concrete to curb the flow of potentially toxic acid drainage.
07/21/2011 27 Filed order (Appellate Commissioner) (MOATT) On April 15, 2011, the court granted the motion of appellants' retained counsel to withdraw as counsel of record and noted that a corporation must be represented by counsel. The court ordered appellant Iron Mountain Mines, Inc.'s ("Appellant Iron Mountain") new counsel to file a notice of appearance with the court within 28 days after the date of that order. Appellant Iron Mountain has informed the court that it has been unable to retain counsel despite being granted two extensions of time to do so. Appellant Iron Mountain's unopposed request for a third extension of time is granted. Appellant Iron Mountain shall have one final opportunity to retain counsel. Within 30 days after the date of this order, Appellant Iron Mountain's new counsel shall file a notice of appearance with the court. If no notice of appearance is timely filed, the Clerk shall dismiss this appeal as to Appellant Iron Mountain. See In re Highley, 459 F.2d 554, 555 (9th Cir. 1972). Appellant Iron Mountain's request that the court recommend or refer a lawyer that will accept payment once Appellant Iron Mountain is funded, is denied. A new briefing schedule shall be established upon compliance with this order.[7827904] (TSP)
Tsunami
Tsunamis (pronounced soo-ná-mees), also known as seismic sea waves (mistakenly called “tidal waves”), are a series of enormous waves created by an underwater disturbance such as an earthquake, landslide, volcanic eruption, or meteorite. A tsunami can move hundreds of miles per hour in the open ocean and smash into land with waves as high as 100 feet or more.
From the area where the tsunami originates, waves travel outward in all directions. Once the wave approaches the shore, it builds in height. The topography of the coastline and the ocean floor will influence the size of the wave. There may be more than one wave and the succeeding one may be larger than the one before. That is why a small tsunami at one beach can be a giant wave a few miles away.
All tsunamis are potentially dangerous, even though they may not damage every coastline they strike. A tsunami can strike anywhere along most of the U.S. coastline. The most destructive tsunamis have occurred along the coasts of California, Oregon, Washington, Alaska, and Hawaii.
Earthquake-induced movement of the ocean floor most often generates tsunamis. If a major earthquake or landslide occurs close to shore, the first wave in a series could reach the beach in a few minutes, even before a warning is issued. Areas are at greater risk if they are less than 25 feet above sea level and within a mile of the shoreline. Drowning is the most common cause of death associated with a tsunami. Tsunami waves and the receding water are very destructive to structures in the run-up zone. Other hazards include flooding, contamination of drinking water, and fires from gas lines or ruptured tanks.
How can I protect myself from a tsunami?
Take protective measures:
Vertical Evacuation from Tsunamis: A Guide for Community Officials
California Civil Jury Instructions (CACI)
Shasta County pot raids target illegal grow sites
July 01, 2011(07-01) 16:04 PDT Redding, Calif. (AP) --
Law enforcement agents have arrested three people and destroyed nearly 83,000 marijuana plants in Shasta County as part of a sweeping crackdown focusing on Mexican nationals at illegal grow sites.
Sheriff's Sgt. Barry Powell says a team of federal, state and local agents went on at least one marijuana bust a day for seven days of operations, starting June 21.
Powell says authorities arrested 26-year-old Sergio Raul Ledesma-Araiza on suspicion of various drug charges and other offenses, including water pollution and entering the country illegally.
Cash-Strapped U.S. Police Departments Turn to More Marijuana Busts
Shasta County Sheriff Tom Bosenko, his budget under pressure in a weak economy, has laid off staff, reduced patrols and even released jail inmates. But there's one mission on which he's spending more than in recent years: pot busts, the Wall Street Journal reported Saturday.
The reason is simple: If the California lawman steps up his pursuit of marijuana growers, his department is eligible for roughly half a million dollars a year in federal anti-drug funding, helping save some jobs. The majority of the funding would have to be used to fight pot. Marijuana may not be the county's most pressing crime problem, the sheriff says, but "it's where the money is."
Washington has long allocated funds to help localities fight crime, influencing their priorities in the process. Today's local budget squeezes are enhancing this effect, and the result is particularly striking in California, where many residents take a benign view of pot but federal dollars help keep law-enforcement focused on it.
To make sure his office gets the federal funds, Bosenko since last year has spent about $340,000 of his department's shrinking resources, more than in past years, on a team that tramps through the woods looking for pot farms. Though the squad is mostly U.S.-funded, the federal grants don't cover some of its needs, such as a team chief and certain equipment. So, Bosenko has to pay for those out of his regular budget.
Cubicles central to GSA's 'workspace of the future' fiercegovernment.com Meet the workspace of the future: cubicles. If that sounds like the workspace of the past and dismal present, consider that at least the administrator of the General Services Administration will be working in one, too.
3502. "Highest and Best Use" Explained
You must determine fair market value based on the property's highest and best use. The highest and best use is the most profitable legally permissible use for which the property is physically, geographically, and economically adaptable.
Do not consider any personal value of the property to [name of property owner] or [his/her/its] need for the property. Also, do not consider the particular need of [name of condemnor] for the property.
Sources and Authority
"The property taken is valued based on the highest and best use for which it is geographically and economically adaptable." (County of San Diego v. Rancho Vista Del Mar, Inc. (1993) 16 Cal.App.4th 1046, 1058 [20 Cal.Rptr.2d 675], internal citation omitted.)
"It is long settled that the condemned property may not be valued based on its special value to the property owner. . . . Thus, the cases have generally held that a property owner may not value his property based upon its use for a projected special purpose or for a hypothetical business." (County of San Diego, supra, 16 Cal.App.4th at pp. 1058- 1059.)
"Just as the property may not be valued based on its special value to the owner, the property may not be valued on the basis of its special value to the government." (County of San Diego, supra, 16 Cal.App.4th at p. 1061, internal citation omitted.)
"Simply stated, purchasers of property that is known to be condemned are prevented from inflating the value of the property by conjecturing what the condemner will actually pay for the property." (People ex rel. Dept. of Water Resources v. Andresen (1987) 193 Cal.App.3d 1144, 1156 [238 Cal.Rptr. 826], internal citation omitted.)
"In condemnation cases it is a firmly established principle that the compensation payable is to be based upon the loss to the owner rather than upon the benefit received by the taker. The California Supreme Court early stated that 'it seems monstrous to say that the benefit arising from the proposed improvement is to be taken into onsideration as an element of the value of the land.' This has been construed to mean that '[the] beneficial purpose to be derived by the condemnor's use of the property is not to be taken into consideration in determining market values, for it is wholly irrelevant.' This rule, however, does not mean that evidence of the highest and best use of the property must be excluded simply because that is the use that the condemner intends to make of the property. . . . [I]n City of Los Angeles v. Decker, the court reiterated that it is improper to award compensation based upon the value to the condemner, but held that it was proper in that case to consider the value of the property for parking purposes (the highest and best use) despite the fact that the city intended to use it for such purposes." (Pacific Gas & Electric Co. v. Zuckerman (1987) 189 Cal.App.3d 1113, 1127 [234 Cal.Rptr. 630], internal citations omitted.)
"Once the highest and best use of the property is determined, one of several approaches to valuation must be selected. Evidence Code sections 815-820 set forth various methodologies sanctioned for use by valuation experts, including considering sales contracts of comparable properties and capitalizing income from the subject land and its existing improvements." (San Diego Metropolitan Transit Development Bd. v. Cushman (1997) 53 Cal.App.4th 918, 926 [62 Cal.Rptr.2d 121], internal citations omitted.)
Secondary Sources
8 Witkin, Summary of California Law (9th ed. 1988) Constitutional Law, � 1016
1 Condemnation Practice in California (Cont.Ed.Bar 2005) �� 4.9-4.21
To help California-based applicants in their efforts to comply with federal and state environmental and historic preservation laws, Cal EMA provides technical assistance and training on the environmental and historic review process.
Copies of the Green Book can be obtained by calling the FEMA/Cal EMA news desk at (626) 431-3910.
FEMA's mission is to support our citizens and first responders to ensure that as a nation we work together to build, sustain, and improve our capability to prepare for, protect against, respond to, recover from, and mitigate all hazards.
The California Emergency Management Agency (Cal EMA) coordinates overall state agency preparedness for, response to and recovery from major disasters. Cal EMA also maintains the State Emergency Plan, which outlines the organizational structure for state management of the response to natural and manmade disasters.
Located along the northern California coast, the Cascadia Subduction Zone is a source of major earthquakes in the Pacific Northwest.
07/21/2011 27 Filed order (Appellate Commissioner) (MOATT) On April 15, 2011, the court granted the motion of appellants' retained counsel to withdraw as counsel of record and noted that a corporation must be represented by counsel. The court ordered appellant Iron Mountain Mines, Inc.'s ("Appellant Iron Mountain") new counsel to file a notice of appearance with the court within 28 days after the date of that order. Appellant Iron Mountain has informed the court that it has been unable to retain counsel despite being granted two extensions of time to do so. Appellant Iron Mountain's unopposed request for a third extension of time is granted. Appellant Iron Mountain shall have one final opportunity to retain counsel. Within 30 days after the date of this order, Appellant Iron Mountain's new counsel shall file a notice of appearance with the court. If no notice of appearance is timely filed, the Clerk shall dismiss this appeal as to Appellant Iron Mountain. See In re Highley, 459 F.2d 554, 555 (9th Cir. 1972). Appellant Iron Mountain's request that the court recommend or refer a lawyer that will accept payment once Appellant Iron Mountain is funded, is denied. A new briefing schedule shall be established upon compliance with this order.[7827904] (TSP)
Food deserts are defined as parts of the country vapid of fresh fruit, vegetables, and other healthful whole foods, usually found in impoverished areas. This is largely due to a lack of grocery stores, farmers’ markets, and healthy food providers.
This has become a big problem because while food deserts are often short on whole food providers, especially fresh fruits and vegetables, instead, they are heavy on local quickie marts that provide a wealth of processed, sugar, and fat laden foods that are known contributors to our nation’s obesity epidemic. The food desert problem has in fact become such an issue that the USDA has outlined a map of our nation’s food deserts, which I saw on Mother Nature Network.
Part of the First Lady's Let's Move! initiative, the proposed Healthy Food Financing Initiative (HFFI) will expand the availability of nutritious food to food deserts—low-income communities without ready access to healthy and affordable food—by developing and equipping grocery stores, small retailers, corner stores, and farmers markets with fresh and healthy food.
The USDA defines what's considered a food desert and which areas will be helped by this initiative:
To qualify as a “low-access community,” at least 500 people and/or at least 33 percent of the census tract's population must reside more than one mile from a supermarket or large grocery store (for rural census tracts, the distance is more than 10 miles).
I agree with Mother Nature Network, this map is helpful in community planning and also a real eye opener.
Printable version Email this page Secretary Vilsack Announces Biomass Production Projects to Promote Renewable Energy Development and Create Jobs in Rural America
WASHINGTON, July 26, 2011 - Agriculture Secretary Tom Vilsack announced today the creation of four additional Biomass Crop Assistance Program (BCAP) project areas in six states to expand the availability of non-food crops to be used in the manufacturing of liquid biofuels. The four project areas set aside acres in California, Kansas, Montana, Oklahoma, Oregon and Washington for the production of renewable energy crops. According to industry estimates, these projects will create more than 3,400 jobs in the biorefinery, agriculture and supporting sectors, and provide the feedstocks to produce more than 2 million gallons of biofuels annually when full production levels are achieved.
"The Obama Administration is committed to providing financial opportunities to rural communities, farmers and ranchers to produce biomass which will be converted to renewable fuels and increase America's energy independence," said Vilsack. "The selection of these project areas is another step in the effort to assist the nation's advanced biofuel industry to produce energy in commercial quantities from sustainable rural resources. This effort will create jobs and stimulate rural economies across the nation."
BCAP, created in the 2008 Farm Bill, helps farmers and forest land¬owners with start-up costs of planting non-food energy crops for conversion to heat, power, biobased products and advanced biofuels. BCAP is designed to ensure sufficient biomass is available to reduce America's reliance on foreign oil, improve domestic energy security, reduce pollution and spur rural economic development and job creation.
Two of the new BCAP project areas, targeted for California, Montana, Washington and Oregon, will grow camelina at a significant scale. Camelina, an oilseed, is a rotation crop for wheat that can be established on marginally productive land. Biofuel from camelina is an ideal jet fuel substitute, and the announcement of these projects coincides with the first anniversary of a joint announcement by USDA, the Boeing Corporation and the Air Transportation Association on an initiative to bring sustainable and renewable aviation fuels to the marketplace. The project has a target of 51,000 acres. The sponsors are Beaver Biodiesel, LLC and AltAir Fuels LLC. The project areas are near biomass conversion facilities in Bakersfield, Calif., Tacoma, Wash., and Albany, Ore.
Another BCAP project area, part of an effort sponsored by cellulosic biofuels company ZeaChem, will encourage growth of hybrid poplar trees in Oregon. The goal is to enroll up to 7,000 acres. This project is part of a series of measures that comprise USDA's Wood-to-Energy Initiative. It seeks to build a forest restoration economy by integrating energy feedstock within the larger forest products sector to sustain rural jobs and prosperity. The project area surrounds a biomass conversion facility in Boardman, Ore.
Additionally, a BCAP project area in Kansas and Oklahoma, sponsored by Abengoa Biofuels, has been designated to grow up to 20,000 acres of switchgrass. The project area surrounds the future facility's biomass conversion facility in Hugoton, Kan.
USDA has allocated approximately $45 million for contracts that range between less than five years up to 15 years in the four project areas for producers who volunteer to enroll in BCAP. Producers who enter into BCAP contracts are eligible for reimbursements of up to 75 percent of the establishment costs of the perennial energy crop, and up to five years of annual maintenance payments for herbaceous crops and up to 15 years for woody crops. According to industry estimates, more than 3,400 jobs in the biorefinery, agriculture and supporting sectors will be created due to these new BCAP project areas, with more than 2 million gallons annually of biofuels manufactured when full production levels are achieved.
Earlier this year, USDA announced five BCAP project areas where energy crops will be grown on up to 250,000 acres in 66 counties in Arkansas, Kansas, Missouri, Pennsylvania and Ohio. These crops, such as switchgrass and giant miscanthus, are the first-ever national investments in expanding U.S. biomass resources to meet domestic energy security.
The sign-up period for these four new project areas will begin on Aug. 8, 2011. The deadline to sign up for the project areas is Friday, Sept. 16, 2011. The Farm Service Agency, administering the program on behalf of the Commodity Credit Corporation with conservation planning assistance from the Natural Resources Conservation Service and other partners, will enter into contracts with landowners and operators in these project areas. Producers interested in participating in the project areas should visit their local FSA county office. Information about BCAP may be found at www.fsa.usda.gov/bcap.
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USDA is an equal opportunity provider, employer and lender. To file a complaint of discrimination, write to USDA, Assistant Secretary for Civil Rights, Office of the Assistant Secretary for Civil Rights, 1400 Independence Avenue, S.W., Stop 9410, Washington, DC 20250-9410, or call toll-free at (866) 632-9992 (English) or (800) 877-8339 (TDD) or (866) 377-8642 (English Federal-relay) or (800) 845-6136 (Spanish Federal-relay).
US expands program to boost production of renewable fuel crops
Washington (Platts)--26Jul2011/335 pm EDT/1935 GMT
The US will help fund the growing of crops for biofuels in six states, an expansion of the Biomass Crop Assistance Program created in 2008, the Department of Agriculture said Tuesday.
Four new project areas will set aside hundreds of acres in California, Kansas, Montana, Oklahoma, Oregon and Washington for the production of renewable energy crops, Agriculture Secretary Tom Vilsack said.
USDA has allocated about $45 million for contracts that range from less than five years to up to 15 years. Producers who participate in the BCAP program are eligible for reimbursements of up to 75% of the establishment costs of the crop, plus annual maintenance payments for up to five years for herbaceous crops and up to 15 years for woody crops, USDA said.
"The Obama Administration is committed to providing financial opportunities to rural communities, farmers and ranchers to produce biomass which will be converted to renewable fuels and increase America's energy independence," Vilsack said in a statement. "The selection of these project areas is another step in the effort to assist the nation's advanced biofuel industry produce energy in commercial quantities from sustainable rural resources."
Vilsack said the department is able to fully fund the new round of projects, even if deep cuts are made by Congress in the USDA's 2012 budget.
"The funding is there to fully pay the responsibilities and contracts that will be entered into under these projects," Vilsack told reporters during a conference call. "We aren't making a commitment that is dependent on or conditioned upon subsequent appropriations."
Future funding for projects under the program could be threatened, however, as Congress looks to cut funding for the BCAP program, Vilsack said.
"The Congress has essentially reduced its commitment to BCAP and there is no assurance at this point in time that we will have additional resources," Vilsack said. "I would hope, notwithstanding the fact that we are dealing with constrained resources, that we do not loose sight of the opportunity to invest and to grow the economy and to allow that growth to also help get control of our fiscal house."
Two of the project areas, targeted for California, Montana, Washington and Oregon, will grow camelina, an oilseed that is idea to produce a biofuel that can substitute for jet fuel. The project has a target of 51,000 acres.
Another BCAP project area will encourage the growth of hybrid poplar trees in Oregon.
A BCAP project area in Kansas and Oklahoma has been designated to grow up to 20,000 acres of switchgrass.
--Gary Gentile, gary_gentile@platts.com
Herger reacts to Cut, Cap and Balance Veto Threat
U.S. Congressman Wally Herger
Posted July 26, 2011 at 11:21 a.m.
U.S. Congressman Wally Herger (R, Chico) issued the following statement after the Administration announced that President Barack Obama would veto House Resolution 2560, the Cut, Cap and Balance Act of 2011.
"I strongly support the Cut, Cap and Balance Act. The national debt has shattered confidence in our economy, has cost jobs and is preventing our economic recovery. Working families across our nation are living within their means during tough times. If the rest of America gets it, why doesn't Washington?
"I recently did a Main St. style walk-and-talk where I met with several small business owners and their employees. They shared their concern about our out-of-control debt and frustration with Washington for enacting policies that hold down job creation and economic growth rather than fostering an environment that will enable them to thrive. But the comment I heard most often was 'What is Washington thinking?'
"I told them I really don't understand it either. President Obama has spent his administration enacting policies that have added more debt to our nation than the previous 43 presidents combined. The tragic reality is that the President's big spending policies only made things worse. Unemployment (nationally) is at 9.2 percent and that doesn't count the millions (of unemployed) who have given up (looking for work). The President merely fomented a cycle of debt and joblessness that defines the last two-and-a-half years and has placed us where we are at today.
"Now, with the debt at crisis levels, he is standing in the way of common sense solutions, offering only lectures - not leadership.
"He has asked for Congress' consent to continue business as usual without making serious spending reforms. As a matter of conscience, this Congress cannot support allowing President Obama to continue to steer America's debt past the point of no return. We will be judged harshly, and rightfully so, by future generations if we fail to act.
"The Cut, Cap and Balance Act ends the era of rampant government spending. It immediately reduces spending by $100 billion, cuts $6 trillion over the next 10 years and demands a strong Balanced Budget Amendment.
"I believe the Cut, Cap and Balance Act is what the American people want and what Washington desperately needs."
An incompetent Corps of Engineers and an inflexible FEMA are about to destroy a Coeur d'Alene treasure unnecessarily. The out-of-town and out-of-control federal agencies are blindly calling for the City of Coeur d'Alene to remove hundreds of mature trees from the dike that follows the lake and riverfront around City Park and North Idaho College. (News coverage here, here,here, and here.)
Built by the U.S. Army Corps of Engineers in the 1940s, the dike runs just less than a mile and it purports to protect NIC and the Fort Grounds area from 100-year flood events. The main significance, however, is that the dike protects NIC and the Fort Grounds from unreasonable flood insurance premiums.
Nationwide, FEMA administers the flood insurance program for properties in potential flood zones. Very high premiums for very limited coverage are available to properties built in an area at high risk for floods. However, areas protected by a dike certified by the Corps of Engineers are not considered high-risk. If not certified by the Corps of Engineers, FEMA won't consider the dike as sufficient flood protection. Burned by the experience in New Orleans during hurricane Katrina, both the Corps and FEMA are taking a much harder look at dike certifications around the country.
In a recent inspection, the hammer fell on Coeur d'Alene. A third-party inspection team found some 137 deficiencies in the flood protection system. Many of the deficiencies are minor, and many are legitimate, but the tree-removal issue is the most significant. According to the directive from the Corps of Engineers, all trees on the dike - along the road and to the base of both sides of the dike - will need to be removed. All the roots from the trees will need to be removed. And the dike will then need to be reconstructed to patch the tree-removal.
We hope the city pushes back. KEA would be the first to defend a federal environmental agency decision when it is based in clear law and regulation, sound science, and with the public health and safety a foremost priority. This, however, is not the case in this Corps of Engineers decision.
The Corps actually acknowledges that there is no scientific basis for their restriction of vegetation in flood control levees. The Corps' regulatory authority doesn't come from law or regulation, but rather an "Engineering Technical Letter" disconnected from what the regulations (pdf) actually require. And the local impacts could be significant. For one thing, the dike is likely to contain toxic materials from mine wastes which would have thoroughly contaminated the shoreline when the dike was constructed in the 1940s. Tearing up the dike could make a real mess. And who knows how much it'll cost.
The last major flood event that would have seriously implicated the dike was in 1933, before the dike was built. More recent floods - like in 1997, 2008, and this past year - have not come close to inundating the dike. Certainly, flood control lessons learned in Minot, North Dakota this year should not be lost on anyone, but a more realistic assessment of risks and costs might argue in favor of keeping the trees. Or coming up with a different approach.
In any event, we hope the City Council will shelve the tree-removal decision until more can be known and options can be studied. The trees provide real value to the park and the community every day. Removing them to accommodate out-of-town federal agencies acting only on fear and a hunch and remote probabilities would be a shame.
Brown extends ban on contested mining practice
The Associated Press
Posted: 07/26/2011 06:05:25 PM PDT
SACRAMENTO, Calif.-Gov. Jerry Brown has signed legislation to continue a ban on suction dredging, a process used to mine for gold and other minerals in California rivers.
The governor signed AB120 on Tuesday, The Sacramento Bee reported on its website, www.sacbee.com.
The bill was sought by environmentalists, who said suction-dredging stirs up toxic mercury in the river beds and damages fish-breeding habitat. It stops dredging until at least June 30, 2016, a five-year extension of an existing moratorium on suctioning river-bottom gravel.
AB120 also prevents the practice from restarting until the state Department of Fish and Game sets new rules to allow dredging while protecting the environment
Tuesday, July 26, 2011
U.S House overturns northern Arizona mining ban
The U.S. House yesterday passed the Dept. of Interior appropriations bill, with a provision that overturns the ban on mineral exploration and mining on 1 million acres of federal lands in northern Arizona, imposed by Interior Secretary Ken Salazar. The bill, HR 2584, passed by a vote of 205-131.
The affected lands are outside the boundaries of Grand Canyon National Park.
Resource Record Details
Tribal Homeland Security Grant Program Guidance and Application Kit
The Fiscal Year (FY) 2010 Tribal Homeland Security Grant Program (THSGP) is one tool among a comprehensive set of measures authorized by Congress and implemented by the Administration to help strengthen the Nation against risks associated with potential terrorist attacks. The purpose of the guidance in this document is to assist FEMA and partners in preparing, developing, and managing grant activities.
July 22, 2011 by Kevin M. Foley
CFTC and SEC Staffs to Hold Joint Public Roundtable Discussion Regarding International Issues Relating to the Implementation of Title VII of the Dodd-Frank Act
The staffs of the Commodity Futures Trading Commission and the Securities and Exchange Commission will jointly conduct a public roundtable discussion to address international issues in connection with the implementation of Title VII of the Dodd-Frank Wall Street Reform and Consumer Protection Act. The roundtable will take place on August 1 at the CFTC Headquarters in Washington, D.C.
Further information about the public roundtable, including how to submit remarks to the CFTC and the SEC, is available here.
Katten Muchin Rosenman LLP
Charlotte Chicago Irving London Los Angeles New York Washington, DC
Inhofe trying to expose the horrendous cost of “environmental” regulations
Environmental regulations drain hundreds of billions of dollars from the U.S. economy each year, and it mostly goes unnoticed by the public.
But proposed legislation from Oklahoma Republican Sen. James Inhofe could make the cost of such government interference more transparent.
“Everybody here is focusing on spending and taxes,” Inhofe said, “but what most people don’t realize is the cost of regulation is just as much as the cost of all of the taxes … it’s just less detectable.”
The legislation, known as the CARE Act, would require the U.S. Department of Transportation and Environmental Protection Agency to publicize — in terms of jobs and money — the direct economic costs of the regulations they publish under the Clean Air and Clean Water Acts. (Daily Caller)
Environment: Aren't organic fruits and vegetables superior to conventionally grown food? Shouldn't consumers always choose organic when given a choice? Not necessarily, says a Scientific American blogger.
In a series she's calling "Mythbusting 101," Christie Wilcox takes a look at four beliefs closely linked to organic food. Her July 18 blog takes each of them and exposes the accepted fiction.
The first myth: Organic farms don't use pesticides.
According to Wilcox, more than "20 chemicals (are) commonly used in the growing and processing of organic crops that are approved by the U.S. Organic Standards."
The pesticides used in organic farming are produced by natural sources and go through little, if any, processing. But that doesn't mean they are less toxic than synthetic pesticides used in conventional agriculture.
"Many natural pesticides have been found to be potential - or serious - health risks," Wilcox writes.
She cites the case of Rotenone, an organic pesticide once considered safe. As it turns out, though, Rotenone attacks mitochondria and has caused Parkinson's disease-like symptoms in laboratory rats. It also has "the potential to kill many species, including humans."
Even organic farms that don't use pesticides can be growing harmful food. Wilcox notes that between 1990 and 2001, more than 10,000 people became sick from eating foods tainted with pathogens such as E. coli "and many have organic foods to blame."
Myth No. 2: Organic foods are healthier.
"Science simply cannot find," she says, "any evidence that organic foods are in any way healthier than non-organic ones - and scientists have been comparing the two for over 50 years."
Third myth: Organic is environmentally friendly.
While organic farming uses fewer synthetic substances that hurt the environment, "factory organic farms use their own barrage of chemicals that are still ecologically damaging, and refuse to endorse technologies that might reduce or eliminate the use of these altogether."
The final myth: It's all or none.
Consumers have choices, Wilcox writes. They can eat both types as well as encourage conventional and organic farmers "to listen up and work together to improve our global food resources and act sustainably."
Remember, this appeared in Scientific American, a publication located in the political center, if not somewhat on the port side, of the policy debate. But Wilcox's essay is neither ideological nor shamelessly biased. It's measured and dispassionate. Wilcox has provided a useful public service that every consumer should read.
In a spirited defense of a court rule barring non-lawyers from holding an ownership interest in a law firm, the New York attorney general is asking a federal court to dismiss a Jacoby & Meyers lawsuit the state deems meritless on the law and dangerous to the legal profession and its clients.
Jacoby & Meyers is attempting to overturn New York Court Rule 5.4, which prohibits law firms from accepting outside investment. The personal injury firm contends the rule infringes on its constitutional rights.
In a Southern District lawsuit against the presiding justices of the four departments of the Appellate Division and in parallel actions lodged in New Jersey and Connecticut, Jacoby & Meyers also argues that the prohibition interferes with the business and professional interests of the firm, and ultimately harms the public by denying attorneys "a critical source of funding" that "dramatically impedes access to legal services for those otherwise unable to afford them" (NYLJ, May 20).
But Attorney General Eric T. Schneiderman, in a motion to dismiss the Southern District action, Jacoby & Meyers v. The Presiding Justices, 11-cv-3387, contends that accepting Jacoby & Meyer's claims could open a Pandora's Box.
"[T]he limitations on non-lawyer investments found in the Rules are necessary to ensure that the profession's 'complete independence and uncompromised loyalty to those it serves…the very foundation of the profession' is not compromised by conflicts of interest that would arise whenever a law firm becomes financially beholden to its non-lawyers investors," the attorney general says in court papers. "Plaintiff obviously believes that it would not itself bow to such economic pressures—but the existence of such apparent conflicts could undermine the public's trust in the legal profession. And plaintiff cannot answer for the multitude of attorneys practicing in this State, who would then be free to pursue such investments."
At the heart of the lawsuit is Rule 5.4 of the New York Rules of Professional Conduct, which says that a lawyer cannot practice in a partnership where a non-lawyer owns an interest, a non-lawyer is a member or corporate director or a non-lawyer has the "right to control the professional judgment of a lawyer."
Jacoby & Meyers claims the rule is outdated, unconstitutionally vague, and violates the commerce clause, the First Amendment and the takings clause.
The attorney general counters that the "claims have no merit—indeed many border on frivolous," but maintains that Jacoby & Meyers lacks standing since even if Rule 5.4 was shot down the plaintiff would still be barred under the New York Partnership Law from adding a non-lawyer as partner.
According to the attorney general's motion, the firm is organized as a professional limited liability partnership. As such, it is not permitted to add non-lawyers as partners, the attorney general argues.
"Plaintiff here alleges that it desires an infusion of capital, that it has received offers from non-lawyers interested in becoming partners who are prepared to invest capital in exchange for an equity interest in plaintiff law firm, and that it is prevented from accepting those offers by the New York Rule of Professional Conduct," the attorney general says. "This alleged injury is too remote, not traceable to the actions of the defendants or the Rule being challenged, and declaring the Rule to be legally infirm would not remedy the alleged injury."
The case is pending before Southern District Judge Lewis A. Kaplan and Magistrate Judge Kevin N. Fox.
Assistant Attorneys General Daniel Schulze and Michael J. Siudzinski are defending the four presiding justices.
Jeffrey I. Carton of Meiselman, Denlea, Packman, Carton & Eberz in White Plains represents Jacoby & Meyers.
With the price of gold hitting record highs and equity prices lagging behind, Bob Moriarty, founder of 321gold.com, says it's time to gather some precious metals as insurance against hyperinflation or deflation-whichever may be coming our way-and to stock up on junior resource stocks. Prudent picks, he suggests in this exclusive interview with The Gold Report, stand a good chance of yielding returns up to 500%.
Governor Brown Nominates Goodwin Liu for California Supreme Court
7-26-2011
SACRAMENTO – Governor Edmund G. Brown Jr. nominated Goodwin Liu, Professor of Law at the University of California, Berkeley Law School, to the state Supreme Court today.
Liu, 40, previously was nominated by President Obama to serve on the U.S. Circuit Court of Appeals for the Ninth Circuit, which is based in San Francisco, but Liu withdrew his nomination two months ago after a Republican filibuster prevented senators from voting on his confirmation.
“Professor Liu is an extraordinary man and a distinguished legal scholar and teacher,” Brown said. “He is a nationally-recognized expert on constitutional law and has experience in private practice, government service and in the academic community. I know that he will be an outstanding addition to our state supreme court.”
Prior to joining the Berkeley faculty in 2003, Liu was an appellate litigator in the Washington, D.C. office of Los Angeles-based law firm O’Melveny & Myers. He previously clerked for U.S. Supreme Court Justice Ruth Bader Ginsburg and was special assistant to the Deputy Secretary at the U.S. Department of Education.
Liu was born in Georgia to parents who had emigrated from Taiwan, and in 1977 he moved with his family to Sacramento, where he attended public schools. He received a bachelor’s degree in biology from Stanford University and a master’s from Oxford University, where he was a Rhodes Scholar. Liu received his Juris Doctor (J.D.) degree from Yale Law School, where he was a member of the Yale Law Journal.
Two years ago he won the UC Berkeley Distinguished Teaching Award, the university's most prestigious honor for excellence in teaching. Liu currently serves on the Board of Trustees of Stanford University and is former Chair of the Board of Directors of the American Constitution Society. He was elected to the American Law Institute and he is also on the boards of the National Women's Law Center, the Public Welfare Foundation and the Alliance for Excellent Education. He and his wife, Ann O’Leary, have a daughter and a son.
In response to his selection, Liu said: “I’m deeply honored by Governor Brown’s nomination and look forward to the opportunity to serve the people of California on our state’s highest court.”
Although U.S. Senate Republicans blocked his appointment to the federal bench, his nomination was supported by noted legal conservatives, including former Whitewater prosecutor Kenneth Starr; Richard Painter, who was legal counsel to President George W. Bush, and former Rep. Tom Campbell, now dean of Chapman University’s law school. Liu received a strong endorsement from the American Bar Association, and others supporting his nomination included the California Correctional Police Officers Association, the California Labor Federation, the Hispanic National Bar Association, the National Asian Pacific American Bar Association and the three most recent Presidents of Stanford University.
Brown has forwarded Liu’s name to the State Bar’s Commission of Judicial Nominees Evaluation. Following the Bar committee’s review, the Commission on Judicial Appointments, consisting of State Supreme Court Chief Justice Tani Cantil-Sakauye, Attorney General Kamala Harris and Justice Joan Dempsey Klein, senior presiding justice of the state Court of Appeal, will hold one or more public hearings to review Liu’s nomination. Although the bar committee’s recommendation is not binding, the Governor’s appointment will not become final until the Commission on Judicial Appointments confirms the nomination.
Liu will replace Associate Justice Carlos Moreno, who retired from the court earlier this year.
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California governor signs the Dream Act okaying financial aid for illegal alien student
California governor Jerry Brown yesterday signed a bill allowing students who have entered the United States illegally to receive private financial aid at California's public colleges.
'It's crucial that we invest in every child that lives and is born in this state. Signing this Dream Act is another piece of investment in people because people drive the culture, the economy,' said Governor Brown.
It is the first bill of a two-bill package called the California Dream Act, which was passed in the state legislature earlier this month.
It means that undocumented immigrants who have earned a diploma after attending at least three years of high school in California are eligible for privately-funded scholarships.
The second part of the state Dream Act, currently in the state senate, would allow undocumented students to receive public funds.
Introduced by state Assemblyman Gil Cedillo, Democrat of Los Angeles, California, the bill differs from the federal Dream Act. The federal Dream Act would provide for a path to citizenship for those who entered the country illegally as children.
Critics of the law, like Republican assemblyman Tim Donnelly of Twin Peaks, California, argue that providing aid to undocumented students will force citizens and legal students to compete for limited financial resources.
'Bottom line,' Assemblyman Donnelly said, 'is California doesn't have enough money to take care of its obligations to its citizens right now.'
Last year, former California governor Arnold Schwarzenegger vetoed a previous version of the bill.
But the law impacts less than 1 per cent of California's public university and college students.
Fewer than 80 students - across a population greater than 220,000 - will be affected.
Public universities and colleges are in support of the bill. California state law currently allows qualified undocumented students to pay in-state tuition at four-year state universities, not the higher out-of-state tuition rate.
Without financial aid, many institutions are unaffordable for undocumented immigrants.
Since the storm of March 2011, many Californians have been wondering what will happen to their homes and property that were damaged during the heavy rains and snowstorms, high winds and debris flows. The California Emergency Management Agency's (Cal EMA) Office of Public Information and Media Relations spoke to many of these devastated communities that stretch across one-third of the state and documented their journey in this short documentary.
STATE: California Congressional delegation asks FEMA to reconsider disaster declaration
Written by Lake County News reports
Tuesday, 26 July 2011
Sens. Barbara Boxer (D-CA) and Dianne Feinstein (D-CA) have joined Congressmen Mike Thompson (D-CA), Wally Herger (R-CA), and 26 other House members in a bipartisan letter urging the Federal Emergency Management Agency (FEMA) to reverse its denial of a major disaster declaration for numerous California counties hit by a severe storm system earlier this year.
The bipartisan letter comes less than two weeks after Gov. Jerry Brown formally appealed FEMA’s decision to deny federal assistance for affected communities.
In their letter, the members of Congress highlighted the significant and costly damages caused by the storm system, which swept through Alameda, Amador, Butte, Contra Costa, Del Norte, Humboldt, Madera, Mariposa, Mendocino, Monterey, Santa Barbara, Santa Cruz, Sierra, Stanislaus, Sutter, Trinity, and Tuolumne counties in March.
Current estimates of the damage now exceed $51 million, causing significant financial strain to the state and impacted local communities.
In total, 30 California Delegation Members who represent communities affected by the March storm system signed on to the bipartisan Congressional Delegation letter, including: Sen. Barbara Boxer (D-CA), Sen. Dianne Feinstein (D-CA), Rep. Mike Thompson (D-CA), Rep. Wally Herger (R-CA), Rep. Lois Capps (D-CA), Rep. Sam Farr (D-CA), Rep. Laura Richardson (D-CA), Rep. Dan Lungren (D-CA), Rep. Jeff Denham (R-CA), Rep. David Dreier (R-CA), Rep. Barbara Lee (D-CA), Rep. George Miller (D-CA), Rep. Jerry McNerney (D-CA), Rep. Linda Sánchez (D-CA), Rep. John Garamendi (D-CA), Rep. Lucille Roybal-Allard (D-CA), Rep. Grace Napolitano (D-CA), Rep. Lynn Woolsey (D-CA), Rep. Mike Honda (D-CA), Rep. Brian Bilbray (D-CA), Rep. Gary Miller (R-CA), Rep. Adam Schiff (D-CA), Rep. Zoe Lofgren (D-CA), Rep. Anna Eshoo (D-CA), Rep. Bob Filner (D-CA), Rep. Susan Davis (D-CA), Rep. Doris Matsui (D-CA), Rep. Jim Costa (D-CA), Rep. Jackie Speier (D-CA), and Rep. Janice Hahn (D-CA).
A copy of their letter to FEMA and President Obama is available below:
“Dear Mr. President:
“We write to you in strong support of the State of California’s appeal regarding the Federal Emergency Management Agency’s (FEMA) decision to deny a major disaster declaration and provide federal assistance to address the damages sustained from the severe storm system that struck California in March 2011.
“Between March 15 and 27, 2011, a severe storm system struck California bringing heavy rain and snow, high winds and flooding, destroying and damaging property throughout the state. Seventeen counties in our state were hit hard by this storm system including Alameda, Amador, Butte, Contra Costa, Del Norte, Humboldt, Madera, Mariposa, Mendocino, Monterey, Santa Barbara, Santa Cruz, Sierra, Stanislaus, Sutter, Trinity, and Tuolumne.
“We understand that a Stafford Act major disaster declaration for a storm event is limited to (1) a single storm, or (2) a series of storms that are deemed to be part of the same storm system that impact the same geographical areas, such that the impacts from the separate storms are indistinguishable, and are separated by three days or less. According to the National Weather Service and the California Department of Water Resources, the damages sustained were from a single low pressure storm system which set up over the region for two weeks shifting from north to south and back again across the state. This is consistent with the second category for a qualifying storm event. Furthermore, these conditions are similar to other weather-related federal disasters declaration in 1986, 1997, 1998, 2004/2005 and 2010.
“Current estimates of the damage caused by the storm system now exceed $51 million, causing significant financial impacts to the state and the affected local jurisdictions that are beyond their capabilities. Many of us have had the opportunity to view the damage in our communities first-hand, and it is clear that a major disaster declaration is critical to helping our state recover from this devastating storm system.
“Therefore, we strongly support the State of California’s appeal regarding a major disaster declaration and federal disaster assistance related to the March 2011 storm system. We appreciate your consideration of this request, and we stand ready to assist you in expediting support and resources to the impacted communities throughout California.”
Restoring Forest Management is Critical to Northern California Timber Counties
Knowing your interest in federal land management, I want to let you know that I participated at a House Natural Resources Committee hearing on the reauthorization of the Secure Rural Schools program. This program was created with my support in 2000 to provide short-term support to forest counties after their timber receipts fell substantially when environmental regulations and lawsuits brought forest management to a virtual standstill. At the same time, it was supposed to create a pathway for getting common sense management back on our federal forests, restore forest health and create jobs for our local communities.
The Secure Rural Schools program has provided a critical funding bridge for our local counties and schools, but more than ten years later, timber harvests on federal forests still remain far below their historic average. The tragic results have been the continued economic decline of several communities in Northern California and forests that are increasingly vulnerable to catastrophic wildfires. The long-term solution rests solely in restoring forest management and creating good paying jobs, which will in turn increase timber receipts to help stabilize local counties and schools. As the debate on reauthorizing the Secure Rural Schools moves forward, I will continue to push for commonsense, balanced forest policies that significantly increase forest management and create jobs in our timber counties.
Additional Background: Congress developed a revenue sharing program in 1908 to compensate for the costs of federal land ownership borne by local government. This arrangement sent 25 percent of all revenues generated from national forests to the counties wherein those lands are located to be invested in public roads and schools. This system was effective until the late 1980s and 1990s when unbalanced environmental laws caused a substantial decline in forest harvesting.
GAO: Billions in stimulus contracts went to tax delinquents
Sunday, July 24, 2011
GAO: Billions in stimulus contracts went to tax delinquents
By: Bernie Becker, The Hill
A Senate panel on Tuesday will examine how more than $24 billion in stimulus funds went to contractors or organizations that owe the federal government millions in back taxes.
A new report issued by the Government Accountability Office (GAO) found 3,700 contractors and grantees that received stimulus funds owed a combined $757 million in back taxes.
"That such a huge amount of the stimulus money went to known tax cheats should be a wakeup call for Congress," said Sen. Tom Coburn (R-Okla.), one of the five lawmakers who requested the report.
Coburn and Sen. Carl Levin (D-Mich.) are scheduled to hold a Senate Permanent Subcommittee on Investigations hearing on the matter Tuesday afternoon. Coburn and Levin released some of the report's findings in advance of the hearing.
Levin noted that the executive branch had already stressed that contractors could be denied certain awards if they had not paid taxes.
"Now the executive branch should get on with it and actually debar the worst of the tax cheats from the contractor workforce," he said.
The stimulus, which cost an estimated $787 billion when it was approved by Congress, is credited by the White House and most Democrats with preventing a deeper recession. Republicans, however, railed against the measure, noting that unemployment and the nation's debt rose after it was approved.
Sens. Max Baucus (D-Mont.), the chairman of the Senate Finance Committee; Orrin Hatch (R-Utah), the panel's ranking member; and Chuck Grassley (R-Utah), the ranking member on the Senate Judiciary Committee, also called for the report from the GAO, Congress's investigative arm.
GAO signaled that the problem of stimulus funds going to those with outstanding tax bills was probably broader than it had identified.
In all, investigators looked at 63,000 taxpayers and organizations, finding that close to 6 percent of them owed back taxes. Roughly a third of the tax debts were from before 2003, well before the stimulus package was enacted.
The report also discusses, among other cases, a nonprofit owing more than $2 million in payroll taxes that was awarded more than $1 million in stimulus funds. The nonprofits's chief executive was also known to have made numerous trips to a casino.
In another case, a security company cited for labor violations and dubbed uncooperative by the IRS received a contract worth more than $100,000, despite owing more than $9 million in taxes.
Barack Obama warns of market meltdown if US debt talks fail
US President Barack Obama and top Congressional leaders are scrambling to agree a deal to raise America's $14.3 trillion (£8.8trillion) debt ceiling before financial markets open on Monday.
The stakes have risen dramatically in the last 48 hours after long-running talks between President Obama and John Boehner, the top Republican in Congress, collapsed in acrimony.
"It's very important that the leadership (in Congress) understands that Wall Street will be opening on Monday, and we'd better have some answers," President Obama warned.
Failure to strike a deal by August 2, when the government has said it will no longer be able to pay all its bills, will leave markets facing the prospect of the first ever major default by the US.
Both President Obama and Democrats and Republicans in Congress have insisted that an agreement on reducing America's long-term deficit is required to approve an increase in the debt ceiling. But weeks of increasingly fraught talks have delivered nothing. Having met in The White House yesterday, President Obama and the leaders from both parties in the Senate and House of Representatives are expected to meet again on Sunday as the pressure intensifies.
Although the US Treasury has set a deadline of August 2, observers say the outline of a deal is needed early next week to ensure there is time for Congress to vote it through. "The whole thing is semi ridiculous that they're at this point," said Launny Steffens, founder of investment firm Spring Mountain Capital. "Do I think there would be a massive market reaction with no deal? There very well could be."
Investors and traders on Wall Street and across the world's financial capitals have been confident so far that Capitol Hill won't risk a default that Federal Reserve chairman Ben Bernanke has warned would be "catastrophic." Prices for US government debt, considered the safest asset in financial markets and a key instrument for setting borrowing costs for consumers and companies in the US, closed on Friday near their high for the year. "The market has been telling us that it's not concerned about the debt ceiling," said Priya Misra, a bond strategist at Bank of America Merrill Lynch. "I don't think anyone is prepared for default."
That confidence will come under renewed pressure tomorrow as efforts to reach a deal enter their final week. There are signs that US authorities are stepping up their planning should the ceiling not be raised by August 2. Timothy Geithner, the US Treasury Secretary, and Mr Bernanke met on Friday to examine the possible consequences for financial markets and the wider economy.
Experts say that because US government bonds, or Treasuries, are seen as the safest financial asset many investors will struggle to protect themselves against the risk of a default. "If you polled all the money managers who own Treasuries, I'm not sure they would know what to do," said Thomas O'Connor, a trader in New York at Pierpont Securities.
With just days to go, the prospect of a deficit deal that preserves America's prized 'AAA' rating is also receding. Ratings agency Standard & Poor's has warned that unless a deal convinces it that politicians are serious about cutting the deficit, then the US risks a downgrade for the first time in its history.
That will deal another blow to an economy that investors say is already suffering because of the protracted and politically divisive talks in Washington. "It's having a negative impact on business sentiment, on consumer sentiment and it's not helpful to an economy facing challenges," said Tony Crescenzi of Pimco, which runs the world's biggest bond fund.
Investors and politicians will be reminded by the scale of those challenges when the latest US growth figures are released on Friday. The world's biggest economy is expected to have grown just 1.6pc in the second quarter, down from the 1.9pc in the first three months of the year.
BOOK REVIEW: Fannie and Freddie's bubble
RECKLESS ENDANGERMENT: HOW OUTSIZED AMBITION, GREED, AND CORRUPTION LED TO ECONOMIC ARMAGEDDON
By Gretchen Morgenson and Joshua Rosner
Times Books, $30, 311 pages
The government did it - cause the economic meltdown. Of course, there were other factors. But in "Reckless Endangerment," reporter Gretchen Morgenson and analyst Joshua Rosner point the biggest finger at Fannie Mae and Freddie Mac. These so-called government-sponsored enterprises (GSEs) used any means - fair or foul - to create a housing bubble. When it popped, economy-wide havoc resulted.
Herrera Beutler bill gets mixed reaction
It would undo court ruling on runoff on logging roads
U.S. Rep. Jaime Herrera Beutler is winning praise from local forestland owners - but barbs from the Sierra Club - for co-sponsoring legislation that would undo a 2010 federal court ruling requiring logging companies to get discharge permits for runoff on logging roads.
The ruling by the 9th U.S. Circuit Court of Appeals last August undid years of federal Clean Water Act policy by declaring that runoff from forest roads must be treated the same as runoff from such "point sources" as factories and parking lots.
Under the ruling, private forestland owners would be required to obtain a National Pollution Discharge Elimination System (NPDES) permit covering runoff from forest roads.
In response, Herrera Beutler, R-Camas, teamed with Rep. Kurt Schrader, D-Ore., earlier this month to introduce a "forest roads protection bill" that would treat logging roads on private land as "nonpoint" pollution sources that do not require additional permits. The legislation, House Resolution 2018, easily passed the House by a vote of 239-184.
"Many private forest-related businesses have told me that if this ruling stands, they'll say 'enough is enough' and shut down their business," Herrera Beutler said in announcing the legislation. "Such closures would have a devastating impact on Southwest Washington's economy and its workers. "
Sens. Ron Wyden, D-Ore., and Mike Crapo, R-Idaho, have introduced similar legislation in the U.S. Senate.
"I commend the bipartisan, bicameral group of members led by Congresswoman Herrera Beutler and others for reinstating a sensible and effective 35-year program for water quality protection that also protects family-wage jobs in the forest products and related sectors," said Mike Draper, president of the Western District of the United Brotherhood of Carpenters and Joiners of America, in a statement.
Application of the 9th Circuit decision across the region would bring forest management to a halt and destroy local economies, Draper said.
The 2010 ruling by a three-judge panel of the 9th Circuit came in a lawsuit filed by the Northwest Environmental Defense Center against then-Oregon State Forester Marvin Brown and the Oregon Department of Forestry involving two logging roads serving Oregon's Tillamook State Forest. The plaintiffs argued that the department should be required to obtain an NPDES permit for stormwater runoff from the roads because the sediment in the runoff is a pollutant regulated under the Clean Water Act.
The ruling has "potentially sweeping implications," according to an analysis by the Portland law firm Stoel Rives. "If broadly read, this opinion would require NPDES permits for every road in the country that is served by ditches or culverts that eventually discharge to natural surface waters and that is not already regulated by the CWA."
The Sierra Club fired off a press release after the House vote saying the legislation "threatens the water quality in our lakes and rivers and the safety of our drinking water sources."
"This legislation would roll back key environmental protections of the Clean Water Act, including those that allow downstream states to protect their water from upstream states' pollution," said Sierra Club spokeswoman Laura Stevens.
"People want lakes and rivers safe for swimming, fishing and boating, and certainly we all expect to have clean sources of drinking water," Stevens said in a statement. "It's outrageous that Rep. Herrera Beutler would limit clean water protections."
The Washington Forest Protection Association warned of a regulatory nightmare if the federal court ruling is allowed to take effect.
"If forest owners are forced to treat the hundreds of thousands of drainage pipes and ditches on their property as if they were outfalls from factories releasing toxic chemicals into the nation's waters, the individual monitoring requirements would be so costly that it would threaten the viability of the very forests that the 9th Circuit claims to be protecting," said spokeswoman Cindy Mitchell.
Rick Dunning, a Clark County tree farmer, said the additional regulation "is especially unnecessary and burdensome for Washington family forest owners, who currently must comply wit the most stringent forest practice rules in the nation."
Under the state's Forests and Fish rule, forestland owners already are required to develop comprehensive road maintenance and road abandonment plans, Dunning said.
(CN) - A Washington federal judge blasted the Environmental Protection Agency, Maryland and District of Columbia for ignoring the impact of certain pollutants on the Anacostia River when it approved a cleanup plan that was over 30 years in the making.
Chief U.S. District Judge Royce Lamberth lamented the trio's failure to adhere to the letter and the spirit of the Clean Water Act in a decision granting summary judgment to Anacostia Riverkeeper Inc. and Friends of the Earth.
The 67-page opinion forces the agency to reconsider the total daily maximum loads (TDML) of pollution that can be discharged into the river.
"The CWA [Clean Water Act] was enacted in light of severe threats to the nation's navigable waters, and it was intended to spur immediate action by both federal and state authorities," Lamberth wrote. "Yes (sic) despite the act's command that states identify and develop TMDLs for implemented waters, the district and EPA spent 20 years ignoring these obligations and fighting attempts to compel them to act. Then, despite the act's unmistakable requirement to develop a total maximum daily load for each pollutant, EPA and the district spent the next 7 years insisting that they need only develop annual loads. And now, despite the act's clear instruction that each TMDL set levels necessary to implement all applicable water quality standards, EPA and the District - now joined by Maryland-have spent the last 4 years arguing that they need only pay attention to some of those standards. The Court will not countenance such conduct." (Italics in original.)
Anacostia Riverkeeper and Friends of the Earth had claimed that, while Maryland and the District included recreational and aesthetic enjoyment in their list of essential uses for the river, the EPA approved a plan with TMDLs that fell far short of those necessary to support such uses.
The approved plan expressly focuses on TMDL levels sufficient to support plant and animal life but -in the words of Friends of the Earth - "studiously avoids mentioning or otherwise addressing any other designated uses," like swimming or boating.
Lamberth also agreed that the EPA had failed to consider other designated uses, as it is required to do under the Clean Water Act.
"EPA simply does not consider whether the final TMDL would protect designated uses or satisfy water quality criteria related to recreational or aesthetic uses in the Anacostia River," he wrote. "The agency's own words could not be clearer on this point: '[I]mpairment of other beneficial water uses such as primary recreation (swimming) and secondary (boating) contact recreation was neither the focus of the listed impairment nor the goal for these TMDLs.'
"These omissions are fatal."
The EPA argued that Lamberth should defer to its expert judgment that because the approved plan was expected to reduce sediment by 85 percent and other designated uses would be incidental to approval of TMDL set for supporting aquatic plant and animal life.
But Lamberth clucked that there was no evidence in the record demonstrating that the agency had looked at the other uses. "The problem is that the decision rationale does not explain what judgment EPA is exercising, the scientific basis for that judgment, or the reasonable conclusions of that exercise," he wrote. "The court will not supply post-hoc rationales for action where the agency's own decision rationale contains none."
Simply asserting that sediment reduction would benefit other uses without specifically showing how it would meet the standards for those uses is not sufficient to meet the requirements of the Clean Water Act, the decision states.
"One need not possess PhDs in water management and hydro-physics to conclude that a reduction in water contamination - whatever the magnitude - will likely make the Anacostia's waters 'better' for recreational and aesthetic enjoyment," Lamberth wrote.
"If this were all that were required, however, enforcement of the CWA could be left to 20-year old environmental studies majors," he added. "The question posed by the CWA - the question that demands the agency's expertise - is what level of reduction is necessary to safeguard all designated uses under state law. In this case, EPA does not even attempt to answer that question."
Lamberth will issue a separate order vacating the EPA's approval of the TMDL and remanding the plan to the agency for consideration in light of his ruling.
NSF 11-074 Dear Colleague Letter: Collaborative Opportunity for Research Between I/UCRCs (CORBI)
Memorandum
To:
NSF Industry/ University Cooperative Research Centers (I/UCRCs)
From:
Dr. Kesh Narayanan, Deputy Assistant Director
Directorate for Engineering
Dr. C. Suzanne Iacono, Deputy Assistant Director
Directorate for Computer & Information Science & Engineering
Re:
Collaborative Opportunity for Research Between I/UCRCs (CORBI)
The National Science Foundation (NSF) invites supplemental requests for cooperative research projects between NSF Industry/University Cooperative Research Centers (I/UCRC). This opportunity provides the means for I/UCRCs to collaborate on projects of mutual interest that benefit the research portfolios of multiple centers. Ideally, projects proposed under this opportunity will have industrial significance and be endorsed with a portion of industry funds at centers directed to the collaboration by the Industry Advisory Boards (IAB) of each center. The proposed research should also provide the potential for transformative research that contributes to the innovative capacity of the United States.
Previously, NSF's I/UCRC program accepted unsolicited TIE proposals which served to "tie" centers together by offering grants for collaborative research efforts. CORBI formalizes this funding mechanism so as to provide all I/UCRCs with the information needed to apply for this type of opportunity. Industry Advisory Board (IAB) approval of the CORBI project is required, and a letter from the IAB chair supporting their approval must be submitted with the proposal.
Supplemental Funding Request Due Dates: February 3, 2012 by 5:00 PM, submitter's local time and first Friday in February, annually thereafter.
Eagerness for natural resources sees value of mining deals double
The global rush to secure precious natural resources continued over the past six months, with figures out today showing the value of mining deals doubled compared with 2010.
The accountancy firm Ernst & Young said the total value of deals rose to more than $96bn between January and June, up from around $48bn in the same period last year. The jump reflects a spate of big-ticket deals in the first half of 2011, the biggest of which was Barrick Gold's $7.6bn acquisition of Australia's Equinox Minerals in April, according to the data provider Dealogic. Other major transactions included Arch Coal's $3.4bn deal to buy International Coal and Newmont Mining's $2.3bn acquisition of Fronteer Gold.
But uncertainty around the prospects for the world economy and the spread of resource nationalism - something that stymied BHP Billiton's $38.6bn gambit to buy Canada's Potash Corp last year - meant that, while the overall value rose, the number of deals actually ended up falling over the first half of the year.
In all, there were 511 deals in the period, down from more than 570 last year, "reinforcing the view that while larger deals are being executed, there is still a level of uncertainty" when it comes to embarking on mergers and activity, the firm said.
The frequency could pick up as the year progresses, according to Ernst & Young partner Lee Downham. "Average mining company debt is at an all-time low while cash flow and profitability is at an all-time high," he explained. "With capital increasingly available to the sector, mining and metals companies are in a very good position to do deals."
That said, various factors were still weighing on the deal-making frenzy. "Ongoing eurozone credit issues, stagnating growth in America, uncertainty around the pace of China's growth, combined with uncertainty around the spread of resource nationalism, is making management wary and it is holding some deals back," he added.
Alongside the rise in the value of transactions, the first half of the year also saw an uptick in mining listings. The number of mining and metals initial public offerings (IPOs) was up 30 per cent, climbing to 73 between January and June, against 56 in the same period last year.
Glencore's blockbuster $10bn market debut pushed up the overall value of proceeds from new listings, which rose to $13bn from $6.3bn. The Swiss commodities trader began life as a public company in May, with a dual London and Hong Kong listing.
Eyeing what is a very strong pipeline, Mr Downham is hopeful of seeing more market debuts in the coming months. "We expect to see a significant number of mining and metals IPOs during the second half of 2011 and beyond," he said.
Department of Energy to fund renewable energy projects that feature university students
By Mikhail Zinshteyn | 07.26.11
Last Thursday, the U.S. Department of Energy announced a clean energy initiative that will award grants for entrepreneurial projects by university students.
Officially titled the National University Clean Energy Business Challenge, it would provide up $2.1 million in funding to six teams representing six regions across the U.S. The Office of Energy Efficiency and Renewable Energy, with a stated mission of reducing U.S. reliance on foreign oil and increasing funding for alternative energy, will facilitate the prizes.
In a press release, Dept. of Energy Secretary Dr. Steven Chu was quoted as saying, "Fostering innovation at America's universities and producing our nation's next generation of clean energy entrepreneurs is vital to ensuring our nation's competiveness in the clean energy economy of tomorrow.
"This investment will train a new generation of scientific and technical leaders and support the Administration's continued effort to ensure that America has the workforce we need to secure our energy future, create jobs here at home, and win the future."
All levels of university students are eligible and any student team can apply. Awarded competitions must include and enforce a criterion for competitor eligibility stating that in order to participate in the proposed regional competition; at least 50 percent of any participating team's "formal team members" must be actively enrolled in an accredited U.S. university or college.
"The goal of this initiative is to foster innovation at America's universities in order to produce our nation's next generation of clean energy entrepreneurs to ensure our nation's competiveness in the clean energy economy of tomorrow," wrote DOE public affairs official Joelle Terry. "This investment will train a new generation of scientific and technical leaders and support the Administration's continued effort to ensure that America has the workforce we need to secure our energy future, create jobs here at home, and win the future."
DOE Energy Codes 2011 Conference Focus on Advocacy
Hello from Salt Lake City, where the U.S. Department of Energy is hosting its annual energy codes conference. This year's event has a decidedly different feel to it, as codes move from just being in the domain of building officials, to taking center stage for a number of legislative and administrative offices, energy offices, climate change task forces and advocacy groups. NEEP's Carolyn Sarno led this morning's first session on Conducting Grassroots Advocacy to advance energy codes. From the group of utility representatives, manufacturers, building trades professionals, state energy officials, advocates and others who made up the session, a couple of key themes emerged:
1. In these days of new Tea Party-led, anti-regulatory fervor, we need to return to the idea that building codes - including energy codes - are at their heart a consumer protection mechanism. Therefore, consumers and groups who deal with consumers, need to be constantly educated to the purpose and benefits of energy codes.
2. Groups to align with who can help with that consumer outreach include the insurance sector, which, as history tells us, was a driving force behind the original establishment of building codes in this country in the late 19th and early 20th centuries, particularly in response to events like the great Chicago fire. Ditto the financing industry - lenders want to know they're not throwing good money after bad. After all, controlling energy costs allows homeowners to better meet their mortgage obligations.
3. When it comes to fighting the home builders lobby and other opponents of building energy codes, it's all about the money. If builders will argue that codes add to the cost of buying a home to the point of pricing certain people out of the market, then we need to remind consumers that energy codes will, in fact, save them money - a lot of money. There are two costs to anything: the cost to buy it, and the cost to own or operate it. Since energy codes save thousands of dollars over the span of the homeowners occupancy, the economic case is overwhelmingly in favor of building energy codes.
Lastly, Carolyn in her role as facilitator of the group's discussions this morning, cited a quote from the sponsor of a bill in Maine earlier this year that would have repealed the state's new uniform building and energy code. In speaking at a hearing, this state representative said: "I find building codes morally offensive." As this comment was met with gasps and shakes of heads and other indications of exasperation I realized that such idealogues are, thankfully, in the minority in number, but, unfortunately, are often in the majority in power. Which means we all need to continue to build understanding and appreciation for building energy codes from the ground up.
Media Advisory 11-016
National Science Board to Meet July 28-29 at NSF Headquarters
For first time, meeting will be webcast
The National Science Board will webcast its upcoming meeting, July 28-29, 2011. Credit and Larger Version
July 25, 2011
The National Science Board (NSB) will meet July 28-29, 2011, to address science and engineering, as well as science, technology, engineering and mathematics (STEM) education issues of interest to the National Science Foundation (NSF). The meeting will be webcast as well.
Members of the media and the public are invited to open portions of the meeting. Please go to the Public Meeting Schedule on the NSB web site for the webcast link and full agenda.
Some of the scheduled meeting highlights are listed below.
THURSDAY, JULY 28, 2011
7:45 a.m. to 10:15 a.m. - Committee on Programs and Plans
The Committee will discuss program portfolio planning.
The Committee will receive information on:
iPlant Annual Report on Award Progress;
National Ecological Observatory Network (NEON);
Network for Earthquake Engineering Simulation (NEES);
LIGO - Data Management Plan;
IceCube - Data Management Plan; and
Gemini Cooperative Agreement.
11:15 a.m. to 12:00 p.m. - Committee on Science and Engineering Indicators
The Committee will review and discuss the Orange Book and Companion Piece topics for S&E Indicators 2012; and receive updates on Indicators Digest and the State Data Tool. Please note this meeting will be held in room 1295.
1:00 p.m. to 2:00 p.m. - Task Force on Merit Review
The Task Force will review and discuss proposed review criteria.
2:00 p.m. to 3:00 p.m. - Committee on Strategy and Budget, Task Force on Data Policies
The Task Force will discuss recommendations for changes to NSF's policies.
3:00 p.m. to 3:45 p.m. - Committee on Audit and Oversight
The Committee will discuss management and oversight of construction contingency budgeting and expenditures.
4:00 p.m. to 4:30 p.m. - Committee on Strategy and Budget
The Committee will hear updates on NSF's FY 2011 and 2012 budgets; and review and discuss approval of policy recommendation from its Task Force on Data Policies.
FRIDAY, JULY 29, 2011
8:00 a.m. to 8:45 a.m. - Committee on Education and Human Resources
The Committee will:
discuss the CEH STEM Education Prospective Horizon "Action Items;"
discuss challenges and opportunities for NSF's education agenda: Issues in developing a strategic vision for the Directorate for Education and Human Resources; and
hear updates from the Education and Human Resources Directorate on:
NSTC Committee on STEM Education,
"Successful K-12 STEM Education" report and implementation plan, and
NSF-U.S. Department of Education Institute of Education Sciences collaboration on Evidence Standards.
8:45 a.m. to 10:00 a.m. - Committee on Programs and Plans, Subcommittee on Polar Issues
The Subcommittee will hear from NSF's Office of Polar Programs updates on the NRC and Blue Ribbon Panel, United States Antarctic Program studies, interagency arctic policy coordination, and McMurdo Station resupply issues.
10:00 a.m. to 10:45 a.m. - Committee on Programs and Plans, Task Force on Unsolicited Mid-Scale Research
The Task Force will discuss its mid-scale research workshop and emerging themes.
10:45 a.m. to 11:45 a.m. - Committee on Strategy and Budget, Subcommittee on Facilities
The Subcommittee will discuss information from NSF for preparing its report to Congress on mid-scale multi-user instrumentation as required by the America COMPETES Reauthorization Act of 2010.
The NSB is the 25-member policymaking body for NSF and advisory body to the president and Congress on science and engineering issues. Drawn from industry and universities, and representing a variety of science and engineering disciplines and geographic areas, NSB members are selected for their eminence in research, education or public service, and records of distinguished service. NSB members are appointed for six-year terms. The NSF director is an ex officio member of the NSB. Learn more about the NSB and its current composition here.
Note: Reporters are invited to attend all open sessions, subject to provisions of the Government in the Sunshine Act. All sessions will be held at the NSF headquarters, 4201 Wilson Boulevard, Arlington, Va. Journalists interested in attending and covering the meeting and/or interviewing NSF or NSB officials should contact Dana Topousis at 703-292-7750 or dtopousi@nsf.gov by 5:00 p.m. on Wednesday, July 27, 2011, to make arrangements.
-NSF-
Media Contacts Dana Topousis, NSF (703) 292-7750 dtopousi@nsf.gov
Program Contacts Jennie L. Moehlmann, NSB (703) 292-7000 jmoehlma@nsf.gov
NSF 11-070 Dear Colleague Letter: United States and Ireland
The United States, Northern Ireland and the Republic of Ireland have recently renewed a unique partnership as a way of increasing the level of collaborative R&D among researchers across the jurisdictions that will generate innovation and lead to improvements in society. The agencies involved in this effort are: the National Science Foundation (U.S.), Science Foundation Ireland (Republic), Invest Northern Ireland (Northern), and the Department of Employment and Learning (Northern).
Our objective is to encourage the development and submission of transnational and collaborative research projects that address the exciting research challenges in the areas of nanotechnology, sensors, telecommunications, and energy and sustainability. These thematic areas have been identified initially as representing a unique opportunity in terms of research interests and reflect the potential for playing a meaningful role in research areas internationally recognized to be of pivotal significance for the 21st century.
Potential proposals generated as a result of this partnership should be submitted to relevant NSF programs in accordance with the program's proposal due date(s) and will be reviewed in accordance with the standard NSB-approved review criteria. No specific funding is set aside for this partnership.
The attached document describes plans for the preparation, receipt, and review of proposals, as well as the administrative processes in which the four agencies involved will cooperate in the monitoring and funding of successful proposals. The attachment can be accessed by clicking on the following link: http://www.nsf.gov/eng/general/US_Ireland_MOU.pdf. Questions regarding this partnership should be directed to: Darren Dutterer, Staff Associate, Directorate for Engineering at: dduttere@nsf.gov.
Best Regards,
Thomas W. Peterson
Assistant Director
Directorate for Engineering
Event
Hearing on the the Merit Review Process
Ensuring Limited Federal Resources Are Invested in the Best Science
July 26, 2011 10:00 AM to
July 26, 2011 12:00 PM
2318 Rayburn House Office Building
The House Committee on Science, Space, and Technology; Subcommittee on Research and Science Education is holding a hearing on the Merit Review Process: Ensuring Limited Federal Resources Are Invested in the Best Science. Witnesses: Dr. Cora Marrett, Deputy Director, NSF: Dr. Keith R. Yamamoto, Vice Chancellor for Research, University of California San Francisco; Dr. Nancy B. Jackson, President, American Chemical Society; Dr. Jorge Jose', Vice President for Research, Indiana University.
The bill contains 38 policy riders that run the gamut from a one-year stay on new and proposed U.S. EPA rules for greenhouse gases and conventional pollutants to a moratorium on the Fish and Wildlife Service listing new species under the Endangered Species Act. Many of the provisions were included in the original Appropriations subcommittee draft, but others were added in committee almost exclusively by panel Republicans who say they are necessary to prevent EPA and Interior from doing irreparable harm to the economy.
More policy amendments are expected to be offered this week, with the House scheduled to take up the bill today.
Democrats on the panel and in the House say the measure is a massive overreach by appropriators who are using legislation intended to fund EPA and Interior in fiscal 2012 as a means of undermining landmark environmental laws.
Appropriations Committee ranking member Norm Dicks (D-Wash.) said Democrats this week will focus on highlighting how many environmental protections would be rolled back in the unlikely event that the bill becomes law.
"We want to get the message out there that this bill has to be changed," he said. "We hope that will inspire our friends over in the other body, the United States Senate, and the White House."
Senate Republicans have said they do not expect their chamber to pass a bill with as many policy provisions as have been proposed in the House, and the White House has threatened to veto the bill.
Dicks said Democrats will keep the bill on the floor for a long time, offering amendments to strip its riders.
"We're going to go amendment after amendment after amendment on this," he said. "Not a filibuster ... but they're going to hear a lot about a lot of issues."
"We're going to air these issues," agreed Interior and Environment Appropriations subpanel ranking member Jim Moran (D-Va.). "We're in no rush to resolve them."
Dicks said he hopes a few Democratic amendments will draw the necessary Republican support to pass, especially one to restore FWS authority to list endangered species and another that would drop the bill's stay on Bureau of Land Management plans to withdraw acreage around the Grand Canyon from future uranium mining. The rest would serve to drive home a message, he said.
"We're going to dissent," said Moran, who plans to offer amendments that would strip the bill's one-year stays on EPA regulation under the Clean Air Act and the Clean Water Act, and on mountaintop mining rules and the Grand Canyon withdrawal, among others.
"I don't want it to be just a messaging bill," he said. "I'm an appropriator. I used to be an appropriations staff person. I believe that these are important bills. But this bill should never see the light of day."
Moran predicted that the bill may not have enough votes even to pass the House, adding that the entire House Democratic caucus is likely to vote against it and some Republicans might, too, because they either think its provisions go too far or they oppose any funding for EPA.
He predicted that Republican leaders would not allocate enough time for the bill in a week when the House must also vote to increase the limit on the national debt ahead of an Aug. 2 deadline.
Clash over Simpson's role
The subcommittee chairman who took the lead in crafting the contentious bill is Rep. Mike Simpson (R-Idaho), a lawmaker with a reputation for working across party lines and for having friends on both sides of the aisle.
While Republicans were in the minority, Simpson served as ranking member when both Dicks and Moran were chairmen of the subcommittee, and both said they had a good relationship with him. But both said the bill was not a reasonable product, even leaving aside the $2.1 billion in spending cuts Republican budget allocations required Simpson to make.
"I'm personally disappointed in this bill," Dicks said. "Because I was chairman of this committee, I care about these issues."
The bill would fund Interior at $9.9 billion, $715 million less than current levels. EPA would receive $7.1 billion, about $1.5 billion below this year's levels and $1.8 billion less than the president requested for fiscal 2012.
Dicks said he was particularly disappointed in the bill's cuts for wildlife refuges, a comparatively small budget item he championed as chairman.
"This was a major retreat," he said. "Not only in funding, but all these restrictions -- all these limitations -- put in here and agreed to, is just unprecedented."
Dicks said Simpson was largely responsible, not only for including so many environmental riders in the underlying text, but for allowing Republican colleagues to add to those provisions by amendments in committee.
When he introduced his subcommittee draft earlier this month, Simpson said he had avoided including riders in the bill that dealt with issues the Natural Resources or Energy and Commerce committees had already addressed, such as new and upcoming Clean Air Act rules for air toxics and smog- and soot-forming emissions.
"Some things were just left out because the authorizing committees said that might screw up what we're trying to do in our committee," Simpson said at the time.
But Dicks and Moran note that Simpson raised no objection when other Republicans offered amendments dealing with those same rules in committee, which were added to the bill.
"Usually the subcommittee chairman will defend his bill against all the amendments, both from his side and from the Democratic side, unless it's something that everybody agrees is noncontroversial," said Dicks, adding that other subcommittee chairmen had done so this year. "This was very unusual," he said.
Simpson's office did not return calls to comment for this story.
Clout of a chairman
Jim Dornan, a longtime lobbyist on appropriations issues, said rider-laden appropriations bills like the Interior and Environment bill are a symptom of a much broader problem -- a Congress too politically polarized to legislate.
"They can't pass these bills as freestanding [legislation] anymore," he said.
Dornan said that hardening political bases in both parties and a consolidation of power within the leadership had stripped subcommittee chairmen of some of the ownership they once had over their bills.
"These are not fiefdoms anymore," Dornan said. "Those riders are not the chairman's desire in most cases. They are leadership's desire. And the chairman, if he wants to remain chairman, in most cases has to placate leadership."
Dicks and Moran said that Simpson appeared to be under pressure from leadership to include anti-regulatory riders in his bill, because they are popular with the Republican base. But they both claim they never experienced similar pressure.
"When I was subcommittee chairman, I had nobody from the leadership call me," Dicks said. "They may have called me and said, 'We have one or two things we're interested in' -- but no one called me and said 'Do this,' which is the way the appropriations committee has always worked."
Dicks said that an inability to move bills separately may actually be strengthening subcommittee chairmanships, because they control some of the only legislation Congress produces that have a good chance of becoming law.
"If a subcommittee chairman wants to really do things to undermine the existing law ... these riders all are an indication of that power," he said.
"The authorizers can't do it, nobody else can do it, but Mike Simpson can do it," he added.
Endangered Species Act
Simpson has also demonstrated that he is able to use appropriations riders strategically.
An example is the Endangered Species Act rider, which would not permit FWS to increase the level of protection of a species in fiscal 2012.
Simpson said in his remarks at both the subcommittee and committee markup of the bill that he did not intend to undermine the wildlife protection law but that by restricting its application he hoped to force stakeholders -- especially environmentalists -- to push for a reauthorization of a bill that has not been revisited for decades. The status quo was not providing that incentive, he said.
"The authorization for the ESA expired 20 years ago and the assumption has been that the Appropriations Committee would continue to fund it year in and year out," he said at the start of the full committee markup.
"That's not how the process is supposed to work," he added.
David Conover, former Republican staff director at the Senate Environment and Public Works Committee, said Simpson was really faced with either continuing to fund a program whose authorization had expired or doing something to pressure authorizers to get their homework done.
"What makes sense about a system that just continues to fund programs with minimal oversight?" he asked.
"Mr. Simpson may be using a very blunt tool, given the species loss that we're experiencing ... but what is their better course?" Conover asked. "What's the appropriate role for appropriators? Are they supposed to be the only functioning unit of the Congress, or shouldn't authorizing committees actually do work?"
But Adam Kolton, who heads the Washington office of the National Wildlife Federation, said Simpson's rider provided little incentive for environmentalists to cooperate.
"That isn't usually the best invitation to negotiation," he said. "It's more like Pearl Harbor than it is an invitation to sit down at Reykjavik," referring to the summit that eventually led to a major nuclear disarmament treaty between the United States and Russia.
If Simpson intends to use his appropriations bill to force Congress to pass and the president to sign a bill reforming the ESA, Kolton said, it is a risky way of doing it, because Republicans will be on the record as having voted to scrap popularly supported protections for endangered species.
Copyright 2011 E&E Publishing. All Rights Reserved.
You are here: Home » Article » Sanders And Leahy promote new effort to expand Community Supported Agriculture
WASHINGTON July 26 – Vermont U.S. Sen. Bernie Sanders (I) and Patrick Leahy (D) on Tuesday introduced legislation to charter a competitive grant program within the U.S. Department of Agriculture (USDA) to promote Community Supported Agriculture (CSA).
Vermont is a leader in the successful movement that directly links consumers with the farmers who grow their food.
Since the concept first took hold 20 years ago there are now thousands of CSA farms across the country, with more than 100 farms in Vermont offering some sort of CSA program. Vermont has the highest direct sales in the nation per capita – more than five times the national average – with great potential for further growth. At the start of each growing season, members of a CSA network pay for a share of a farm’s produce. Throughout the season members receive a weekly box packed with their share of the farm’s yield for that week. CSAs are taking their place alongside backyard gardening and farmers markets. CSAs benefit farmers by providing up-front income to support the spring planting season, and consumers get the freshest local food available.
Sanders and Leahy are original cosponsors of the Community Supported Agriculture Promotion Act, S.1414, working with Sens. Kirsten Gillibrand (D-N.Y.) and Jon Tester (D-MT).
“At a time when many families are struggling to pay for food, CSAs make sure families can put local, healthy food on the table,” Sanders said. “As Vermonters have shown, linking local farmers with families creates jobs on farms and ensures that people have a healthy source of food.”
Leahy, the most senior member of the Senate Agriculture Committee, said, “Community Supported Agriculture serves farmers, families and their communities in several key ways. It links consumers to local farmers and a steady source of healthy food, while helping to keep local food and farmland available. These partnerships are part of the renaissance we are seeing in Vermont agriculture. Vermont’s farming community is creatively building networks on the CSA model to meet Vermonters’ needs. CSA is one of the engines that is creating new opportunities for economic development and jobs in Vermont’s food and farm sector.”
The competitive grant program proposed by Sanders, Leahy, Gillibrand and Tester would authorize grants to nonprofit organizations, extension services and state and local agencies to provide support infrastructure to growers, ranging from marketing and business assistance to help in developing innovative delivery and distribution programs and widening CSA participation through outreach and education efforts. The grant program would also give preference to projects linked to family farms, farms operated by or employing veterans, and networks that expand CSA reach into where low-income communities that have poor access to healthy, affordable and fresh foods in retail grocery stores.
NSF 11-022 Dear Colleague Letter for the Science, Engineering and Education for Sustainability (SEES) NSF-Wide Investment Area
Achieving a sustainable human future in the face of both gradual and abrupt environmental change is one of the most significant challenges facing humanity. NSF will contribute to addressing this challenge by supporting the science and engineering research needed to understand and overcome the barriers to sustainable human well-being. In response to this global challenge, all eleven NSF Directorates and Offices have joined together to support Science, Engineering, and Education for Sustainability (SEES). The purpose of this DCL is to explain the scope of the SEES investment area, alert the community to activities that are being planned for the near term, and point to sources of additional information about future SEES plans.
Through SEES, NSF seeks to enable the discoveries needed to inform actions that lead to environmental, energy and societal sustainability. SEES will include the conceptual, theoretical, empirical, and computational research needed to further develop the basic science, engineering, education, and policy knowledge base relevant to sustainability. Additionally, it will support projects at multiple scales, from the individual to the system level, and will stimulate innovations in education and learning research and practice.
SEES is expected to be a multi-year effort that will address challenges in climate and energy research and education using a systems-based approach to understanding, predicting, and reacting to change in the linked natural, social, and built environment. In 2010, initial efforts focused on a suite of research and education programs at the intersection of climate and environment, with specific attention to incorporating human dimensions. Solicitations were released that addressed ocean acidification, water sustainability and climate, dimensions of biodiversity, earth systems modeling, and climate change education. Plans are to continue these competitions under the SEES portfolio. Future efforts will support research and education that builds connections between current projects, creates new nodes of activity, engages the public, and develops the personnel needed to understand the complexity of sustainability issues.
In FY 2011, NSF plans to encourage interdisciplinary research and education on energy sustainability, with a particular emphasis on the socioeconomic and environmental implications. Potential areas of emphases include the development of sustainable energy technologies, development of techniques for effective and efficient use of water resources, and research in transportation technology. A continued focus will be placed on creating the necessary workforce to address sustainability challenges and connecting elements of the SEES portfolio. Specific efforts will support postdoctoral researchers and early career scientists at the interfaces between social sciences and other science and engineering disciplines.
The SEES Portfolio will support research and education projects that span all eleven NSF Directorates and Offices, including:
research at the energy-environment-society nexus
novel energy production, harvesting, storage, transmission, and distribution technologies, and their intelligent control that minimizes environmental impact and corresponding adoption, socioeconomic, and policy issues
innovative computational science and engineering methods and systems for monitoring, understanding and optimizing life-cycle energy costs and carbon footprints of natural, social and built systems (including IT systems themselves)
data analysis, modeling, simulation, visualization, and intelligent decision-making facilitated by advanced computation to understand impacts of climate change and to analyze mitigation strategies
study of societal factors such as vulnerability and resilience, and sensitivity to regional change
short and long term research enabled by a new generation of experimental and observational networks
support for interdisciplinary education/learning science research, development, and professional capacity-building related to sustainability science and engineering
creation of research and education partnerships around forefront developments in sustainability science and engineering, both nationally and internationally
development of the workforce required to understand the complexities of environmental, energy, and societal sustainability
engaging the public to understand issues in sustainability and energy
development of the cyberinfrastructure and research instrumentation needed to enable sustainability science and engineering
support of the physical, cyber, and human infrastructure necessary to achieve SEES goals
Researchers who are interested in SEES-related topics are encouraged to consider the following near term activities, as well as periodically check the SEES web page (http://www.nsf.gov/sees) for specific guidance on future research funding opportunities:
The Dynamics of Coupled Natural and Human Systems (CNH) program is encouraging submission of projects related to SEES themes for its FY 2011 competition (NSF 10-612). CNH is jointly managed by the Biological Sciences; Geosciences; and Social, Behavioral, and Economic Sciences, while other NSF units (including the Directorate for Engineering, the Directorate for Education and Human Resources, the Office of International Science and Engineering, and the Office of Polar Programs) participate in evaluation of proposals and, when appropriate, in funding awards. The CNH program is one of many standing programs contributing to the NSF portfolio of investments for SEES.
The Catalyzing New International Collaborations program (NSF 11-508) provides support for the early phase of developing and coordinating research and education activities with foreign partner(s). These activities include, but are not limited to: planning visits, small workshops, initial data gathering activities, and the development of research coordination networks.
The Research Coordination Networks program (NSF 11-531) supports planning activities that bring together novel groupings of researchers (including education researchers and experts in public engagement) and the development of innovative methods for networking investigators working on topics related to SEES.
Where appropriate, researchers are encouraged to include support for postdoctoral researchers within new proposal submissions, especially those SEES-related projects providing opportunities to integrate the social and natural sciences.
Interdisciplinary workshops are encouraged that would help inform the development of SEES activities over the coming years. Investigators should discuss their ideas with Program Officers in the most relevant NSF core program(s) to determine the saliency of their concepts with SEES goals. See Chapter II.D.8 of the Grant Proposal Guide for information about proposals for conferences, symposia and workshops (http://www.nsf.gov/publications/pub_summ.jsp?ods_key=gpg).
Joann Roskoski, Acting Assistant Director/Directorate for Biological Sciences
Peter Arzberger, Acting Assistant Director/Directorate for Computer & Information Science and Engineering
Joan Ferrini-Mundy, Acting Assistant Director/Directorate for Education and Human Resources
Thomas Peterson, Assistant Director/Directorate for Engineering
Timothy Killeen, Assistant Director/Directorate for Geosciences
Alan Blatecky, Acting Director/Office of Cyberinfrastructure
Lance Haworth, Director/Office of Integrated Activities
Larry Weber, Director/Office of International Science and Engineering
Karl Erb, Director/Office of Polar Programs
H. Edward Seidel, Assistant Director/Directorate for Mathematical and Physical Sciences
Myron Gutmann, Assistant Director/Directorate for Social, Behavioral and Economic Sciences
Partnerships for International Research and Education (PIRE)
Directorate for Computer & Information Science & Engineering
Directorate for Education & Human Resources
Directorate for Engineering
Directorate for Geosciences
Directorate for Mathematical & Physical Sciences
Directorate for Social, Behavioral & Economic Sciences
Office of Cyberinfrastructure
Office of Integrative Activities
Office of Polar Programs
U.K. Economic and Social Research Council
UK Engineering and Physical Science Research Council
Ministry of Education and Science of the Russian Federation
Japan Science and Technology Agency
Inter-American Inst for Global Change Research
US Agency for International Development
Environmental Protection Agency
Preliminary Proposal Due Date(s) (required)(due by 5 p.m. proposer's local time):
October 19, 2011
Full Proposal Deadline(s) (due by 5 p.m. proposer's local time):
May 15, 2012
IMPORTANT INFORMATION AND REVISION NOTES
A revised version of the NSF Proposal & Award Policies & Procedures Guide (PAPPG),NSF 11-1, was issued on October 1, 2010 and is effective for proposals submitted, or due, on or after January 18, 2011. Please be advised that the guidelines contained in NSF 11-1 apply to proposals submitted in response to this funding opportunity.
Cost Sharing: The PAPPG has been revised to implement the National Science Board's recommendations regarding cost sharing. Inclusion of voluntary committed cost sharing is prohibited. In order to assess the scope of the project, all organizational resources necessary for the project must be described in the Facilities, Equipment and Other Resources section of the proposal. The description should be narrative in nature and must not include any quantifiable financial information. Mandatory cost sharing will only be required when explicitly authorized by the NSF Director. See the PAPP Guide Part I: Grant Proposal Guide (GPG) Chapter II.C.2.g(xi) for further information about the implementation of these recommendations.
Data Management Plan: The PAPPG contains a clarification of NSF's long standing data policy. All proposals must describe plans for data management and sharing of the products of research, or assert the absence of the need for such plans. FastLane will not permit submission of a proposal that is missing a Data Management Plan. The Data Management Plan will be reviewed as part of the intellectual merit or broader impacts of the proposal, or both, as appropriate. Links to data management requirements and plans relevant to specific Directorates, Offices, Divisions, Programs, or other NSF units are available on the NSF website at: http://www.nsf.gov/bfa/dias/policy/dmp.jsp. See Chapter II.C.2.j of the GPG for further information about the implementation of this requirement or refer to the Division of Materials Research (DMR) Data Management Plan which is available at http://www.nsf.gov/bfa/dias/policy/dmpdocs/dmr.pdf.
Postdoctoral Researcher Mentoring Plan: As a reminder, each proposal that requests funding to support postdoctoral researchers must include, as a supplementary document, a description of the mentoring activities that will be provided for such individuals. Please be advised that if required, FastLane will not permit submission of a proposal that is missing a Postdoctoral Researcher Mentoring Plan. See Chapter II.C.2.j of the GPG for further information about the implementation of this requirement.
Revision Summary
Only Science, Engineering, and Education for Sustainability (SEES)-focused proposals will be considered.
A single organization may submit only one preliminary proposal as the lead institution.
Full proposals will be accepted by invitation only.
Eliminates limit on the number of proposals on which a PI, co-PI or other Senior Personnel may appear.
Depending on research topic and country, additional funding for U.S. PIs or foreign collaborators may be available from these agencies: United Kingdom Engineering and Physical Sciences Research Council (EPSRC); United Kingdom Economic and Social Research Council (ESRC); Ministry of Education and Science of the Russian Federation (MES); Japan Science and Technology Agency (JST); Inter-American Institute for Global Change Research (IAI); U.S. Environmental Protection Agency (US EPA); and U.S. Agency for International Development (USAID). See section II.D. for details.
SUMMARY OF PROGRAM REQUIREMENTS
General Information
Program Title:
Partnerships for International Research and Education (PIRE)
Synopsis of Program:
Partnerships for International Research and Education (PIRE) is an NSF-wide program that supports international activities across all NSF supported disciplines. The primary goal of PIRE is to support high quality projects in which advances in research and education could not occur without international collaboration. PIRE seeks to catalyze a higher level of international engagement in the U.S. science and engineering community.
International partnerships are essential to addressing critical science and engineering problems. In the global context, U.S. researchers and educators must be able to operate effectively in teams with partners from different nations and cultural backgrounds. PIRE promotes excellence in science and engineering through international collaboration and facilitates development of a diverse, globally-engaged, U.S. science and engineering workforce.
This PIRE competition will focus exclusively on the NSF-wide investment area of Science, Engineering, and Education for Sustainability (SEES). The SEES effort focuses on interdisciplinary topics that will advance sustainability science, engineering and education as an integrative approach to the challenges of adapting to environmental, social and cultural changes associated with growth and development of human populations, and attaining a sustainable energy future. Additional details are provided in the Summary of Program Requirements below.
Cognizant Program Officer(s):
Please note that the following information is current at the time of publishing. See program website for any updates to the points of contact.
Applicable Catalog of Federal Domestic Assistance (CFDA) Number(s):
47.041 --- Engineering
47.049 --- Mathematical and Physical Sciences
47.050 --- Geosciences
47.070 --- Computer and Information Science and Engineering
47.074 --- Biological Sciences
47.075 --- Social Behavioral and Economic Sciences
47.076 --- Education and Human Resources
47.078 --- Office of Polar Programs
47.079 --- Office of International Science and Engineering
47.080 --- Office of Cyberinfrastructure
47.081 --- Office of Experimental Program to Stimulate Competitive Research
66.509 --- Environmental Protection Agency
Award Information
Anticipated Type of Award: Standard Grant or Continuing Grant
Estimated Number of Awards: 10 to 15 Pending the availability of funds.
Anticipated Funding Amount: $10,000,000 to $15,000,000 Annually, for all awards, pending the availability of funds; the average award size is expected to be approximately $4 million over 5 years.
Eligibility Information
Organization Limit:
Proposals may only be submitted by the following:
U.S. academic institutions with Ph.D.-granting programs that have awarded doctoral degrees in the 2009 or 2010 academic years in any area of research supported by NSF. Any institution not listed at http://www.nsf.gov/od/oise/pire-2012-eligible-insts.xlsx should contact PIRE Program staff regarding eligibility. Institutions that have not participated in past PIRE awards are especially encouraged to submit.
PI Limit:
None Specified
Limit on Number of Proposals per Organization: 1
A single organization may submit one preliminary proposal as the lead institution. Full proposals will be accepted by invitation only. There is no limit on the number of proposals on which an institution can participate as a partner.
Limit on Number of Proposals per PI:
None Specified
Proposal Preparation and Submission Instructions
A. Proposal Preparation Instructions
Letters of Intent: Not Applicable
Preliminary Proposals: Submission of Preliminary Proposals is required. Please see the full text of this solicitation for further information.
Full Proposals:
Full Proposals submitted via FastLane: NSF Proposal and Award Policies and Procedures Guide, Part I: Grant Proposal Guide (GPG) Guidelines apply. The complete text of the GPG is available electronically on the NSF website at: http://www.nsf.gov/publications/pub_summ.jsp?ods_key=gpg.
Full Proposals submitted via Grants.gov: NSF Grants.gov Application Guide: A Guide for the Preparation and Submission of NSF Applications via Grants.gov Guidelines apply (Note: The NSF Grants.gov Application Guide is available on the Grants.gov website and on the NSF website at: http://www.nsf.gov/publications/pub_summ.jsp?ods_key=grantsgovguide)
B. Budgetary Information
Cost Sharing Requirements: Inclusion of voluntary committed cost sharing is prohibited.
Indirect Cost (F&A) Limitations: Not Applicable
Other Budgetary Limitations: Not Applicable
C. Due Dates
Preliminary Proposal Due Date(s) (required)(due by 5 p.m. proposer's local time):
October 19, 2011
Full Proposal Deadline(s) (due by 5 p.m. proposer's local time):
May 15, 2012
Proposal Review Information Criteria
Merit Review Criteria: National Science Board approved criteria. Additional merit review considerations apply. Please see the full text of this solicitation for further information.
Award Administration Information
Award Conditions: Standard NSF award conditions apply.
Reporting Requirements: Additional reporting requirements apply. Please see the full text of this solicitation for further information.
NSF 11-073 Partnerships for International Research and Education (PIRE) (FAQs)
PIRE Program Solicitation is available on the PIRE webpage
U.S. citizenship of the PI and other researchers on the U.S. team is not required. Collaborators in other countries should be listed as Foreign Collaborators, not as PIs, Co-PIs or other Senior Personnel. Although submission is limited to one proposal per submitting institution, there is no limit on number of proposals in which researchers can participate as partners or collaborators.
What institutions are eligible?
Eligible institutions include all U.S. academic institutions with Ph.D. granting programs that have awarded doctoral degrees in the 2009 or 2010 academic years in any area of research supported by NSF. Any institution not listed at http://www.nsf.gov/od/oise/pire-2012-eligible-insts.xlsx should contact PIRE Program staff regarding eligibility. Institutions that have not participated in past PIRE awards are especially encouraged to submit. Ph.D Individuals who are affiliated with a non-Ph.D. granting institution are encouraged to work with their colleagues at Ph.D. granting institutions in developing PIRE projects; such individuals may participate in PIRE projects, as Co-PIs or Senior Personnel, with their students being supported for research related activities, and with their own institutions serving as collaborating organizations on the PIRE project via sub-Awards.
New Report Unveils Additional $5 Billion Available to California Economy
Existing solar best practices can deliver billions more to California by 2020
SAN FRANCISCO, July 25, 2011 /PRNewswire/ -- SunRun, the nation's leading home solar company, today unveiled a new study from the economic consultancy AECOM showing that simpler solar permitting processes could generate over $5 billion in additional growth for California, an increase in nearly 20 percent relative to the status quo.
"These findings are tremendous for local governments because they offer a low-cost way to add billions to the economy," said SunRun Director of Government Affairs Ethan Sprague. "Solar permitting guidelines already exist and it's just a matter of putting them to use. Governments that streamline their permitting processes sooner will generate a bigger economic impact in the long run, more permanent local jobs, and allow more families to save money by switching to solar."
The AECOM forecast also indicates that failure to adopt more efficient home solar permitting processes could jeopardize the already expected $30 billion economic gain from natural solar market growth in California.
The Week Ahead: House to consider Interior, EPA spending bill
By Andrew Restuccia - 07/25/11 08:39 AM ET
The House is slated to begin consideration this week of fiscal 2012 Interior and Environmental Protection Agency (EPA) spending legislation that includes a slew of policy riders aimed at hobbling Obama administration regulations.
The bill would prevent the EPA from regulating greenhouse gas emissions from power plants and refineries for one year.
Other policy riders include provisions preventing federal regulators from moving forward with regulations intended to protect streams from mountaintop-removal coal mining; language blocking a change in the definition of "navigable waterways" under the Clean Water Act; and a provision exempting some agriculture activities from greenhouse-gas reporting requirements.
The bill would also speed up air pollution permits for Shell Oil and other companies seeking to drill in Arctic waters off Alaska's coast and cut almost 80 percent from Land and Water Conservation Fund programs.
Overall, the bill would provide $9.86 billion for the Interior Department, a $720 million cut from current spending. It would provide $7.1 billion for the EPA, well below the agency's current-year funding of $8.7 billion.
The White House threatened to veto the legislation Thursday.
Expect a lively debate in the House this week on the bill as Republicans and Democrats battle over the policy riders and amendments offered on the floor.
The House is also expected to consider Republican-backed legislation that would force President Obama to make a decision on TransCanada's proposed Keystone XL oil pipeline by Nov. 1.
The pipeline would carry oil sands from Alberta, Canada, to refineries on the Texas Gulf Coast.
Republicans have championed the project, arguing it will create jobs and ensure that the United States is less reliant on Middle Eastern oil. But environmental groups and others have raised concerns about the possibility of oil spills and the greenhouse gas emissions associated with oil sands production.
The State Department said Friday that it would unveil a final environmental impact statement on the Keystone XL project in August and expects to make a final decision by the end of the year.
There are a number of other energy-related hearings this week.
A subcommittee of the Senate Appropriations Committee will hold a hearing Thursday on whether the federal government is prepared to deliver adequate assistance in the event of severe weather.
The Senate Energy and Natural Resources Committee will hold a hearing Thursday on the nomination of Rebecca Wodder be assistant secretary for fish and wildlife at the Interior Department. The hearing comes after about three dozen House Republicans raised concerns about Wodder's nomination, arguing that her involvement with two major conservation groups presents a conflict of interest.
Later Thursday, the Senate Energy panel's National Parks subcommittee will examine a suite of lands bills.
A panel of the House Oversight and Government Reform Committee will hold a hearing Tuesday called "Lights Out: How EPA Regulations Threaten Affordable Power and Job Creation."
The House Natural Resources Committee's Fisheries panel will hold an oversight hearing Tuesday on fishery science at the National Oceanic and Atmospheric Administration.
A casual viewer at last week's hearing in the Senate Environment and Public Works Committee would have thought Chairwoman Barbara Boxer, D-Calif., and ranking member James Inhofe, R-Okla., were superheroes for achieving a deal on a surface-transportation bill. "The fact that this committee was able to reach agreement on a bipartisan basis is nothing short of miraculous," said Sen. John Boozman, R-Ark. By contrast, House Republicans and Democrats are at loggerheads over a six-year, $230 billion surface-transportation bill.
Event
Center for Autonomic Computing (CAC) IAB Meeting
A meeting for members of the Industry/University Cooperative Research Center (I/UCRC)
October 20, 2011 8:00 AM to
October 21, 2011 1:00 PM
Biosphere 2 in Tucson, Arizona
This is a meeting of the industry advisory board and center members to assess ongoing research and set priorities for new research directions. Visitors interested in membership are welcome if they are willing to sign a non-disclosure agreement.
Last week, bipartisan legislation was introduced in the House that would restore the ability of local governments to offer Property Assessed Clean Energy (PACE) programs to finance the installation of renewable energy and energy efficiency improvements.
The bill incorporates directly into the legislation best practices and guidelines from the U.S. Department of Energy to ensure safety for homeowners, private capital providers and existing mortgage lenders.
The PACE Assessment Protection Act of 2011 (H.R. 2599), sponsored by Reps. Nan Hayworth (R-N.Y.), Dan Lungren (R-Calif.) and Mike Thompson (D-Calif.), will prevent federal housing regulators from adopting policies that contravene established state and local property assessed clean energy laws.
"It's not just a win-win situation, but win-win-win: homeowners get the benefit of lower utility bills; workers in the stagnating construction industry get jobs; and the nation gets the benefit of increased energy efficiency and reduced energy costs," said the bill sponsors in a joint statement.
The bill has been referred to the House Financial Services Committee, but a time frame for committee action has not yet been determined. NLC supports this bill and has been working with other national organizations, such as the National Association of Counties and the PACENow coalition.
"Support for this important legislation is critical for local governments, like Cleveland, to allow our residents to pay for renewable energy efficiency improvements such as geothermal HVAC and solar installations in residential and commercial districts," said Cleveland Councilman Matt Zone, chair of NLC's Energy, Environment and Natural Resources Policy and Advocacy Committee.
The PACE program allows local governments to provide funds to participating homeowners to install energy-efficiency upgrades, which are paid back over time in the form of a special assessment. Payments are typically secured by a lien on the property that gives local governments priority of repayment if the home goes into foreclosure. Twenty-seven states plus the District of Columbia have already passed legislation enabling cities and counties to pursue PACE programs.
When implemented in a community, the PACE program removes many of the barriers of energy efficiency and renewable energy retrofits for residential homeowners and businesses, particularly the high upfront cost of making such an investment and the long-term ability to reap the benefits of cost savings.
"The PACE program helps municipalities work with building and property owners to make structures sustainable and decrease their impact on the environment and our energy supply," said Zone.
Last year, the PACE program was dealt a setback when the Federal Housing Finance Agency, which oversees the nation's largest mortgage finance companies - Fannie Mae and Freddie Mac - issued a statement objecting to local governments holding the first lien on PACE homes, calling it a significant risk to the mortgage financier.
Invest in America was incorporated into SelectUSA on June 15, 2011.
SelectUSA was established by Executive Order of the President and is housed within the U.S. Department of Commerce. SelectUSA is a U.S. government-wide effort to encourage, facilitate, and accelerate business investment in the United States by both domestic and foreign firms-a major engine of economic growth and job creation.
SelectUSA provides enhanced coordination to existing resources and functions within the U.S. Department of Commerce and across all federal departments and agencies with operations relevant to business investment. It works in partnership with state, regional, and local economic development organizations to promote and facilitate overall U.S. business attraction, retention, and reshoring. SelectUSA works on behalf of the United States and exercises strict geographic neutrality.
To find more information about SelectUSA and how it assists business investment in the United States, and to view the list of federal resources available, please click here to access SelectUSA's website: www.selectusa.gov.
Invest in America was incorporated into SelectUSA on June 15, 2011.
SelectUSA was established by Executive Order of the President and is housed within the U.S. Department of Commerce. SelectUSA is a U.S. government-wide effort to encourage, facilitate, and accelerate business investment in the United States by both domestic and foreign firms-a major engine of economic growth and job creation.
SelectUSA provides enhanced coordination to existing resources and functions within the U.S. Department of Commerce and across all federal departments and agencies with operations relevant to business investment. It works in partnership with state, regional, and local economic development organizations to promote and facilitate overall U.S. business attraction, retention, and reshoring. SelectUSA works on behalf of the United States and exercises strict geographic neutrality.
To find more information about SelectUSA and how it assists business investment in the United States, and to view the list of federal resources available, please click here to access SelectUSA's website: www.selectusa.gov.
Supreme Court addresses limits on bankruptcy judges' powers
7/24/2011 COMMENTS (0)
By Patrick Scott, Esq., GrayRobinson PA*
In a 5-4 opinion delivered June 23, the U.S. Supreme Court ended litigation that had outlived all three of the parties involved: Vickie Marshall (aka Anna Nicole Smith); her husband, J. Howard Marshall II; and Howard's son Pierce Marshall.1 In doing so it has addressed in an important way the extent to which bankruptcy judges have jurisdiction over state law claims.
The decision in Stern v. Marshall is the court's most thorough assessment of the 1984 law by which Congress sought to preserve the authority of bankruptcy judges to enter judgments and final orders on state law claims that have some connection to the bankruptcy process.
The practical result of the decision is that creditors facing state law claims by a bankruptcy estate may choose between the bankruptcy judge and a district court as the fact finder in the case. Prior to the Stern decision, this option was already available to the parties in instances where a jury trial was required and in instances where the creditor had not filed a proof of claim.
The Supreme Court has now held that, constitutionally, a creditor is always entitled to have a district court judge determine the bankruptcy trustee's claims against the creditor - so long as the trustee's "counterclaim" does not arise under bankruptcy law and does not necessarily have to be determined in the process of allowing or disallowing the creditor's claim against the estate. That the creditor's claim and the trustee's claim arose from a common set of facts is irrelevant.
The issue of bankruptcy judges' power arises because they are not lifetime appointees. Article III of the Constitution vests the judicial powers only in the Supreme Court, and such inferior courts created by Congress under that article that give lifetime appointments to federal judges. The bankruptcy judgeships were created by Congress under its Article I power to make bankruptcy laws, and those judges' powers historically have been limited to the administration of bankruptcy laws.
For many years before the enactment of the present Bankruptcy Code in 1978, bankruptcy judges (called referees until 1973) could issue orders within their "summary jurisdiction" over the administration of bankruptcy cases with no independent review by a district court judge. The areas of jurisdiction within the bankruptcy judges' purview were the collection and liquidation of property; the recognition of property exemptions; the determination of the validity, priority and amount of secured and unsecured claims; and the approval of debt-composition arrangements and reorganization plans.
A litigant could appeal those decisions to the district court. However, fact findings by a bankruptcy judge could be reconsidered by a district court on appeal only if the findings were clearly erroneous.
The 1978 Code expanded bankruptcy judges' powers to include proceedings that were merely "related to" the bankruptcy case.
In 1982 the Supreme Court held in Northern Pipeline Construction Co. v. Marathon Pipe Line Co.2 that the Code could not constitutionally authorize bankruptcy judges to enter final orders upon bankruptcy trustees' breach-of-contract claims where the only relationship of the claim to the bankruptcy process was that a recovery upon the claim would augment the estate.
In response, Congress amended the jurisdictional statutes in 1984.3 The new law reaffirmed that district courts had full authority over bankruptcy cases, including matters merely "related to" bankruptcy cases,4 but authorized the district courts to "refer" all bankruptcy matters to bankruptcy judges subject to a retained right to withdraw the reference.5
The district courts promptly issued general orders or local rules referring all bankruptcy matters to the bankruptcy courts. The same law provided that bankruptcy judges may not determine what are commonly called "non-core" matters. When a litigant demanded it, a bankruptcy judge had to report the proposed ruling on non-core matters to the district judge for de novo determination.6 This effectively gave any litigant the right to choose the district court forum over the bankruptcy court forum in a non-core proceeding.
Non-core proceedings are those that are related to a bankruptcy case but are not "core" to the case. Often they invoke state law, but may invoke a federal law other than bankruptcy law. "Core" proceedings are those that either arise under the Bankruptcy Code (invoke a substantive right created by the Code) or arise in a bankruptcy case (could not exist outside of bankruptcy). The 1984 law lists 16 examples of core proceedings.7
A debate immediately arose as to whether Congress had drawn the line properly between what a bankruptcy judge may finally determine and what the bankruptcy judge may merely hear but not determine - either referring it back to the district judge or sending the district court a recommended ruling.
The Supreme Court in Granfinanciera v. Nordberg8 held that a jury trial right was available to a defendant in a fraudulent-conveyance and avoidable-preference action by a trustee, notwithstanding the 1984 law's designation of those proceedings as "core."
"Because [creditors] ... have not filed claims against the estate, [trustee's] fraudulent-conveyance action [against creditors] does not arise 'as part of the process of allowance and disallowance of claims.' Nor is that action integral to the restructuring of debtor-creditor relations," the Granfinanciera court said. "Congress therefore cannot divest [creditors] of their Seventh Amendment right to a trial by jury."9
In 1990 the Supreme Court ruled that a bankruptcy judge could decide an avoidable preference claim made by the trustee against a creditor who files a proof of claim.10
From those decisions, many practitioners have concluded that a creditor who does file a proof of claim submits to the "core" jurisdiction of the bankruptcy court to decide all manner of "counterclaims" against the creditor. This conclusion was bolstered by Congress' listing "counterclaim to a creditor's claim" as an example of core proceedings specified in Section 157(b)(2). But the Supreme Court had never decided that issue, until Stern.
The tortuous history of Stern v. Marshall, which Chief Justice John Roberts likened to the ceaseless litigation in Charles Dickens' "Bleak House," began in 1995, when Anna Nicole Smith filed suit in a Texas state court, asserting that Pierce Marshall had tortiously interfered with her elderly husband's intention to put his assets into a trust for her.
After her husband died, Smith commenced a Chapter 11 proceeding in the U.S. Bankruptcy Court for the Central District of California, even as her tortuous-interference claim continued toward trial in Texas state court. Pierce filed a proof of claim in the bankruptcy case for defamation, as well as an adversary complaint seeking a determination that his claim was nondischargeable.
Because the defamation and tortious-interference claims arose from a common set of facts, Smith counterclaimed in the bankruptcy case for Pierce's alleged tortious interference. The Bankruptcy Court struck Pierce's defenses, citing his massive discovery abuses, awarded Pierce nothing, and awarded Smith a $474 million judgment.
The U.S. District Court for the Central District of California reversed, holding that the Bankruptcy Court lacked authority to enter judgment on a state law cause of action, even though it was filed in response to a creditor's bankruptcy proof of claim. Nonetheless, under its own bankruptcy jurisdiction, the District Court entered judgment in favor of Smith for $88.5 million.
The 9th U.S. Circuit Court of Appeals reversed the District Court. It agreed that the Bankruptcy Court lacked constitutional authority. However, noting that the Texas state court had entered judgment in favor of Pierce prior to the District Court's judgment, it held that the state court judgment should have been given preclusive effect. So it directed the District Court to enter judgment in favor of Pierce. Smith appealed.
In a 5-4 opinion, the Supreme Court affirmed on the basis that no federal court with authority to decide the case had yet entered judgment as of the time the Texas court ruled in favor of Pierce.
All nine justices agreed that the wording of Section 157(b) gave the Bankruptcy Court jurisdiction over state law counterclaims filed in response to a creditor's claim. However, the majority held that Congress was not empowered by the Constitution to provide such power to bankruptcy judges to render final determinations on a common-law cause of action when the action neither derives from nor depends upon the bankruptcy law and is not necessarily resolved in the process of ruling on a creditor's proof of claim.
First, the court agreed that "core" proceedings as described in Section 157 do not overlap with "related-to" proceedings described in 28 U.S.C. § 1334. The two are mutually exclusive. "Related-to" means "non-core."
Next, it noted that Congress' enumeration of examples of core proceedings in no way defines what is constitutionally within bankruptcy judges' powers, so a more searching inquiry must be made into what authority Congress has to give powers to specialized tribunals.
The dissenting opinion written by Justice Stephen Breyer favored a broad reading of the "public rights" exception by which the Supreme Court has historically approved of non-Article III adjudicators having authority to decide issues arising in particular proceedings ranging from federal land grant commissions to the Commodity Futures Trading Commission.
Justice Roberts' majority opinion rejects the notion that the public rights exception covers trustees' compulsory state law counterclaims in a bankruptcy case. It said:
Granfinanciera's distinction between actions that seek "to augment the bankruptcy estate" and those that seek "a pro rata share of the bankruptcy res" reaffirms that Congress may not bypass Article III simply because a proceeding may have some bearing on a bankruptcy case; the question is whether the action at issue stems from the bankruptcy itself or would necessarily be resolved in the claims allowance process.11
The court looked to the nature of the debtor-in possession's claim against Pierce, saying, Smith's claim "is in no way derived from or dependent upon bankruptcy law; it is a state tort action that exists without regard to any bankruptcy proceeding."12
While Smith's counterclaim may have been a compulsory counterclaim, "there was never any reason to believe that the process of adjudicating Pierce's proof of claim would necessarily resolve [Smith's] counterclaim," the opinion said.13
The majority said:
[I]t is hard to see why Pierce's decision to file a claim should make any difference with respect to the characterization of [Smith's] counterclaim. "'[P]roperty interests are created and defined by state law,' and '[u]nless some federal interest requires a different result, there is no reason why such interests should be analyzed differently simply because an interested party is involved in a bankruptcy proceeding.'" Travelers Casualty & Surety Co. of America v.Pacific Gas & Elec. Co., 549 U.S. 443, 451 (2007) (quoting Butner v.United States, 440 U.S. 48, 55 (1979)). Pierce's claim for defamation in no way affects the nature of [Smith's] counterclaim for tortious interference as one at common law that simply attempts to augment the bankruptcy estate - the very type of claim that we held in Northern Pipeline and Granfinanciera must be decided by an Article III court.14
The majority rejected the dissenting justices' call for a more flexible analysis that takes into account the practical benefit of having the same adjudicator determine all issues that arise from a common set of facts.
Bankruptcy judges have one thing to be thankful for. The Supreme Court did not go so far as to adopt the suggestion in Justice Antonin Scalia's concurring opinion that the bankruptcy process is not a public right that can support any statutory jurisdiction for courts inferior to the Article III district courts to adjudicate any claim by a debtor or bankruptcy trustee.
Some support can be found in the Stern decision for the propositions that even fraudulent-transfer actions will not generally be considered to fall within a bankruptcy judge's power to adjudicate them and that the prospect of a large recovery is irrelevant to the determination of whether a particular state law proceeding is necessarily involved in the claims adjudication process.
However, the principal significance of the Stern decision is that it will encourage a permissible type of forum-shopping. Just as trustees and Chapter 11 debtors-in-possession typically prefer to bring actions before a bankruptcy judge, creditor-defendants most often prefer the fact finder to be a district judge.
By its ruling in Stern v. Marshall, the Supreme Court has expanded the availability of the "district judge option" to all defendants facing trustees' state law claims that are not necessarily determined in the claims adjudication process.
Notes
1 Stern v. Marshall, 131 S. Ct. 2594 (June 23, 2011).
2 458 U.S. 50 (1982).
3 Bankruptcy Amendments and Federal Judgeships Act of 1984, 98 Stat. 333.
4 28 U.S.C. § 1334(a), (b).
5 28 U.S.C. § 157(a), (d)
6 28 U.S.C. § 157(c).
7 28 U.S.C. § 157(b)(2).
8 492 U.S. 33 (1989).
9 492 U.S. at 58-59 (quoting Katchen v. Landy, 382 U.S. 323, 336 (1966)).
10 Langenkamp v. Culp, 498 U.S. 42 (1990), citing Katchen, 382 U.S. 323.
11 Stern, majority opinion at 43.
12 Id. at 34.
13 Stern, J. Scalia, concurring, at 2; the majority opinion states this in the converse at 34.
14 Stern, majority opinion at 30.
Patrick Scott is a shareholder in the Fort Lauderdale, Fla., office of GrayRobinson PA. A 32-year practitioner, he is certified in business bankruptcy law by the American Board of Certification.
SAN FRANCISCO-This county's presiding superior court judge stood at the lectern and looked out at the bank of television cameras and assembled press. She took a deep breath.
"This is the saddest and most heartwrenching day I have experienced in my professional life," said Judge Katherine Feinstein, the daughter of California's senior U.S senator.
As San Francisco's top judge, it fell to Feinstein to close the court's $13.75 million budget hole. On Monday, she announced that she was laying off 40 percent of the court's work force and shuttering 25 of 63 courtrooms and all but putting the civil division out of business.
It will now take up to five years for some lawsuits to come to trial and an average of 18 months to finalize divorces in San Francisco. Lines to pay traffic fines in person are expected to be daunting.
And it still could get worse. Feinstein warned that further cuts could be on their way in January if optimistic revenue projections don't materialize.
"We will be a shell of what we once were," she said.
San Francisco is not alone in its dramatic dismantling of its court system because of California's budget disaster.
Courts in all 58 counties are grappling with a third straight year of budget cuts that have reduced spending by an unprecedented 30 percent over that period. Hundreds of workers have been laid off across the state and thousands more placed on unpaid furloughs. Clerk's offices open late and close early and an increasing number of counties are closing courtrooms for good. Planned upgrades or replacements of decaying courthouses that serve as focal points in small-town California are being delayed, scaled back or even canceled.
"It has never been worse," said Chief Justice Tani Cantil-Sakauye, who took over as the state's top judge in January after serving as trial court judge and appellate jurist since 1990.
On Friday, embattled judicial branch leaders apportioned $350 million in cuts throughout the branch. The cuts were caused by Sacramento lawmakers slashing the courts' $3 billion budget by more than 10 percent to close California's record deficit.
The Judicial Council, which controls the courts budget, ordered trial courts to cut their budgets by almost 7 percent. It also ordered cuts to the Administrative Office of the Courts and the state's two highest courts, including the California Supreme Court.
With the exception of San Joaquin County, courts in the other 56 counties aren't making such severe cuts as San Francisco. Still, the public can expect longer lines at courthouses, longer waits for documents and frequent delays in having its day in court throughout the state.
Shasta County, for example, is limiting its clerks hours to one-day a week at a remote courthouse.
Small claim parties in the Tulelake resort area of Siskiyou County and those accused of misdemeanor crimes and infractions will now have to drive 26 miles to have their cases resolved since the closing of a courthouse there.
The story is the same throughout California. Even the Cow County Judges Institute, which is a forum for rural judges, is being canceled next year to save $25,000.
Then there's San Joaquin County, the crime-plagued capital of the Central Valley, home to Stockton, always among the top ten cities in foreclosure rates. Among other significant cuts to its overwhelmed court system, San Joaquin is planning to stop deciding all small claims cases. More than 3,000 were filed last year.
The county is pleading with state court leaders for extra funding so it can reopen its Tracy courthouse and restart hearing small claims cases.
"It's horrible for litigants," Presiding Judge Robin Appel said. "These people simply will not have their day in court."
Still, nowhere is the news as bad as it is in San Francisco. After furloughing workers, reducing hours and exhausting its reserves to meet deficits the last two years, Feinstein said San Francisco courts had few options left to close a $13.75 million deficit for the coming fiscal year.
So 11 of its 12 court commissioners and 200 of 483 workers will be let go on Sept. 30. In addition, 25 of its 61 courtrooms will be shuttered for good, leaving the city with more judges than courtrooms.
"We are judge rich and staff poor," Feinstein said.
Since criminal cases must be heard in a timely fashion to comply with speedy trial laws, all of San Francisco court closures will occur in the civil division, which will be left with only three courtrooms to conduct trials.
"The civil justice system in San Francisco is collapsing," Feinstein said. Feinstein said that when court opens for the first time Oct. 3 after the cuts go into effect "we will be a shell of what we once were."
Cantil-Sakauye has largely left it to each county to decide how to implement the cuts ordered by the Judicial Council.
That's in contrast to two years ago when the council ordered every court regardless of its finances to close one day a month. The closures caused widespread dissent and a group of council critics formed the Alliance of California Judges, which alleges that court leaders have made bad spending decisions.
The alliance took particular exception to a $1.9 billion statewide computer system that project members argue is unnecessary and problem plagued. The alliance has called for the cancellation of the project, which it says has already cost the branch about $600 million.
Instead, judicial leaders are halting funding for a year of the so-called California Court Case Management System, or CCMS.
"Once again, court leadership has decided to preserve the central bureaucracy...The one year suspension of CCMS does nothing to rectify the mismanagement, lack of oversight and waste," the alliance said in a statement."
The chief justice said the computer system "is being looked at like everything else."
In the meantime, the newly minted chief justice said she looks forward to the day where she can focus on deciding cases rather than spending her days whittling down California's judicial system.
She acknowledges that whatever budget decision she makes will upset someone.
"I do understand the frustration," she said. "I'm frustrated, too."
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Pleasant Grove Church Offers Hope
Through Education
The EF-4 tornado that swept through a residential area in April 2011 shattered this suburban town. Residents were confused and disoriented as they searched for their homes. Pleasant Grove United Methodist Church became a beacon of hope. The church organized an outreach called "Survivor School" for area families affected by the tornado.
"With the uncertainty of what the future holds and unanswered questions as to why this has happened, folks wanted to know what to do," said Pastor John Gates. "We have several other support groups in operation. So we thought it would be the thing to do, to get a support group started for individuals affected by the disaster."
"Survivor School" gives participants an opportunity to openly discuss their feelings as well as their needs. Once a week, the church has hosted sessions on steps to take in the recovery process, including dealing with grief, applying for disaster assistance, securing real estate, financial planning, and preparing for future storms.
"We have a lot of volunteer workers that do this full time. They are able to provide accurate information. We want people to know what to do," said Gates. "If a specific request is made on a certain topic, such as finding a trustworthy insurance adjustor, we try our best to honor it."
Depending on the topic for discussion, attendance has varied from 12 to 45 residents. Sessions will continue for 6 months.
Located in the western section of Jefferson County, the church has a family life center, which further enhances the ability to reach people. Pleasant Grove United Methodist has served the citizens of Pleasant Grove and the surrounding communities for over 100 years.
Additional information is available at http:// www.DisasterAssistance.gov or http://www.umcpleasantgrove.org.
Abstract:
CERCLA’s Section 113, its civil proceedings provision, does not contemplate the private cause of action context in such areas as personal jurisdiction or contribution protection. The Section directly addresses only Government claims, and SARA’s legislative history rarely even discusses the private cause of action. Courts have had to manufacture a federal common law to fill in the gaps which Congress left. The congressional silence has caused courts to strain to reconcile private claims with CERCLA’s language. Atlantic Research means that process must continue.This has led to a regression to common law principles for the CERCLA private cause of action. For personal jurisdiction, failure to provide expressly for nationwide service of process relegates the matter to the usual “minimum contacts” approach constrained by principles of state sovereignty. For joinder and related issues, SARA’s confused language encourages resort to general principles of common law embodied in the uniform acts. With little prospect for reinstituting taxes for the Superfund, the key is to find a set of realistic incentives and disincentives to encourage effective remedial action with reduced government intervention. CERCLA’s private cause of action will continue to be a central catalyst in that process.This paper is a draft of a paper to be presented at the Southwestern Law School Symposium, “CERCLA and the Future of Liability-Based Environmental Regulation,” at the Southwestern Law School on November 11, 2011.
Number of Pages in PDF File: 25
Keywords: cercla, superfund, personal jurisdiction, cost recovery, contribution
The National Science Foundation (NSF) and the Association for Computing Machinery (ACM) last week released a report that addresses a fundamental question about community colleges: why are so many of them unable to successfully secure federal funding for computing programs?
The report, "Digitally Enhancing America's Community Colleges," offers recommendations designed to spur new grant proposals, inventive initiatives and dynamic partnerships that infuse innovation into ...
Event
Center for Health Organization Transformation (CHOT) IAB Meeting
A meeting for members of the Industry/University Cooperative Research Center (I/UCRC)
September 15, 2011 8:00 AM to
September 16, 2011 5:00 PM
Northeastern University, Boston, MA
This is a bi-annual meeting of the industry advisory board and center members to assess ongoing research and set priorities for new research directions. Visitors interested in membership are welcome if they are willing to sign a non-disclosure agreement.
Directorate for Engineering
Industrial Innovation and Partnerships
Full Proposal Deadline(s) (due by 5 p.m. proposer's local time):
November 17, 2011
Please do not submit proposals prior to October 17, 2011, otherwise the proposal will be returned without review.
IMPORTANT INFORMATION AND REVISION NOTES
A revised version of the NSF Proposal & Award Policies & Procedures Guide (PAPPG),NSF 11-1, was issued on October 1, 2010 and is effective for proposals submitted, or due, on or after January 18, 2011. Please be advised that the guidelines contained in NSF 11-1 apply to proposals submitted in response to this funding opportunity.
News From the Field
Rising Oceans--Too Late to Turn the Tide?
July 14, 2011
Melting ice sheets contributed much more to rising sea levels than thermal expansion of warming ocean waters during the Last Interglacial Period, a team led by scientists at the University of Arizona has found. The results further suggest that ocean levels continue to rise long after warming of the atmosphere levels off. Full Story
Source
University of Arizona
Title: Dear Colleague Letter: NSF-NIST Interaction in Basic and Applied Scientific Research in BIO, ENG & MPS Date: 07/15/11 NSF 11-066 Dear Colleague Letter: NSF-NIST Interaction in Basic and Applied Scientific Research in BIO, ENG & MPS The National Science Foundation (NSF) and National Institute of Standards and Technology (NIST) have shared interests in a variety of basic and applied scientific and engineering fields. This program is designed to facilitate collaborative research and educational activities between NIST scientific and engineering staff and researchers supported by NSF. Support may be requested through use of supplemental funding requests to existing NSF awards for travel expenses and per diem associated with work on-site at NIST for NSF-supported PIs, co-PIs, post-doctoral scholars, undergraduate and graduate students and other personnel associated with the NSF-NIST collaborative research.
NSF 11-071 Frequently Asked Questions: Regarding G8 Research Councils Multilateral Funding Initiative for an
Interdisciplinary Program on Material Efficiency - A first step towards sustainable manufacturing
Directorate for Education & Human Resources Division of Undergraduate Education
Full Proposal Deadline(s) (due by 5 p.m. proposer's local time):
September 27, 2011
September 25, 2012
September 26, 2013
News From the Field Ancient Hominid Males Stayed Home While Females Roamed, Says CU-Boulder Study
June 1, 2011
The males of two bipedal hominid species that
roamed the South African savanna more than a million years ago were stay-at-home kind of guys when compared to the gadabout gals, says a new high-tech study led by the University of Colorado Boulder.
Scientists discover how "Didymo" algae bloom in pristine waters with few nutrients
Didymo is present in Rapid Creek, S.D., and in pristine streams and rivers worldwide. Credit and Larger Version
June 2, 2011
The pristine state of unpolluted waterways may be their downfall, according to research results published in a paper this week in the journal Geophysical Research Letters.
CBET 11-003 Dear Colleague Letter: The Division of Chemical, Bioengineering, Environmental, and Transport Systems (CBET) Single Annual Proposal Submission Window per Program
DATE: May 24, 2011
For the upcoming annual proposal cycle (see dates below), each NSF CBET program will have a single window, rather than two, per fiscal year for receiving unsolicited proposal. CBET will stagger its windows schedule for the four program clusters in order to balance the workload. The schedule for submitting unsolicited proposals to CBET is the following:
August 15, 2011 - September 15, 2011
Biomedical Engineering and Engineering Healthcare Cluster:
Biomedical Engineering
Biophotonics
Biosensing
General and Age Related Disabilities Engineering
Chemical, Biochemical, and Biotechnology Systems Cluster:
Biotechnology, Biochemical, and Biomass Engineering
Catalysis and Biocatalysis
Interfacial Processes and Thermodynamics
Chemical and Biological Separations
Process and Reaction Engineering
January 15, 2012 - February 17, 2012
Environmental Engineering and Sustainability Cluster:
Energy for Sustainability
Environmental Engineering
Environmental Health and Safety of Nanotechnology
Environmental Sustainability
Transport and Thermal Fluids Cluster:
Combustion, Fire, and Plasma Systems
Fluid Dynamics
Particulate and Multiphase Processes
Thermal Transport Processes
CAREER proposals are still to be submitted separately by the deadline specified in the CAREER solicitation.
IDR proposals are to be received during the unsolicited window for the primary program to which they are submitted.
Note that proposals must be received via NSF's FastLane system by 5:00 p.m. proposer's local time for the date that a window closes. Late proposals are subject to return without review.
The move to a single window per fiscal year for CBET unsolicited proposals is being made for several reasons that relate to the large number of unsolicited proposals submitted each year, which has nearly doubled in the past five years, at a time when the NSF budget is actually decreasing for FY 2011. Moving to one window is expected to decrease the number of proposals submitted each fiscal year - - because, with this change, it will not be possible to resubmit revised proposals in the same fiscal year in which they were originally submitted. We expect that the reduction in proposal numbers and the longer time between submission windows will produce several benefits including, but not limited to: a reduction in the load on our reviewer community, improved quality of proposals and reviews, improved funding rate, and enhanced opportunity for interactions between NSF staff and our community.
John McGrath Division Director, CBET Directorate for Engineering (ENG) National Science Foundation
NSF 11-058 Dear Colleague Letter: Announcement of Target Date for Submission of Proposals to Division of Physics for FY 2012 Funding Cycle
The target date for proposal submission to programs in the Division of Physics varies according to program. For proposals competing for FY 2012 (which begins October 1, 2011) funds, the target date for unsolicited proposals submitted to most programs is October 26, 2011 (except as noted below). Note that this date is one month later than has been the case in past years. For FY 2012, the Division will entertain submissions in the following areas:
Experimental Atomic Molecular and Optical Physics
Education and Interdisciplinary Research
Experimental Elementary Particle Physics
Gravitational Physics and LIGO
NSF/DOE Partnership in Basic Plasma Science and Engineering (Apply to NSF 09-596)
Experimental Nuclear Physics
Particle and Nuclear Astrophysics
Physics at the Information Frontier (Target Date is November 18, 2011)
Physics of Living Systems (Target Date is July 31, 2011)
Theoretical Atomic Molecular and Optical Physics
Theoretical Nuclear Physics
Mathematical Physics
Theoretical Elementary Particle Physics (Target Date is December 1, 2011)
Theoretical Particle Astrophysics and Cosmology (Target Date is December 1, 2011)
NSF 11-054 Dear Colleague Letter: Supplemental Opportunity for Research Experiences for Veterans (REV)
The National Science Foundation recognizes that Veterans represent a potential underutilized workforce for America's research and industrial communities. The Industrial Innovation and Partnerships Division (IIP) of the Engineering Directorate (ENG) at the National Science Foundation (NSF) is now accepting supplemental requests to conduct Research Experiences for Veterans (REV). The proposed REVs will afford Veterans an opportunity to intern either at an active Industry/University Cooperative Research Center (I/UCRC) university site, or at an active I/UCRC member company.
Recommendations from NSF's Engineering Education Center Division Workshop entitled "Veterans' Education for Engineering and Science" in April 2009 stated "NSF and other federal science and engineering agencies should create an education/career development program focused on getting veterans into science and technology careers. NSF and the other federal agencies have long experience sponsoring education research and activities. The cost to expand and enrich such programs is a small fraction of the cost of the post-9/11 Veterans educational benefit. Yet by expanding it, the community could engage a significant number of veterans with the potential to pursue careers in fields of engineering, science and technology."
PI Eligibility: All active I/UCRC grantees
Anticipated type of award: Supplement to existing I/UCRC awards
Supplement Preparation and Submission instructions: The REV supplement will be a modified Research Experiences for Undergraduates (REU) supplement specifically for U.S. veterans that are classified as full-time students at U.S. Universities active in the I/UCRC program. The REV is not transferrable to the Veterans' dependants.
Supplemental funding requests must be submitted by 5:00 pm, submitter's local time, Friday, June 3, 2011. via the NSF FastLane system and follow the guidelines of the most current solicitation for Research Experiences for Undergraduates, found at http://www.nsf.gov/publications/pub_summ.jsp?WT.z_pims_id=5517&ods_key=nsf09598
Anticipated funding amount and Estimated Number of Awards: This pilot study will not exceed $250,000 from the current FY2011 GOALI budget. The maximum number of awards will not exceed thirty-five, and a single REV is valued at $8,000. NSF recommends the Veteran receive no less than $15 per hour for not more than 20 hours per week for four continuous months. An individual veteran is eligible for a maximum of three REV terms. Supplemental proposals will be internally evaluated per REU guidelines.
Kesh Narayanan Division Director for Industrial Innovation and Partnerships (IIP) (703) 292-8050
Don Senich Senior Academic Advisor, Industrial Innovation and partnerships (IIP) (703) 292-7082
News From the Field Splitting Water to Create Renewable Energy Simpler Than First Thought?
May 16, 2011
An international team of scientists led by a team at Monash University, Australia, has found the key to the hydrogen economy could come from a very simple mineral, commonly seen as a black stain on rocks. Full Story
Source Monash University
News From the Field Massive Tornado Onslaught Raises Questions About Building Practices, Code Enforcement
May 12, 2011
There is no practical, economic way to build structures that could stand up to the savagery of EF5 tornadoes like those that ripped through the South in late April, experts say, but damage from lesser storms could be reduced by better building practices and better enforcement of existing codes. Full Story
Source Oregon State University
NSF 11-056 Dear Colleague Letter: The Division of Molecular and Cellular Biosciences
Beginning in 2011, the Division of Molecular and Cellular Biosciences in the Directorate for Biological Sciences (BIO) will initiate new procedures, on a trial basis, for the submission and review of research proposals. BIO seeks to improve the efficiency with which it processes proposals while maintaining the highest quality of merit reviews and funding selections. The goal of these new procedures is to better manage proposal processing in the face of increasing numbers of proposals, to reduce the growing burden on the PI and reviewer community, and to improve funding rates.
As noted in the 2007 IPAMM Report1, both the number of proposals submitted to NSF per year and the number of research proposals submitted per PI has increased substantially. A significant number of NSF reviewers surveyed for the IPAMM Report indicated that overall reviewer workload had increased in the preceding three years. If anything, the intervening years have only increased both the proposal submission rate and the resulting burden on the reviewer community.
In response to this growing problem, the Division of Molecular and Cellular Biosciences is revising its procedures for submission and review of research proposals. The Division of Molecular and Cellular Biosciences (MCB) will implement an eight month cycle for proposal submission in order to give the PIs of declined proposals additional time for revision. Deadlines for full proposal submission will be: September 6, 2011, May 21, 2012 and January 28, 2013. In addition, the number of full proposals submitted per 8-month cycle by an investigator will be restricted to one proposal as a PI or co-PI. Full details about these changes can be found in the new Program Solicitation "Division of Molecular and Cellular Biosciences: Investigator-initiated research projects" (NSF 11-545) posted on the Division's web site. A set of Frequently Asked Questions (FAQs) about these changes also can be found on the Division web site.
EAGERs, RAPIDs, and conference/workshop proposals will continue to be accepted at any time. Research at Undergraduate Institutions (RUI) and Research Coordination Networks (RCN) proposals targeted to MCB should be submitted by the Division deadlines listed above. Special activities such as CAREER will continue to be governed by their own solicitations, and are NOT affected by the changes described above. Supplement requests should be submitted by February 15 to be considered for funding in the same fiscal year.
Sincerely,
Dr. Joann Roskoski Assistant Director (Acting) Directorate for Biological Sciences
Press Release 11-089 NSF Report Spotlights Opportunities to Digitally Enhance America's Community Colleges
NSF-Sponsored Summit Gathers Ideas to Craft Community College Computing Courses
Cover art for NSF-ACM report, "Digitally Enhancing America's Community Colleges." Credit and Larger Version
May 3, 2011
The National Science Foundation (NSF) and the Association for Computing Machinery (ACM) last week released a report that addresses a fundamental question about community colleges: why are so many of them unable to successfully secure federal funding for computing programs?
The report, "Digitally Enhancing America's Community Colleges," offers recommendations designed to spur new grant proposals, inventive initiatives and dynamic partnerships that infuse innovation into community college computing courses and programs.
"Significant federal funding from NSF through the Advanced Technological Education (ATE) program is available to encourage and help implement innovative computing education at the community college level," said Scott Grissom, program manager in NSF's Education and Human Resources Directorate. "However, at this point, we are not seeing the type of competitive proposals with innovative ideas and compelling stories that we had wanted. We believe this report gives community colleges the insight they need to access the funding that can make necessary changes possible."
The report, which details findings from a joint Strategic Summit on Computing Education Challenges at Community Colleges, recommends the creation and use of:
Cognitive learning research to inform course design and delivery;
Innovation in instructional design and and "anytime, anywhere" delivery through technology-based teaching and learning strategies;
Partnerships among educators with industry to produce graduates with the necessary technical and soft skills; and
Nurturing experiences in technology-related fields for students, especially females and individuals from underrepresented groups.
"The challenge here is to bring forward more innovative ideas and implement them at the community college level, to focus on what the computing field truly needs from its future employees," said John White, ACM's Chief Executive Officer. "Going forward, community colleges can help push new teaching strategies that are focused on technology, which will ensure that their students and their communities are engaged, competitive and successful."
The Summit identified a major stumbling block in computing education: "If students don't know what computing is, why would they pursue it?" Feedback from participants suggested potential actions the computing and community college communities can take to combat that low level of awareness:
Help students understand what a computing education is, and why it is a promising career path to pursue.
Actively collaborate among all education sectors as well as business and industry communities to enrich curriculum and courses.
Create well-defined curricula that positions computing as a first-choice career option.
"The unique three-prong mission of community colleges matches the unique needs of computing education; and community colleges are easily accessible for future and current computing professionals who need to update their skills to quickly adapt to the needs of today's workforce," said Elizabeth Hawthorne, chair of ACM's Summit Steering Committee, and senior professor of computer science at Union County College in Cranford New Jersey. "As community colleges across the U.S. identify ways of adapting and evolving, the report calls on these educators to focus on infusing innovation into their computing curricula and, in addition, place an emphasis on helping all their students become tech-savvy, employable citizens."
The report coincides with a growing national interest in the future of community colleges, including the White House Summit on Community College and its four regional summits held by the U.S. Department of Education, which Secretary Duncan convened " ... to ensure the vitality of our nation's economy."
The NSF-ACM report asserts that "America's community colleges have never had a higher profile or shouldered higher expectations." In the face of the extraordinary rate of technological advances and their impact on America's job force, the report makes the case that community colleges' development plans need up-to-date computing courses and initiatives if they are to meet those demands.
To ensure a broad view at the summit, ACM's Committee for Computing Education in Community Colleges convened a diverse group of 33 professionals from two-year colleges, four-year colleges and high schools. Individuals from industry and government were invited to participate in the summit and inform the results of the report.
ACM, the Association for Computing Machinery, is the world's largest educational and scientific computing society, uniting computing educators, researchers and professionals to inspire dialogue, share resources and address the field's challenges. ACM strengthens the computing profession's collective voice through strong leadership, promotion of the highest standards, and recognition of technical excellence. ACM supports the professional growth of its members by providing opportunities for life-long learning, career development, and professional networking.
About the Committee for Computing Education in Community Colleges
The Committee for Computing Education in Community Colleges is the standing committee of the ACM Education Board concerned with computing education at associate-degree granting colleges and similar post-secondary institutions throughout the world. The Committee advises the Education Board as directed on all issues concerning curriculum, pedagogy and assessment, and engages in advocacy and policy for this sector of higher education.
Protection and National Preparedness (PNP) coordinates preparedness and protection related activities throughout FEMA, including grants, planning, training, exercises, individual and community preparedness, assessments, lessons learned, continuity, and national capital region coordination.
Grant Programs
Grant Programs cover the business operations, systems, training, policy, and oversight of all FEMA grants.
National Preparedness leads the nation's efforts to enhance preparedness through a comprehensive cycle of planning, organizing and equipping, training, exercising, evaluating, and improvement planning.
Sacramento Bee: New capital center to spearhead medical research
The National Science Foundation formally opened a new world outpost on the "frontier of science" - the $52 million Center for Biophotonics Science and Technology - expected to sow publicly traded companies in the capital region.
Grantee to take their existing completed plan (or work in process) and
provide review input to transform their plan into a succinct story
for funding, with an easy to understand identified problem and solution.
We can, in effect, see the forest from the trees, for our clients,
and paint the right story to NSF specifications.
Congress Threatens To Leave D.C. Unless New Capitol Is Built
WASHINGTON, DC-Calling the current U.S. Capitol "inadequate and obsolete," Congress will relocate to Charlotte or Memphis if its demands for a new, state-of-the-art facility are not met, leaders announced Monday.
Enlarge Image
An architectural firm's proposal for a new retractable-dome capitol.
"Don't get us wrong: We love the drafty old building," Speaker of the House Dennis Hastert (R-IL) said. "But the hard reality is, it's no longer suitable for a world-class legislative branch. The sight lines are bad, there aren't enough concession stands or bathrooms, and the parking is miserable. It hurts to say, but the capitol's time has come and gone."
‘Howdy, partner,’ said Andy. He tilted Woody forward to give his pullstring a tug.
’You’re my favourite deputy.’
Vetitum tempus clausum
Responsible Stewardship
We take seriously our responsibility to the environment, our customers and suppliers, our employees, and our community.
We are in full CERCLA compliance with all applicable standards of the Comprehensive Environmental Response, Compensation & Liability Act.
We comply with all local, state, and federal laws regarding air, water, and land quality.
We have a comprehensive disaster recovery plan
We are committed to promoting employee well-being through a safe and healthy work environment, advancement opportunities, and financial security.
States may make whatever laws they wish (consistent with their State Constitutions) except as prohibited by the US Constitution. Only Laws made by Congress, which are pursuant to the Constitution, qualify as part of the General Government Law of the Land.
This Constitution, and the Laws of the United States which shall be made in Pursuance thereof … shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding. [emphasis added]
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA; et al.,
Plaintiffs - Appellees,
v.
IRON MOUNTAIN MINES, INC.; et al.,
Defendants - Appellants,
and
RHONE-POULNEC BASIC
CHEMICALS COMPANY,
Defendant - Cross-claimant -
Appellee,
BAYER CROPSCIENCE INC.’S, f/k/a
Aventis CropScience USA, Inc.,
Defendant - Counter-claimant
- Appellee.
No. 11-15383
D.C. Nos. 2:91-cv-00768-JAM
2:91-cv-01167-DFL
Eastern District of California,
Sacramento
ORDER
Before: Peter L. Shaw, Appellate Commissioner.
On April 15, 2011, the court granted the motion of appellants’ retained
counsel to withdraw as counsel of record and noted that a corporation must be
represented by counsel. The court ordered appellant Iron Mountain Mines, Inc.’s
(“Appellant Iron Mountain”) new counsel to file a notice of appearance with the
court within 28 days after the date of that order. Appellant Iron Mountain has
informed the court that it has been unable to retain counsel despite being granted
two extensions of time to do so.
Appellant Iron Mountain’s unopposed request for a third extension of time is
granted. Appellant Iron Mountain shall have one final opportunity to retain
counsel. Within 30 days after the date of this order, Appellant Iron Mountain’s
new counsel shall file a notice of appearance with the court. If no notice of
appearance is timely filed, the Clerk shall dismiss this appeal as to Appellant Iron
Mountain. See In re Highley, 459 F.2d 554, 555 (9th Cir. 1972).
Appellant Iron Mountain’s request that the court recommend or refer a
lawyer that will accept payment once Appellant Iron Mountain is funded, is denied.
A new briefing schedule shall be established upon compliance with this
order
U.S. Environmental Protection Agency
Office of International and Tribal Affairs
TRIBAL ecoAMBASSADORS PROGRAM
EPA has a new program conducting research in partnership with Tribal Colleges and Universities (TCUs). Professors from TCUs will receive funding and technical support from EPA to solve the environmental problems most important to their tribal communities.
EPA and our Tribal partners aim to promote environmental protection and improve economic opportunities by supporting Tribal environmental research.
For additional information on environmental Tribal activities, please visit the EPA Tribal website at www.epa.gov/indian
IMPORTANT DATES
Application Period: June 29th-July 29th 2011
Selected Applicants Notified: First week of August 2011
Program Orientation: Late August 2011
Program Duration: September 2011-May 2012
Final Report Published: Summer 2012
APPLICATION PROCESS
Professors can submit a proposal that includes:
Specific problem to be researched:
-What is the issue?
-What is the goal of the project?
-Itemized budget request
-Timeline
-Other resources needed for project success
Identified group of students who will support the research efforts
A course plan that would illuminate for students the various steps required to conduct research and identify implementable solutions
TRIBAL ecoAMBASSADOR DUTIES
Once selected, Tribal ecoAmbassadors will meet with EPA to begin their one year tenure. This will
include:
-Orientation led by EPA’s Headquarters or Regional Office to fully develop their proposal and finalize any logistics or technical support needed from EPA
-Quarterly check-in meetings with EPA and partners
-Publication of a report that outlines research, results, and key lessons
FREQUENTLY ASKED QUESTIONS
Q: How would an institution benefit from this program?
A: A TCU professor will have access to EPA research resources, an opportunity to develop relationships with other TCU colleagues, and financial and technical support to help publish their work.
The students gain hands-on experience with research and policymaking.
Q: Will there be a second year of this program?
A: 2011 is the pilot year of the program, and we have set aside a limited amount of funding to ensure its success on a small scale. For next year, after making any needed improvements, we intend to expand the program by selecting a larger group of Tribal ecoAmbassadors and engaging other partners to help support the program.
Targeted News Service
Targeted News Service
July 19, 2011
Rep. Edward J. Markey, D-Mass. (7th CD), issued the following news release:
Three top House Democrats today released a report indicating that audits of many states show that drinking water violations have been grossly under-reported or misreported to the U.S. Environmental Protection Agency (EPA), calling into question the current safety status of drinking water in communities across America. The report was conducted by the Government Accountability Office (GAO) and released by Reps. Henry A. Waxman (D-Calif.), Edward J. Markey (D-Mass.), and John D. Dingell (D-Mich.) of the Energy and Commerce Committee.
Under the main federal law that protects drinking water, the Safe Drinking Water Act (SDWA), most states collect and review data from community water systems, determine if violations have occurred, take enforcement action when necessary and report all violations and actions to EPA. EPA then uses this data to identify water systems that have problems meeting the health standards for drinking water, so that enforcement efforts can be directed towards those systems with the most significant issues.
However, using results of audits EPA conducted in 2007 and 2009, GAO found that states underreported or misreported hundreds of violations of drinking water standards. In 2007, an audit of fourteen states (Ark., Ariz., Ga., Ill., Kan., Md., Minn., N.D., Nev., R.I., S.C., Utah, Va., Wash.), as well as Puerto Rico, the Navajo Nation, and 3 EPA Regions, indicated that an estimated 543 health-based drinking water violations (20 percent of the total) that should have been reported to the EPA either went unreported or were inaccurately reported.
In 2009, an audit of fourteen states (Calif., Conn., Del., Fla., Hawaii, Ind., Mich., N.C., Neb., N.J., N.M., Ore., Tenn., Vt.) indicated that an estimated 778 health-based drinking water violations (26 percent of the total) that should have been reported to the EPA either went unreported or were inaccurately reported.
Because of the unreliable or incomplete data, the report says that the EPA's ability to identify water systems with the most serious problems complying with drinking water safety standards is compromised.
"GAO found that states are failing to report important safety information from EPA," said Rep. Waxman, Ranking Member of the Energy and Commerce Committee. "Rather than slashing funding for this critical public health resource, Congress should be moving legislation to improve the reporting and policing of drinking water violations."
"They say that if it ain't broke, don't fix it - but when it comes to drinking water, it turns out that all too often, EPA has no idea whether it's broke," said Rep. Markey, Ranking Member of the Natural Resources Committee and a senior member of the Energy and Commerce Committee. "To add to the problem, House Republicans have just proposed to cut $134 million dollars from the Drinking Water State Revolving Fund Program, which provides money to states and public water systems to comply with the law and increase public health protection."
"In order to truly improve our water quality and help our communities budget for water quality infrastructure, we must be able to accurately analyze the quality of our drinking water systems," said Rep. Dingell. "Fighting to protect our water quality is a responsibility to the American people that I take very seriously. Unfortunately, it is clear that EPA needs to improve their data collection efforts in relation to our drinking water systems in order to hold accountable those states that are not taking their public health responsibilities seriously enough."
* States audited did not fully and accurately report 20 percent of the health-based drinking water violations (these refer to violations of the legal limit of contaminants allowed in drinking water) that they should have provided to EPA in 2007, and 26 percent of such violations in 2009.
* In 2009, states audited did not fully and accurately report a staggering 84 percent of drinking water monitoring violations (these consist of failures to monitor drinking water, or failures to report violations to state regulators or the public, and were found to be a predictor of health-based violations) to EPA.
* From 2002-2004, audited states did not accurately report 27 percent of the enforcement actions they took against drinking water systems to EPA. Unreliable data on enforcement actions leaves EPA with no sense of whether water systems have returned into compliance and reduces EPA's ability to ensure that it is achieving its goal of targeting enforcement resources to systems that truly need it
* Incomplete and inaccurate data on violations hampers EPA's ability to identify water systems with the most serious compliance problems and impedes the agency's ability to communicate and assess its progress toward reducing public exposure to toxic chemicals in drinking water.
* EPA has in the past conducted audits that have identified state inefficiencies and poor practices and that have lead to improved data quality. However, because of funding constraints these audits have been, at least temporarily, discontinued. Additionally, EPA has not required states to take specific actions to improve data quality.
Last week, Reps. Waxman and Markey along with Sen. Barbara Boxer (D-Calif.) released another report by the GAO related to EPA's implementation of the SDWA that found that EPA has not made a determination to regulate any new drinking water contaminants, with one recent exception, since 1996. That report revealed that during the Bush administration an unusual process was used to justify a decision to not regulate the chemical perchlorate in drinking water. The report also found "systemic limitations" in how EPA identifies new contaminants for regulation. That GAO report can be found HERE .http://democrats.energycommerce.house.gov/sites/default/files/documents/GAOReport_07.12.11.pdf
Copyright Targeted News Services
TNS MJ88-110720-3494138 StaffFurigay
Copyright 2011 Targeted News Service LLCAll Rights Reserved
“When the well is dry, we learn the worth of water.”
-Benjamin Franklin
Strategic Advantage
Complex litigation and mediation/negotiation projects commonly play out like a game of chess. While rules and facts govern the actions, successful players are diligent at every turn, adjusting their strategic course to counter their opponent’s action.
“In life, as in chess, forethought wins.”
-Charles Buxton
“The first rule of sustainability is to align with natural forces, or at least not try to defy them.”
Rep. Wally Herger, R-Chico, sent a letter Wednesday to U.S. Department of Veterans Affairs Secretary Eric Shinseki asking if the delayed opening of the VA home in Redding violates a state agreement with the federal department.
In his letter, Herger noted that following the passage of a state bond measure for the construction of the 150-bed Redding VA home, as well as for one in Fresno, the state was deemed eligible to receive a federal grant to reimburse the majority of the costs for both projects.
Rocky Chavez, then acting secretary of the state Department of Veterans Affairs, signed a memorandum of understanding in March with the federal agency to receive the grant funds.
"It is my understanding that by signing the MOA, the state agreed to adequately fund the operation and maintenance of the facilities," Herger wrote in his letter to Shinseki.
However, he noted, the state's new budget delays the opening of both VA homes for the 2011-12 fiscal year.
"While I recognize the need for reducing government spending, I want to ensure that the state of California is not in violation of the provisions of the MOA it signed with the VA," Herger wrote.
Assemblyman Jim Nielsen, R-Gerber harshly criticized the state budget and the delay it will cause to the construction of the VA homes.
Nielsen has pledged to fight to keep the spring 2012 opening of the Redding VA home on schedule.
"This is not over with yet," he has said. "We will do what we can to keep it on track."
Shasta County supervisor Leonard Moty called the state's decision "despicable" at Tuesday's meeting.
"I'm quite — just appalled that they would do that," he said.
Construction began on the Knighton Road facility in late 2010 following a May groundbreaking and was scheduled to be finished, depending on the weather, in late December of this year or early January 2012.
But it became clear months ago budget problems would push back the project until March or April of next year.
With an $88 million design and construction price tag, the 155,000-square-foot facility is being built on 26 acres and eventually will include gardens, courtyards, a chapel, walking trails, dining areas, reading rooms, a bank, a general store and other features.
Once up and running, the home will employ about 244 permanent employees.
Project officials have said the facility, which will feature a homelike environment, will include 60 beds designated as residential care for the elderly, 30 memory care beds, 30 skilled nursing beds and 30 skilled nursing-memory care beds.
Project Director Wendy Roberts has said that the federal government will pay 60 percent to 65 percent of the project's construction cost with the state picking up the rest of the cost.
Ground Water Withdrawal Analysis and Permitting
Keeping our Project in the Pipeline
Staying Current in the Continually Evolving Compliance World
Materials Reuse
Waste Minimization
Keep it Clean!
We’d all prefer to protect an existing water supply than deal with the long, costly process of remediating an impaired supply and / or developing new sources. With this general principle in mind, regulatory agencies at municipal, state, and federal levels created source water protection regulations to help safeguard these precious supplies of drinking water.
Hold-ups due to environmental regulations can be expensive, time-consuming, maddening, and—in many cases—unnecessary. Regardless of your project size or scope.
Renewable Energy
Multiple Levels of Benefits
Renewable energy benefits not only the environment and your bottom line, but they can also resonate strongly with workers, existing customers, regulators, new customers, and tenants.
Strategic compliance management saves time, money, and can greatly reduce the chances of an unpleasant—and often costly—regulatory interaction.
Determining Beneficial Reuse
Pilot Testing
Local Connections Can Make All the Difference
Waste reduction program development
Contingency planning
Engineering our Best Solution—From Source to Tap
A great source of water has little value until it can be safely and efficiently delivered to the end user.
Serving Municipalities, Property Owners, and Developers
extensive experience with source water protection issues, serving:
Municipalities concerned with preserving their water resources, and
Property owners and developers seeking compliance with local, state, and federal source water protection regulations.
Assessing Technical Merit in Clear, Logical Terms
Regulatory Ties Are our Advantage
We have worked hard to develop a reputation for unbiased and technically rigorous hydrogeologic and engineering studies that consistently pass the scrutiny of local development boards, public utilities commissions, and state and federal environmental regulators.
Source Identification and Water Prospecting
State and Federal Review and Permitting Requirements
Establish a Master Plan to define short- and long-term objectives
Identify all aspects of an existing system
Use risk analysis techniques to determine critical system weaknesses
Identify project hurdles early in the process so that they can be addressed before they become critical
Craft cooperative water resource agreements, and
Develop public understanding and support of a proposed water distribution project.
Stream Studies
A High-Tech Approach to Low-Impact Design
Over the past decade, our repertoire of stream study services has expanded significantly to include projects that combine civil engineering design with low-impact design, innovation treatment technologies, and computer modeling evaluations. This high-tech approach allows us to tackle stream impact evaluations more naturally and satisfying regulatory agencies and stakeholders, while reducing your construction costs.
Traditional water supply distribution engineering involves the design, selection, and installation of water distribution system components (such as pipes, storage tanks, booster pumps, meters, valves, treatment components, etc.). Over time, and with increased understanding of the possible surface water and ground water impacts associated with water distribution, traditional engineering design and construction have evolved to become far more complex. This change has translated into increased local, state, and federal review and permitting requirements, which often include:
Procurement of easement agreements
An assessment of alternative solutions considered
Life cycle analyses of system performance
Justification for selecting the proposed solution, and
Management plans for treatment systems.
As municipal and state budgets are reduced and efficient practices and projects become more critical, municipalities are also looking to each other for cooperative and regional solutions to satisfy local water supply needs and distribution. We have experience in facilitating complex agreements that are win-win solutions for parties involved.
Analyzing and Selecting Remedial Technologies
Selecting and implementing a remedial technology is one of the most important project decisions you will make. GeoInsight has substantial experience in selecting, implementing, and maintaining diverse remedial alternatives. Our engineers, geologists, and remediation technicians can evaluate a broad spectrum of potential options and select the best remediation technology for your project. Our staff members work closely with you to thoroughly understand project objectives and endpoints, considering multiple criteria, including effectiveness, timeliness, and overall cost.
Evaluating and quantifying potential environmental concerns
Identifying possible receptors and risks
Developing appropriate risk management approaches
Implementing clean-up programs, and
Achieving site closure goals and minimizing liability exposure.
Highly-Effective Expert Services Practice
Considerable experience with the legal community and a strong working knowledge of the associated processes, methods, and administrative requirements of providing expert services
Conversancy and competency in a wide range of technical practice areas
Comprehensive knowledge of applicable regulations and associated guidance practices
Knowledge of and experience with available forensic tools/methods
Ability to communicate complex technical and regulatory concepts clearly and concisely to non-technical audiences
Ability to prepare supporting exhibits providing clear visual confirmation of a technical position.
Experience with and training in strategies associated with expert witness testimony and cross examination
Access to appreciable resources and research information, including sources of information within the regulator community, and
A project team that is devoted to spending as much time as it takes to prepare to meet litigation objectives.
Superfund document review
Regulatory negotiations – consent orders, statement of work
Development of work plans and project operation plans
Development of, and conversancy with, quality assurance/quality control, and data validation
Assisting with internal PRP group cost allocation and recovery efforts.
Productive business use
Municipal needs
Parks and recreation areas
Residential scenarios
Institutional use, and Military applications.
Sustainability
It Isn't Always Easy Being Green
Safety First: Health and Safety Training
Health and Safety
Protecting our Most Valuable Assets
Highway Safety Improvement Program
Consolidation
MAP-21 consolidates 87 programs under SAFETEA-LU to less than 30 programs. The activities for which dedicated funding has been removed have been consolidated into the very broad core programs, leaving states with the flexibility to fund these activities as they see fit.
America Fast Forward
MAP-21 builds upon the success of the TIFIA program to help communities leverage their transportation resources through federal credit assistance. The TIFIA program provides direct loans, loan guarantees, and lines of credit to large and nationally or regionally significant transportation projects with a revenue stream at terms that are more favorable than those available in the private sector and that will leverage private and other non-federal investment in transportation improvements. MAP-21 increases the funding for the TIFIA program from $122 million per year to $1 billion per year. Other modifications include: increasing the maximum share of project costs from 33 percent to 49percent; allowing TIFIA loans to be used to support a program of projects, and allowing upfront commitments of future TIFIA program dollars through the use of master credit agreements. In addition, MAP-21 sets aside $100 million per year for projects in smaller cities and rural areas under lower interest rates. The Federal Highway Administration has stated that historically every Federal dollar spent through the TIFIA program can mobilize up to $30 in transportation investments.
Performance
MAP-21 focuses the highway program on key outcomes, such as reducing fatalities, improving bridges, fixing roads, and reducing congestion, in order to ensure that taxpayers are receiving the most for their money. States will set their own targets for improving safety, road and bridge condition, congestion, and freight movement.
Accelerated Project Delivery
MAP-21 includes several provisions designed to reduce project delivery time and costs while protecting the environment. Examples of improvements include: expanding the use of innovative contracting methods; creating dispute resolution procedures; allowing for early right-of-way acquisitions; reducing bureaucratic hurdles for projects with no significant environmental impact; encouraging early coordination between relevant agencies to avoid delays later in the review process; and providing incentives for accelerating project delivery decisions within specified deadlines.
Planning
MAP-21 improves the Statewide and metropolitan planning processes to incorporate a more comprehensive performance-based approach to decision making. Utilizing performance targets will assist states and metropolitan areas in targeting limited resources on projects that will most improve the condition and performance of highways and bridges.
Other Programs
Federal Lands and Tribal Transportation Programs
- Provides funding for highway projects on Federal lands, tribal reservations, and roads that provide access to Federal lands.
- Agencies receiving funding include the National Park Service, the Forest Service, the Bureau of Indian Affairs, the Bureau of Land Management, the Army Corps of Engineers, and the Fish and Wildlife Service.
Research and Education
- Funds research and development, technology deployment, and training and education activities to further innovation in highway and bridge construction and preservation.
- Streamlines existing research programs to focus funding on key national research areas.
WASHINGTON -- When contaminants in a public water system exceed safe drinking water standards, federal environmental officials may not know about it.
An investigation requested by Congress and released Tuesday found that 14 states failed to tell – or inaccurately reported – hundreds of violations at public water systems to the Environmental Protection Agency in 2009. Those states also misreported most violations of monitoring requirements.
While states are the first line of defense on drinking water safety, the EPA relies on their data to determine when to step in and protect public health.
Three House Democrats said Tuesday that the results show the EPA needs money to improve drinking water protection. In 2009, EPA stopped auditing reporting of violations because of budget constraints.
House Republicans are proposing to slash EPA's budget.
Your tax dollars at work – EPA offers “golf swing seminar” on EPA work hours and in an EPA facility
I hadn’t planned on blogging today during my own work hours, but I’ll take a few minutes from my lunch to shine some much needed sunlight on this. Maybe I need to shut off my email to get anything done.
From the “why can’t we have fun on the taxpayer’s dime while we are destroying the economy” department. Here’s the content of an email making the rounds internally at the EPA today:
I verified the email sender as being employed within the EPA, both by name and by email headers. That person shall remain anonymous to protect their employment status from repercussions of being a whistleblower.
I verified the phone number in the golf ad as being within the EPA 308 phone group. I also verifed the room number where the golf seminar is being held, room S-4370-80 as being in an EPA facility at:
One Potomac Yard
Conference Center South (4th Floor)
Room S-4370-80
2777 S. Crystal Drive, Arlington, VA 22202
September 8th is a Thursday, a workday, 9AM-3PM are of course work hours in the “normal” non governmental world.
And finally, the Nike Golf Learning Center at Reston National is real too, see here.
What I don’t know is who is paying for this EPA golf seminar. But, now that this has seen sunlight, I’m sure some folks closer to the EPA than me will ask.
Chris Horner of ATI comments on this revelation in context to the whining about proposed budget cuts to the EPA, he writes:
Just as EPA seeks to fill the media with stories about their dire budget situtation and the horrors to befall us all if they have to take a haircut, the poor dears.
Imagine my surprise to receive, within the span of minutes, both the following news story in Energy &Environment Daily — “EPA: Jackson summons top aides for budget pow-wow as GOP sharpens knife: In the face of drastic funding cuts and a hostile political environment, U.S. EPA Administrator Lisa Jackson has told her top deputies to rank which of their programs they deem to be essential and which could fall on the budgetary chopping block” — and the following invitation, just circulated around EPA headquarters.
Just keep this in mind when the results of this “pow-wow” — ritual demagoguery and a lot of talk about children, seniors and the poor — pop in the next few days. Possibly EPA officials are worried that they might have to shelve golf clinics for the bureaucracy run wild.
“Bureaucracy run wild”. Yes, perhaps it’s time to wrangle in the EPA and remind Lisa Jackson and others at the EPA that you are beholden to the citizens of the United States, not the other way around.
Nomination of Ken Kopocis to be Assistant Administrator for the Office of Water for the Environmental Protection Agency and Rebecca Wodder to be Assistant Secretary for Fish, Wildlife and Parks for the Department of the Interior
Inhofe Hearing Statement: Hearing on Ken Kopocis and Rebecca Wodder Nominations
We are here today to consider two nominations: Ken Kopocis to be Associate Administrator of the Office of Water as well as Rebecca Wodder to be Assistant Secretary for Fish Wildlife and Parks - two key positions that will have a significant impact on regulatory policy.
First and foremost in my mind is certainly the upcoming announcement by the EPA to tighten the ozone standard, which would ruin Oklahoma’s and the broader American economy. The decision will be announced next week and I will be tracking it very closely.
Turning our attention back to the nominees, I am pleased to see Mr. Kopocis, a former EPW Committee staffer. We have worked together collegially on a number of important bills, and I know that he is someone with whom I can work.
However, the Obama-EPA’s water policies represent an aggressive, heavy handed, top down approach to regulation. Today, EPA is proposing to change completely the rights and responsibilities of individuals under the Clean Water Act through their new draft guidance. Just as the Obama-EPA is attempting to implement a backdoor cap-and-trade through regulation, they are using this water guidance document to implement the Clean Water Restoration Act. Remember, this bill was resoundingly rejected last Congress when Democrats held an overwhelming majority. It is completely inappropriate to attempt to change people’s rights and responsibilities under a law through a guidance document. I strongly oppose EPA’s actions here and sincerely hope that they listen to the 40 other members who joined me in requesting they abandon any additional actions on this document.
I do have serious concerns about Ms. Wodder’s nomination, which is a continuation of the Obama Administration’s desire to appoint left-wing extremists to senior-level positions. She is the latest in the line of Obama officials that include Carol Browner, Van Jones, and Commerce nominee John Bryson. As CEO of American Rivers, which works actively to shut down energy production in the United States, she was a staunch supporter of the Clean Water Restoration Act. She also aggressively promoted the federal regulation of hydraulic fracturing - a practice that is efficiently and effectively regulated by states and is crucial to our economic recovery and energy security.
The selection of Ms. Wodder is a clear departure from her predecessor, Tom Strickland, who in testimony before the EPW Committee said that we should actively and aggressively develop our energy resources. Unfortunately, Ms. Wodder’s support for regulatory advancement suggests that she would do the opposite, which exposes the reality of President Obama’s agenda of increasing energy prices and destroying jobs.
Today, I need your assurance that you will bring a balanced approach to the position for which you are nominated. In addition, I expect you to abide by the terms of an agreement that I worked out with Fish & Wildlife Service (FWS) Director Dan Ashe to enable his nomination to move forward. Mr. Ashe clarified that climate change is not the overarching consideration driving the Service’s day-to-day operations. He went on to state that FWS is not responsible for the regulation of greenhouse gases, nor is it the Service’s role to address these causative factors through any of its statutory or regulatory authorities. Lastly, he agreed to attend multiple stakeholder meetings in Oklahoma to discuss the impact of listing the Lesser Prairie Chicken under the Endangered Species Act. Oklahomans are rightfully concerned about this likely action as it will shut down hundreds of millions of dollars of wind development and harm private property values.
I look forward to hearing from both nominees and having the opportunity to discuss many of the concerns I have expressed about the direction of the Obama-EPA as it relates to ensuring we are taking the right approach to balancing economic and environmental needs.
Next Version of SP 800-53 to Include Privacy Component
by Eric Chabrow
"Privacy and security controls ... are complementary and mutually reinforcing in trying to achieve the privacy and security objectives of organizations," NIST Senior Computer Scientist Ron Ross says.
Next Version of SP 800-53 to Include Privacy Component
by Eric Chabrow
"Privacy and security controls ... are complementary and mutually reinforcing in trying to achieve the privacy and security objectives of organizations," NIST Senior Computer Scientist Ron Ross says.
The FBI said the suspects hacked the website of payment service PayPal, an intrusion claimed by Anonymous for halting payments to WikiLeaks, which had leaked some quarter-million diplomatic cables.
The Department of Veterans Affairs is offering a $50,000 prize to a developer who successfully demonstrates the expansion of the use of the "Blue Button" application to enable veterans to download their patient information from providers outside the VA.
Researchers unveil genome-engineering technologies capable of fundamentally re-engineering genomes from the nucleotide to the megabase scale. Treating the chromosome as both an editable and an evolvable template, the researchers have demonstrated methods to rewrite a cell's genome through powerful new tools for biotechnology, energy and agriculture.
This e-mail update was generated automatically based on your subscription to the category listed above. Some updates may belong to more than one category, resulting in duplicate messages.
Army makes big strides toward data center consolidation, enterprise e-mail Defense Systems Maj. Gen. Mark Bowman is director of architecture, operations, networks and space at the Army’s CIO office. He is responsible for establishing and implementing strategy, policy and governance for Army networks. He spoke with Defense Systems Editor-in-Chief Barry Rosenberg about data center consolidation, the migration of Army e-mail to the DISA enterprise and the CIO’s strategic vision.
NIST Proposes New Privacy Controls for Federal Information Systems and Organizations nist.gov With increasing dependency on information systems and advances in cloud computing, the smart grid and mobile computing, maintaining the confidentiality and integrity of citizens' personally identifiable information is a growing challenge. A new draft document from the National Institute of Standards and Technology (NIST) addresses that challenge by adding privacy controls to the catalog of security controls used to protect federal information and information systems.
VA Holding Blue Button Challenge; Winner Gets $50K fedscoop.com The Department of Veterans Affairs is holding a contest to see which team can build a personal health record using the Blue Button download format and arranges to install those health records on the websites of 25,000 physicians across the country.
Presidential Awards for Excellence in Science, Mathematics and Engineering Mentoring (PAESMEM)
Directorate for Education & Human Resources
Division of Undergraduate Education
Full Proposal Deadline(s) (due by 5 p.m. proposer's local time):
October 05, 2011
Application deadlines infuture years will be the first Wednesday in June
IMPORTANT INFORMATION AND REVISION NOTES
The PAESMEM program has changed from awarding grants for future efforts to awards bestowed for past work.
Former recipients of the Individual PAESMEM award are not eligible. Former recipients of the Organizational PAESMEM award may apply for the Individual award 10 years or more after receiving the award.
Eligibility has been expanded. Any U.S. citizen or permanent resident who has done exemplary, measurable mentoring is eligible, including federal employees (see below) and individuals or organizations in the private sector.
.
General Docket
United States Court of Appeals for the Ninth Circuit
Court of Appeals Docket #: 09-17411
Docketed: 10/29/2009 Termed: 02/22/2011
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
Date Filed: 04/20/2009 Date Disposed: 07/28/2009 Disposition: Denied - Judge Order
Current Cases:
None
UNITED STATES OF AMERICA
Plaintiff - Appellee,
Joan M. Pepin
Direct: 202-305-4626
[COR LD NTC Government]
DOJ - U.S. DEPARTMENT OF JUSTICE
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]
DOJ - U.S. DEPARTMENT OF JUSTICE
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]
USSAC - OFFICE OF THE U.S. ATTORNEY
Suite 10-100
501 I Street
Sacramento, CA 95814
STATE OF CALIFORNIA
Plaintiff - Appellee,
Russell B. Hildreth
Direct: 916-327-7853
[LD NTC Dep State Aty Gen]
AGCA - OFFICE OF THE CALIFORNIA ATTORNEY GENERAL (SAC)
1300 I Street
P.O. Box 944255
Sacramento, CA 94244-2550
Margarita Padilla, Supervising Deputy Attorney General
Direct: 510-622-2135
[COR NTC Dep State Aty Gen]
AGCA - OFFICE OF THE CALIFORNIA ATTORNEY GENERAL (OAKLAND)
20th Floor
1515 Clay Street
Oakland, CA 94612-0550
WILLIAM A. LOGAN, Jr.
Appellant,
William A. Logan, Jr.
Direct: 925-945-6792
[NTC Pro Se]
Logan & Giles LLP
2175 N. California Blvd.
Suite 805
Walnut Creek, CA 94596
LOGAN & GILES LLP
Appellant,
William A. Logan, Jr.
Direct: 925-945-6792
[COR LD NTC Retained]
Logan & Giles LLP
2175 N. California Blvd.
Suite 805
Walnut Creek, CA 94596
v.
IRON MOUNTAIN MINES
Defendant,
RHONE-POULNEC BASIC CHEMICALS COMPANY
Defendant,
BAYER CROPSCIENCE, INC., FKA Aventis CropScience USA, Inc.
Defendant,
T. W. ARMAN
Defendant - Appellant,
William A. Logan, Jr.
Direct: 925-945-6792
[COR LD NTC Retained]
(see above)
UNITED STATES OF AMERICA; STATE OF CALIFORNIA,
Plaintiffs - Appellees,
v.
WILLIAM A. LOGAN, Jr.; LOGAN & GILES LLP,
Appellants,
v.
IRON MOUNTAIN MINES; RHONE-POULNEC BASIC CHEMICALS COMPANY; BAYER CROPSCIENCE, INC., FKA Aventis CropScience USA, Inc.,
Date Filed: 04/20/2009 Date Disposed: 07/28/2009 Disposition: Denied - Judge Order
Current Cases:
None
UNITED STATES OF AMERICA
Plaintiff - Appellee,
Joan M. Pepin
Direct: 202-305-4626
[COR LD NTC Government]
DOJ - U.S. DEPARTMENT OF JUSTICE
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]
DOJ - U.S. DEPARTMENT OF JUSTICE
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]
USSAC - OFFICE OF THE U.S. ATTORNEY
Suite 10-100
501 I Street
Sacramento, CA 95814
STATE OF CALIFORNIA
Plaintiff - Appellee,
Russell B. Hildreth
Direct: 916-327-7853
[LD NTC Dep State Aty Gen]
AGCA - OFFICE OF THE CALIFORNIA ATTORNEY GENERAL (SAC)
1300 I Street
P.O. Box 944255
Sacramento, CA 94244-2550
Margarita Padilla, Supervising Deputy Attorney General
Direct: 510-622-2135
[COR NTC Dep State Aty Gen]
AGCA - OFFICE OF THE CALIFORNIA ATTORNEY GENERAL (OAKLAND)
20th Floor
1515 Clay Street
Oakland, CA 94612-0550
WILLIAM A. LOGAN, Jr.
Appellant,
William A. Logan, Jr.
Direct: 925-945-6792
[NTC Pro Se]
Logan & Giles LLP
2175 N. California Blvd.
Suite 805
Walnut Creek, CA 94596
LOGAN & GILES LLP
Appellant,
William A. Logan, Jr.
Direct: 925-945-6792
[COR LD NTC Retained]
Logan & Giles LLP
2175 N. California Blvd.
Suite 805
Walnut Creek, CA 94596
v.
IRON MOUNTAIN MINES
Defendant,
RHONE-POULNEC BASIC CHEMICALS COMPANY
Defendant,
BAYER CROPSCIENCE, INC., FKA Aventis CropScience USA, Inc.
Defendant,
T. W. ARMAN
Defendant - Appellant,
William A. Logan, Jr.
Direct: 925-945-6792
[COR LD NTC Retained]
(see above)
UNITED STATES OF AMERICA; STATE OF CALIFORNIA,
Plaintiffs - Appellees,
v.
WILLIAM A. LOGAN, Jr.; LOGAN & GILES LLP,
Appellants,
v.
IRON MOUNTAIN MINES; RHONE-POULNEC BASIC CHEMICALS COMPANY; BAYER CROPSCIENCE, INC., FKA Aventis CropScience USA, Inc.,
Words that everyone once used are now obsolete, and so are the men whose names were once on everyone's lips: Camillus, Caeso, Volesus, Dentatus, and to a lesser degree Scipio and Cato, and yes, even Augustus, Hadrian, and Antoninus are less spoken of now than they were in their own days. For all things fade away, become the stuff of legend, and are soon buried in oblivion. Mind you, this is true only for those who blazed once like bright stars in the firmament, but for the rest, as soon as a few clods of earth cover their corpses, they are 'out of sight, out of mind.' In the end, what would you gain from everlasting remembrance? Absolutely nothing. So what is left worth living for? This alone: justice in thought, goodness in action, speech that cannot deceive, and a disposition glad of whatever comes, welcoming it as necessary, as familiar, as flowing from the same source and fountain as yourself. (IV. 33, trans. Scot and David Hicks)
errare humanum est, sed perseverare diabolicum 'to err is human, but to persist is diabolical.'
Marcus Aurelius
Clean Water:
Foundation of
Healthy Communities and
a Healthy Environment April 27, 2011
The February 2011 report, “America’s Great Outdoors: A Promise to Future Generations” (AGO report) recommends expanding incentives such as certainty agreements to achieve the goals of improved water quality and continued implementation of voluntary conservation practices. A similar approach is commonly used for conserving wildlife through “Safe Harbor Agreements” and similar approaches in which landowners who agree to undertake stewardship practices on their lands over an extended period of time receive assurances – or “certainty” – that they would not be subject to additional regulation or different management activities under the Endangered Species Act. Now, USDA and EPA are exploring with states and other partners ways in which this innovative approach could be adapted to improve water quality by fostering greater adoption of conservation activities on farms.
California Bay-Delta
California’s Sacramento/San Joaquin River Delta-San Francisco Bay Estuary (Bay-Delta) is among the most important estuary ecosystems in the Nation and is the hub of the country’s largest water delivery system, providing drinking water to 25 million people. The Bay-Delta is in crisis. After decades of steep and steady decline, the ecosystem has reached a point of collapse, with some imperiled fish species at all-time low population levels and threats from climate change and associated sea-level rise, seismic risks, and other stressors – such as pesticides, pollutant discharges, and invasive species – underscoring the system’s vulnerability. In December 2009, six Federal agencies issued an Interim Federal Action Plan for the Bay-Delta, describing priority Federal actions to address several of the causes of ecosystem decline and to bring greater reliability to management of water supplies in California. Led by the Council on Environmental Quality (CEQ) and DOI, these agencies are working together to build a partnership with the State of California to develop a long-term plan for ecosystem restoration and water management in the Bay-Delta. Through this plan, Federal agencies will promote water conservation and efficiencies, investigate Bay-Delta water quality and other stressors, provide drought assistance to farmers, and improve flood risk management.
Ensuring Water Quality to Protect Public Health
Drinking water is a basic human need. The Obama Administration is working to reduce contaminants in water and to protect the quality of the water supplies that are the source of drinking water.
Addressing Critical Contaminants in Drinking Water
In March 2010, EPA announced a new strategy to better protect public health from contaminants in drinking water. A key element of the strategy is a new effort to address contaminants in groups, rather than individually, in order to more quickly, cost-effectively, and transparently set drinking water standards to protect public health. In February 2011, EPA announced the first contaminant group and will be working to develop regulations to address up to 16 compounds of concern. In addition, EPA is working to address emerging contaminants that could present public health risks by setting a new drinking water standard for the contaminant perchlorate, enhancing efforts to gather data on 30 emerging contaminants, and determining whether to set standards for additional contaminants of potential concern. EPA is also revising standards for lead and copper and for total coliform in drinking water, and is reviewing the potential health effects of chromium-6 to determine whether revisions are needed to the existing standards for total chromium.
Promote Green Infrastructure to Upgrade Community Water/Wastewater Systems
EPA is finalizing a strategy to support the work of communities to improve the environment, protect public health, and build greener, more sustainable communities through the use of Green Infrastructure. This strategy will make green infrastructure an available tool for meeting Clean Water Act requirements in sewer permitting and plans, enforcement orders and consent decrees, and in other areas. Green Infrastructure is a win-win-win approach to environmental protection - by protecting and restoring natural landscape features (such as forests, floodplains and wetlands), communities can improve water quality while providing wildlife habitat and opportunities for outdoor recreation. EPA, other Federal agencies, and community partners are working to use lessons learned to accelerate green infrastructure implementation across the Nation.
Funding Rural Water Treatment Systems
USDA assists rural communities in ensuring that safe, clean, and reliable water and waste services are available at reasonable costs. USDA invests in modern water and waste disposal infrastructure through the Water and Waste Loan and Grant Program (WWD) to improve the quality and quantity of water in rural areas. WWD offers loans, grants, and loan guarantees to rural communities with a population of less than 10,000 for water, sanitary sewage, solid waste disposal, and storm water disposal facilities. USDA financed water, waste water, and solid waste projects reduce or eliminate harmful discharge or contamination of rivers, lakes and streams in rural areas. In the past two years, USDA has invested nearly $6 billion in loans and grants for infrastructure development, technical assistance, and training to rural communities. In addition to providing safe drinking water, improving wastewater treatment systems, and protecting the environment, these investments help bring increased economic benefits to rural America and create jobs.
Updating the Nation’s Water Policies and Regulations
The Obama Administration is committed to maintaining strong and clear standards for protecting waters, and ensuring that Federal agencies consider social, economic and environmental needs in a transparent and consistent way when making new Federal investments in water projects.
Clean Water Act Draft Guidance on the Scope of Waters Protected
The USACE and EPA have released draft guidance to clarify which waters and wetlands are protected by the Clean Water Act. The revised draft guidance will provide predictable, consistent, and effective protection of waters that many communities depend upon for drinking, swimming, and fishing. The agencies’ guidance also provides clearer, less burdensome guidelines for the public that make it easier and simpler to determine whether a particular water body is protected. The revised guidance is fully consistent with the Act, applicable regulations, and key Supreme Court decisions in 2001 and 2006. The agencies will conduct a transparent and inclusive process for developing final guidance by making sure that the public and all interested parties and organizations have the opportunity to provide input and comments. The agencies are also developing regulations to address this important topic.
Modernizing Federal Rules for Water Resources Development
CEQ is leading a collaborative, interagency effort to modernize the Principles and Guidelines which guide Federal investments in water resources. This effort will incorporate the lessons learned over the last three decades of implementation of the “Principles and Guidelines for Water and Land Related Resources Implementation Studies,” that went into effect in March 1983. Modernizing the Principles and Guidelines will ensure future Federal investments in water resources more fully consider environmental, economic and social goals in potential actions. The Administration believes that all of these effects must be weighed in evaluating Federal investments in water resources across the Federal government to promote transparency and comparability. Given the many competing demands for limited Federal resources, it is intended that future Federal investments in water resources strive to maximize public benefits, particularly in comparison to costs.
Making Better Use of Science to Solve Water Problems
Basic research into the functions and conditions of the Nation’s waters is an essential foundation for clean water. Equally important is a commitment to make effective use of scientific information to improve water programs and policies. The Obama Administration is actively making use of recent scientific information and new analytic tools to focus on emerging issues and to guide water quality programs and investments.
Understanding Emerging Water Pollutants
EPA is working to address contaminants of emerging concern in the Nation’s waters to protect public health and the environment. Much of this work is focused on strengthening scientific knowledge of emerging pollutants, for example, pharmaceuticals in waste water, to ensure that high-quality scientific information is used to develop policies. A key initiative is to evaluate current pharmaceutical disposal practices to identify how to keep unused pharmaceuticals out of waters. As scientific data is gathered and analyzed for these and other contaminants that have the potential to affect public health, EPA will continue to work with its partners and the public to ensure that America’s drinking water and rivers, streams, and lakes are protected.
Informing Responsible Development Practices for Natural Gas
As described in the Obama Administration’s Blueprint for a Secure Energy Future, recent technology and operational improvements in extracting natural gas resources, particularly shale gas, have increased gas drilling activities nationally and led to significantly higher natural gas production estimates for decades to come. To take full advantage of this important domestic energy resource, we must proactively address concerns that have been raised regarding potential negative impacts associated with hydraulic fracturing (fracking) practices. The Obama Administration is taking steps to address these concerns and ensure that natural gas production proceeds in a safe and responsible manner. EPA and DOE are leading Federal efforts to study the impacts of fracking on drinking water and surface water.
Anticipating Climate Change Impacts on Water Resources
The impacts of climate change already are forcing changes in management of water resources. Climate change may dramatically affect water supplies in some areas, impact coastal water infrastructure, wetlands and barrier islands, cause relocation of wildlife, increase wildland fires, and further spread invasive species. Federal agencies are required to develop climate adaptation plans, and Federal agencies are developing approaches for applying scientific tools to increase understanding of climate change and its impact on land and water resources. For example, DOI's eight regional Climate Science Centers and network of Landscape Conservation Cooperatives are part of a strategy to address current and future impacts of climate change on the land and water resources that DOI manages. And USDA's Forest Service has also developed a comprehensive climate change plan to “ ensure our national forests and private working lands are conserved, restored, and made more resilient to climate change, while enhancing our water resources. ” To provide leadership and organization for these efforts, CEQ, the Office of Science and Technology Policy, and the National Oceanic and Atmospheric Administration lead the Interagency Climate Change Adaptation Task Force which is developing a National Action Plan for climate adaptation of freshwater resources.
Designing Conservation Benefits Research to Focus Investments
The Farm Bill provides hundreds of millions of dollars annually to help farmers and other landowners conserve water resources. With such a significant public investment, it is vital that these funds be spent in a way that maximizes the benefits to clean water. USDA has made significant investments in improving scientific knowledge around stewardship activities on private lands. The Conservation Effects Assessment Program (CEAP) has undertaken unprecedented studies of agriculture and conservation practices in the Upper Mississippi River Basin and the Chesapeake Bay and is undertaking similar studies in other watersheds around the Nation. CEAP reports help focus investments to achieve the greatest water quality benefits and demonstrate that voluntary conservation activities – such as conservation tillage, fertilizer management, cover crops, and buffer strips – have enormous benefits to water quality when used by farmers in the right way.
Effective Stewardship of Water Resources in National Forests
The 193 million acres of the National Forest and Grassland System protect watersheds that provide drinking water to tens of millions of Americans. USDA’s Forest Service has developed a new “planning rule” to govern the management and stewardship of these lands. The proposed rule places special emphasis on conservation of water resources by requiring the Forest Service to take special measures to protect streams, rivers, and priority watersheds. For example, the proposed planning rule requires the Forest Service to develop plans for each of the National Forests and Grasslands that identify priority watersheds for restoration and maintenance; maintain, protect, or restore riparian areas; and establish minimum buffers areas around water bodies.
47.079 -- International Science and Engineering (OISE)
One of the most urgent challenges facing the world today is ensuring an adequate supply and quality of water in light of both burgeoning human needs and climate variability and change. Despite its importance to life on Earth, there are major gaps in our basic understanding of water availability, quality and dynamics, and the impact of both a changing and variable climate, and human activity, on the water system. The goal of the Water Sustainability and Climate (WSC) solicitation is to understand and predict the interactions between the water system and climate change, land use, the built environment, and ecosystem function and services through place-based research and integrative models. Studies of the water system using observations at specific sites in combination with models that allow for spatial and temporal extrapolation to other regions, as well as integration across the different processes in that system are encouraged, especially to the extent that they advance the development of theoretical frameworks and predictive understanding. Specific topics of interest include:
Determining the inputs, outputs, and potential changes in water budgets in response to both climate variability and change, and human activity, and the effect of these changes on biogeochemical cycles, water quality, long-term chemical transport and transformation, terrestrial, aquatic and coastal ecosystems, landscape evolution and human settlements and behavior.
Developing theoretical frameworks and models that incorporate the linkages and feedbacks among atmospheric, terrestrial, aquatic, oceanic, and social processes that can be used to predict the potential impact of climate variability and change, land use and human activity on water systems on decadal to centennial scales in order to provide a basis for adaptive management of water resources.
Determining how our built water systems and our governance systems can be made more reliable, resilient and sustainable to meet diverse and often conflicting needs, such as minimizing consumption of water for energy generation, industrial and agricultural production and built environment requirements, reuse for both potable and non-potable needs, ecosystem protection, and flood control and storm water management.
Proposals may establish new observational sites or utilize existing sites and facilities already supported by NSF or other federal and state agencies (e.g. USEPA, USGS).
Proposals that do not broadly integrate across the biological sciences, engineering, geosciences, and social sciences may be returned without review. Successful proposals are expected to study water systems in their entirety and to enable a new interdisciplinary paradigm in water research.
Program Information
Program Number/Title (010): 15.648 Central Valley Project Improvement (CVPI) Anadromous Fish Restoration Program (AFRP) Popular Name (020): (CVPI, AFRP) Federal Agency (030): Fish and Wildlife Service, Department of the Interior Authorization (040): Central Valley Project Improvement Act, Title 34, Public Law 102-575; Federal Grant and Cooperative Agreement Act, Public Law 97-258, 31 U.S.C. 6301-6308. Objectives (050): (a) To protect, restore, and enhance fish, wildlife, and associated habitats in the Central Valley and Trinity River basins of California; (b) To address impacts of the Central Valley Project on fish, wildlife and associated habitats; (c) To improve the operational flexibility of the Central Valley Project; (d) To increase water-related benefits provided by the Central Valley Project to the State of California through expanded use of voluntary water transfers and improved water conservation; (e) To contribute to the State of California's interim and long-term efforts to protect the San Francisco Bay/Sacramento-San Joaquin Delta Estuary; (f) To achieve a reasonable balance among competing demands for use of Central Valley Project water, including the requirements of fish and wildlife, agricultural, municipal and industrial and power contractors. Types of Assistance (060): PROJECT GRANTS Uses and Use Restrictions (070): Funds may be used for research to improve management and increase Anadromous fish resources; spawning area improvement; installation of fish passages; construction of fish protection devices, and data collection. Eligibility Requirements (080) Applicant Eligibility (081): Applicants may be State, local governments, Native American Organizations, other public nonprofit institutions/organizations, private nonprofit/organization. No other Federal agency may apply. Beneficiary Eligibility (082): General public. Credentials/Documentation (083): No Credentials or documentation are required. OMB Circular No. A-87 applies to this program. Application and Award Process (090) Preapplication Coordination (091): Preapplication coordination is not applicable. Environmental impact information is not required for this program. This program is excluded from coverage under E.O. 12372. Application Procedures (092): OMB Circular No. A-102 applies to this program. OMB Circular No. A-110 applies to this program. The application should include the project proposal and be submitted through Grants.gov. The proposal contains the narrative description and budgetary information of the project. Only information that is pertinent to the project should be included. The project proposal should also indicate whether partial funding of the project is practicable, and, if so, what specific portion(s) of the project could be implemented with what level of funding. A project proposal that is part of a longer term initiative will be considered, however, the proposed project's objectives, benefits, and tasks must stand on their own, as there are no assurances that additional funding would be awarded in subsequent years for associated or complementary projects. An incomplete proposal will not be considered for funding. Award Procedure (093): The successful applicant will be notified after selection and confirmation of available funding. An applicant should not initiate a project in expectation of USFWS funding, nor should they purchase materials or begin work until such time as they receive the final award document signed by an authorized Service official. Deadlines (094): Contact the headquarters or regional office, as appropriate, for application deadlines. Range of Approval/Disapproval Time (095): Awards are anticipated within 90 days or less. Appeals (096): Contact the headquarters or regional office. Renewals (097): Contact the headquarters or regional office. Assistance Consideration (100) Formula and Matching Requirements (101): Statutory formulas are not applicable to this program.
Matching Requirements: The matching requirement is based on the project. For specific information see the Central Valley Project Improvement Act, Section 3406 Fish, Wildlife and Habitat Restoration.
MOE requirements are not applicable to this program. Length and Time Phasing of Assistance (102): Project awards are generally from one to five years, depending on the complexity of the project and availability of funds. The five year restriction on the length of time is due to the Period of Availability of Funds limited to the five (5) year rule. See the following for information on how assistance is awarded/released: Contact the headquarters or regional office. Post Assistance Requirements (110) Reports (111): Program reports are not applicable. Cash reports are not applicable. Progress reports are not applicable. “Recipients may be required to complete and submit a Federal Financial Report (SF-425).”. Performance monitoring is not applicable. Audits (112): In accordance with the provisions of OMB Circular No. A-133 (Revised, June 27, 2003), "Audits of States, Local Governments, and Non-Profit Organizations," nonfederal entities that expend financial assistance of $500,000 or more in Federal awards will have a single or a program-specific audit conducted for that year. Nonfederal entities that expend less than $500,000 a year in Federal awards are exempt from Federal audit requirements for that year, except as noted in Circular No. A-133. Records (113): Records are required to be maintained for three years following submission of the final expenditure report. Financial Information (120) Account Identification (121): 14-1611-0-1-302. Obligations (122): (Project Grants) FY 09 $8,800,000; FY 10 $9,000,000; FY 11 $9,000,000 Range and Average of Financial Assistance (123): No Data Available. Program Accomplishments (130): Fiscal Year 2010: No Current Data Available Fiscal Year 2011: anticipated: No Update. Fiscal Year 2012: No Current Data Available Regulations, Guidelines, and Literature (140): None. Information Contacts (150) Regional or Local Office (151) : See Regional Agency Offices. Potential applicants may contact the local office at: Anadromous Fish Restoration Program Stockton Fish and Wildlife Service Office 4001 N. Wilson Way, Stockton, California 95205. Telephone: (209) 946-6400, Fax (209) 946-6355. Headquarters Office (152): Ren Lohoefner, 2800 Cottage Way, Suite W2606, Sacramento, California 95825 Phone: (916) 414-6464 Fax: (916) 414-6464. Website Address (153): http://www.delta.dfg.ca.gov/afrp/title34.asp#top . Related Programs (160): Not Applicable. Examples of Funded Projects (170): Fiscal Year 2010: No Current Data Available Fiscal Year 2011: anticipated. Fiscal Year 2012: No Current Data Available Criteria for Selecting Proposals (180): Proposals will be reviewed by a team of Federal staff based on the following criteria: Addresses high priority need as described in the Request for Proposal (RFP) "Purposes and Funding Priorities"; Clearly stated goals, objectives, hypotheses, and relevance of idea; Approach is valid and technically sound; Primary Investigators and/or subcontractors record of performance and expertise; Budget is reasonable and provides good value for funds requested; and Cost sharing or in-kind contributions.
House panel votes to bar EPA, California tailpipe rules
David Shepardson/ Detroit News Washington Bureau
The House Appropriations Committee approved an amendment Tuesday evening to bar the Environmental Protection Agency from settling vehicle tailpipe emissions limits for the 2017-25 model years, or allowing California to set its own rules.
Rep. Steve Austria, R-Ohio, proposed an amendment that would bar the EPA from setting new limits or granting a waiver to California to impose its own vehicle emissions rules. At least a dozen other states want to adopt California's rules.
The Republican panel approved the Austria amendment, 27-20.
The Obama administration and California plan to propose their own regulations for the 2017-25 by Sept. 30. The administration has proposed a fleetwide average of 56.2 mpg by 2025.
The National Automobile Dealers Association praised the amendment.
NADA said the amendment "seeks to keep cars and trucks affordable while meeting consumers' desire to protect the environment and get more out of a gallon of gasoline."
The amendment would put "a one year hold on EPA and California writing duplicative and unnecessary fuel economy regulations," NADA said.
But the amendment's future is far from certain. The Obama administration supports EPA's efforts to regulate tailpipe emissions.
Senate Democrats are unlikely to agree to bar EPA action or to block California from seeking a waiver. The chair of the Senate Environment and Public Works Committee is Sen. Barbara Boxer, D-Calif.
"New car dealers support fuel economy increases, but additional hikes in standards for model years 2017-2025, coming three years earlier than the law requires, may prevent car buyers from finding the vehicles that fit their needs at prices they can afford," the groups said.
The amendment would allow the National Highway Traffic Safety Administration to move ahead with setting Corporate Average Fuel Economy requirements for 2017-25.
The Obama administration previously has required a 40 percent boost in fuel efficiency standards for the 2012-16 model years at a cost of $51.5 billion to 34.1 mpg.
But the amendment may give automakers another argument as they hold talks with the White House over the 2017-25 rules.
Last week, Detroit's Big Three automakers held another round of technical talks over the proposals.
In our ongoing series of blog posts detailing anti-environment riders in spending bills, the following is a list of riders currently found in the Interior Appropriations Bill.
Clean Air
A rider in the Interior and Environment appropriation (Sec. 428) offered by Rep. Mike Simpson (R-ID) would prevent the Environmental Protection Agency (EPA) from limiting pollution from livestock production under the Clean Air Act.
A rider in the Interior and Environment appropriation (Sec. 429) offered by Rep. Simpson would prevent EPA from requiring the reporting of greenhouse gas emissions from manure management systems.
A rider in the Interior and Environment appropriation (Sec. 431) offered by Rep. Simpson would prevent EPA from limiting carbon pollution from power plants and other stationary sources.
A rider in the Interior and Environment appropriation (Sec. 441) offered by Rep. Simpson would permanently require EPA to accept certain state plans for enforcing the Clean Air Act even when EPA determines the state plans will not reduce pollution as the Act requires.
A rider in the Interior and Environment appropriation (Sec. 443) offered by Rep. Simpson would permanently weaken regulation of air pollution from offshore oil and gas drilling activities, particularly in Alaska. Among other things, the provision exempts certain sources of air pollution from the Clean Air Act.
A rider in the Interior and Environment appropriation (Sec. 4444(c)) offered by Rep. Simpson would prevent EPA from limiting certain kinds of pollution under the Clean Air Act and other statutes. The rider is written in such a way that its precise intent and impact are unclear, but it is based on the incorrect premise that EPA requires jurisdictions to reduce air pollution below natural background levels.
Clean Water
A rider in the Interior and Environment appropriation (Sec. 116) offered by Rep. Simpson would forbid the National Parks Service from enforcing boating regulations in the Yukon-Charley National Preserve in Alaska.
A rider in the Interior and Environment appropriation (Sec. 432) offered by Rep. Simpson would block the Department of Interior (DOI) from enforcing safeguards designed to protect streams from pollution from surface coal mining.
A rider in the Interior and Environment appropriation (Sec. 433) offered by Rep. Simpson would prevent EPA, the Army Corps of Engineers and DOI from limiting pollution and the destruction of streams from mountaintop removal coal mining.
A rider in the Interior and Environment appropriation (Sec. 434) offered by Rep. Simpson would block EPA from strengthening oversight of coal ash disposal. EPA was acting in response to the massive release of toxic coal wastes in Tennessee in 2010.
A rider in the Interior and Environment appropriation (Sec. 435) offered by Rep. Simpson would permanently block EPA from clarifying which streams and wetlands are protected by the Clean Water Act. Blocking EPA would threaten those waters, many of which are sources of drinking water and help with flood control. This is a counterpart to the provision in the Energy and Water appropriation since EPA and the Army Corps jointly enforce aspects of the Clean Water Act.
A rider in the Interior and Environment appropriation (Sec. 436) offered by Rep. Simpson would permanently block EPA from strengthening oversight of the use of water by power plants. Power plants use enormous amounts of water for cooling and then discharge it.
A rider in the Interior and Environment appropriation (Sec. 438) offered by Rep. Simpson would permanently block EPA from limiting pollution from runoff from logging roads.
A rider in the Interior and Environment appropriation (Sec. 439) offered by Rep. Simpson would require a 90-day review by Congress before EPA could strengthen limitations on pollution from urban stormwater systems.
A rider in the Interior and Environment appropriation (Title V) offered by Rep. Simpson would permanently exempt pesticide application from the Clean Water Act. Mae Wu has blogs.
Wildlife
A provision in the Interior and Environment appropriation (page 8 under the section heading "UNITED STATES FISH AND WILDLIFE SERVICE RESOURCE MANAGEMENT.") offered by Rep. Simpson (in Title I) would bar all new listings of threatened and endangered species as well as critical habitat designations for currently listed species, but would allow species to be de-listed.
A rider in the Interior and Environment appropriation (Sec. 119) offered by Rep. Simpson would permanently prohibit the courts from reviewing any delisting of gray wolves under the Endangered Species Act in Wyoming and in the upper Midwest.
Lands
A rider in the Interior and Environment appropriation (Sec. 118) offered by Rep. Simpson would make it more difficult to challenge DOI land use decisions in the courts.
A rider in the Interior and Environment appropriation (Sec. 409) offered by Rep. Simpson would make it more difficult for courts to require the Forest Service to update its land use plans.
A rider in the Interior and Environment appropriation (Sec. 437) offered by Rep. Simpson would permanently limit the ability of citizens to challenge Forest Service land use decisions in the courts.
Two riders in the Interior and Environment appropriation (Secs. 120 and 442) offered by Rep. Simpsonwould eliminate nearly all protections for bighorn sheep in the western United States for five years.
A rider in the Interior and Environment appropriation (Sec. 445) offered by Rep. Simpson
Would permanently prevent DOI and the Forest Service from declaring lands near the Grand Canyon off limits for uranium mining.
A rider in the Interior and Environment appropriation (Sec. 446) offered by Rep. SimpsonSection 446 would require the Forest Service to stop its development of Travel Management Plans in California until it considers opening trails to off-road vehicle use. The provision would also require more Forest Service roads to be open to off-road vehicles.
NRDC is tracking these riders, who's responsible and the impacts, get the latest news here.
EPA Grants Fund Low Income Projects, Training
Agency head Lisa Jackson visits Atlanta to award funding
By Mary Silver
Epoch Times Staff Created: Jul 13, 2011 Last Updated: Jul 13, 2011
ATLANTA-EPA Administrator Lisa Jackson announced on July 12 that her agency is giving $6.2 million to train unemployed people in poor neighborhoods in remediation, green building, and pollution reduction jobs. For example, "Lead, [and] asbestos remediation. That is a skill, a skill for which people pay handsomely," said Jackson.
According to Jackson, the president says all the time that the top priority of the administration is to create good jobs for Americans. Green jobs, ones that protect people from pollution, ones that "leave your neighborhood cleaner and healthier, prove what we all know is true. We don't have to choose between clean air and water and jobs."
Jackson visited Atlanta to announce the 2011 national grant recipients because a local group won $300,000, the maximum individual grant.
Khari Hunt, chief of Family Economic Success Strategies for the grant winner Center for Working Families, said the grant money "braided together with other resources, will directly impact 40 families."
Learning hazardous and solid waste remediation skills will not only allow people to make a living, but also bring homes up to modern environmental standards, he said. Better and cleaner neighborhoods will attract investment. Hunt called it "triple bang for the buck."
Having the money to remediate a polluted home could be a barrier in poor neighborhoods. Atlanta Mayor Kasim Reed said the city had begun a dialogue with the state and federal government to try to identify unallocated funds to pay for remediation of polluted individual homes. Federal funds already cover remediation of officially designated brownfields, such as former industrial sites unfit for residential use.
Jackson called Reed a "visionary leader ... ready for the next 100 years and beyond." She said the work being done in Atlanta is not just about being green, but to "return to people the quality of life they deserve."
She was referring to multiple projects.
Atlanta is developing a major system of parks from former rail lines in the city. The Beltline will connect neighborhoods and greatly increase both green space and transportation choices. It is a huge, multigenerational project, expected to transform the city.
On the Beltline, the Historic Fourth Ward (HFW), a downtown neighborhood afflicted both with poverty and floods, got a beautiful, groundbreaking park designed to handle the water problems. The government, businesses, and nonprofits collaborated to create the water-handling park, and the project saved the city millions it had planned to spend on an underground aqueduct to control the flooding. The park sparked new residential development and businesses.
Atlantic Station near Georgia Tech University was a barren brownfield, contaminated by a former steel mill. It was remediated and developed, and is now a destination rather than an eyesore.
The Environmental Workforce Development and Job Training Program has given $35 million in job training grants since 1998. According to a statement from the EPA, "6,683 individuals have been trained through the program, and more than 4,400 have been placed in full-time employment in the environmental field with an average starting hourly wage of $14.65."
Governmental and private agencies in 20 states are getting money to train people in "cleanup of contaminated sites and in health and safety, while also providing training in other environmental skills, such as recycling center operator training, green building design, energy efficiency, weatherization, solar installation, construction and demolition debris recycling, emergency response, and native plant revegetation."
After announcing the grants, Jackson visited the Southface Southeast Weatherization and Energy Efficiency Training (SWEET) Center, where the grant funded training will happen. A class was in session, learning about safe appliance venting and how to test for indoor air quality after tight weatherization. Students were learning how to use equipment to be sure heaters were vented properly and how to test for carbon monoxide, and other skills.
The center is in an old laundry with brick walls, remodeled with green techniques, of course.
Southface is a LEED Platinum-certified Eco Office, designed to use 84 percent less water than a conventional office. It has a living roof, planted with sedum, and a cistern for rainwater.
Outside the building, Jackson watched closely as teacher Benson A. Johnson demonstrated the way to weatherize a house, applying foam to a sample board to seal air leaks.
Law enforcement, community try to connect through food and talk at NAACP forum
Two of the area's top law enforcement leaders answered questions from members of Redding's small but active black community and other local residents at a Tuesday night forum.
Some 25 people sat inside the Martin Luther King Jr. Multicultural Center in Redding to hear from Redding Police Chief Peter Hansen and Shasta County Sheriff Tom Bosenko, who both came out to connect with the community.
"That's our job as leaders of our organizations," Hansen said.
The police chief and sheriff make time to visit various communities in the area to learn about the residents, their concerns and to build relationships.
"There are going to be conflicts in our community between different groups and law enforcement," Hansen said.
It's important to build those relationships ahead of time because it makes dealing with any problems potentially easier for both sides, he said.
"Trust is built through meetings likes this, through communication," Bosenko said.
Ricky Bennett, president of the local chapter of the National Association for the Advancement of Colored People, invited Hansen and Bosenko after fielding many calls from community members with questions for the local leaders, he said.
"The community is always saying they're not aware," Bennett said.
So he decided to give community members the opportunity to get those questions answered from the men who would have the answers.
Topics during the 90-minute session included ways to connect with the community, programs for teenagers and young adults, recruitment practices, gangs and the impact of funding.
Hansen said his officers are spread thin responding to emergency calls throughout the city and that affects an officer's ability to connect with the community.
"We have to become somewhat more self-reliant," he said. "All of us need to contribute to our own safety."
Because of budget cuts, Hansen said he hasn't hired a single officer in three years as chief and the neighborhood watch programs are all but gone, with the department only able to help programs with initial setup.
Hansen and Bosenko acknowledged their departments weren't representative of the community and it's difficult to change that.
"That's very frustrating because we can't get anybody to apply," Hansen said.
They also highlighted Redding and Shasta County's increased activity to thwart gang presence. Bosenko compared gangs to invasive weeds.
"Once it gets there it's very hard to get out," he said.
Hansen also addressed the issue of profiling and while everybody — police, deputies and community members — profiles in some way or another, his officers can legally act if someone is doing something illegal, he said.
"We all profile but I cannot legally act unless I see or have probable cause to suspect criminal activity," Hansen said.
Andre Hudson, vice president of the local chapter of the NAACP, said community members should make an effort to differentiate their dress styles and behaviors from gang members or other criminals.
"It starts at home," Hudson said.
Charles Peterson of Redding said the forum was very beneficial and now if he has an issue, he trusts that Hansen and Bosenko will listen.
"Trust issues in Redding are extremely important," he said. "I know these two men will believe me when I say 'this man was out of line.' "
The center also hosted a barbecue before the forum as a fundraiser for the NAACP.
It was Bennett's first community forum but after the overwhelmingly positive feedback he said he plans to hold one every month.
OFFICE OF MANAGEMENT AND BUDGET: Statement of Administration Policy: H.R. 2018 - Clean Water Cooperative Federalism Act (Rep. Mica, R-FL, and 39 cosponsors)
WASHINGTON - The Administration strongly opposes H.R 2018 because it would significantly undermine the Clean Water Act (CWA) and could adversely affect public health, the economy, and the environment.
Under the CWA, one of the Nation's most successful and effective environmental laws, the Federal Government acts to ensure safe levels of water quality across the country through the Environmental Protection Agency (EPA). Since the enactment of the CWA in 1972, the Federal Government has protected the waterways our citizens depend on by using its checks and balances authority to review and adjust key State water pollution control decisions, where necessary, to assure that they reflect up to date science, comply with the law, and protect downstream water users in other States. H.R. 2018 would roll back the key provisions of the CWA that have been the underpinning of 40 years of progress in making the Nation's waters fishable, swimmable, and drinkable.
H.R. 2018 could limit efforts to safeguard communities by removing the Federal Government's authority to take action when State water quality standards are not protective of public health. In addition, it would restrict EPA's authority to take action when it finds that a State's CWA permit or permit program is inadequate and would shorten EPA's review and collaboration with the Army Corps of Engineers on permits for dredged or fill material. All of these changes could result in adverse impacts to human health, the economy, and the environment through increased pollution and degradation of water bodies that serve as venues for recreation and tourism, and that provide drinking water sources and habitat for fish and wildlife.
H.R. 2018 would disrupt the carefully constructed complementary CWA roles for EPA, the Army Corps of Engineers, and States in protecting water quality. It also could eliminate EPA's ability to protect water quality and public health in downstream States from actions in upstream States, and could increase the number of lawsuits challenging State permits. In sum, H.R. 2018 would upset the CWA's balanced approach to improve water quality across the Nation, risking the public health and economic benefits of cleaner waters.
If the President is presented with this legislation, his senior advisors would recommend that he veto the bill.
Asarco LLC’s effort to force neighboring companies to contribute toward its $33-million California Superfund settlement took a step forward this month, with a federal judge denying a motion to dismiss the case.
Asarco LLC’s effort to force neighboring companies to contribute toward its $33-million California Superfund settlement took a step forward this month, with a federal judge denying a motion to dismiss the case. The Tucson-based copper miner and refiner filed a suit in U.S. District Court in California seeking to recoup cleanup...
Retrospective Application of the Superfund Recycling Equity Act: A Brave New World for the Recycling Industry
Mr. Funderburk and Ms. Morelli are partners with Stanzler Funderburk & Castellon LLP. Mr. Funderburk (Yale, B.A.; Georgetown, J.D.) practices in the firm's Los Angeles and San Francisco offices and Ms. Morelli (UC San Diego, B.A.; UC Berkeley (Boalt Hall), J.D.) practices in the firm's Los Angeles and New Jersey offices. Mr. Funderburk practices environmental law and counsels emerging technology companies on financing. Ms. Morelli leads the firm's environmental litigation practice and advises clients on brownfield redevelopment, California's Proposition 65 and New Jersey's ECRA law. They are counsel to Interstate Non-Ferrous in DTSC v. Interstate Non-Ferrous, and Ms. Morelli was lead counsel to the Joint Defense Group in the companion litigation, Courtaulds Aerospace v. Huffman, et al.[(E.D. Cal. 1993) 1993 U.S. Dist. LEXIS 7360].
The District Court for the Eastern District of California recently handed recyclers a victory in Department of Toxic Substances Control v. Interstate Non-Ferrous Corp. et al. [(No. CV-F-97-5016 OWW LJO) (May 25, 2000)], finding that CERCLA § 127 the recently enacted Superfund Recycling Equity Act [P.L. 106-113] applies to all parties and all transactions in this pending case. This decision is the first interpretation by a federal court addressing whether CERCLA § 127 applies retrospectively to pending cases not filed by the United States.1 Given the high stakes involved for parties found liable under CERCLA, courts from around the country which have pending before them actions involving the alleged CERCLA liability of entities and/or persons that engaged in recycling transactions are likely to address the district court's analysis in the Interstate Non-Ferrous case.
Citing CERCLA's broad remedial purpose, federal courts have broadly interpreted CERCLA's provisions, and many of these courts have ruled that arranging for recycling constitutes an "arrangement for disposal" under CERCLA [See, e.g., Catellus Development Corp. v. United States (9th Cir. 1994) 34 F.3d 748, 1994 CELR 299 (holding that "disposal" necessarily includes the concept of waste, and because spent batteries could be defined as waste, battery recycler could be held liable for arranging for their disposal);2 State of California v. Summer del Caribe, Inc. (N.D. Cal. 1993) 821 F. Supp. 574, 1993 CELR 317 (can manufacturer arranged for disposal of "solder dross")].3 Although some courts attempted to strike a balance between the goals of recycling and the "polluter pays" concept of CERCLA, the ever-present threat of liability had a negative impact on the recycling industry and created a market distortion favoring virgin feedstock materials over recycled feedstock materials.
Heeding the recycling industry's mantra that "scrap is not waste," President Clinton on November 29, 1999, signed into law the Superfund Recycling Equity Act, which exempts certain "generators" and "transporters" who recycle material in accordance with the Act from liability under CERCLA. This is only the third time in 20 years that Congress has significantly changed CERCLA.4 The Superfund Recycling Equity Act is significant not only to the recycling industry, but to all other parties potentially liable under CERCLA for cleanup costs of contaminated sites. By exempting scrap dealers that satisfy the Act's criteria from CERCLA liability, the Act effectively imposes greater potential liability on other industry groups, such as manufacturers and mining and waste companies, that are not subject to any CERCLA liability exemption.5 The latter industry groups may now be allocated a greater share of cleanup costs in CERCLA actions, since there may be fewer principally responsible parties ("PRPs") among whom to spread costs. Further, remaining defendants will no longer be able to seek contribution for cleanup costs from recyclers exempt under the Act.
Following the enactment of Section 127, the California Department of Toxic Substances Control ("DTSC") filed a motion for partial summary judgment that the statute does not apply to the pending CERCLA case filed by the DTSC in January 1997.6 The act expressly provides that: "The exemptions provided in this section shall not affect any concluded judicial or administrative action or any pending judicial action initiated by the United States prior to enactment of this section" [Section 127(i)]. This provision does not expressly address pending judicial actions filed by parties other than the United States. In a detailed and comprehensive 71-page opinion, the district court held that the Act applies to pending lawsuits brought by the State of California, and thus applies to the Interstate Non-Ferrous case.
I. Retrospective v. Retroactive Application of New Statutes
In addressing the DTSC's motion, the district court began its analysis with a discussion about terminology. The court noted that in the Ninth Circuit, the term "retrospective" is used to describe the application of a statute to events preceding its enactment. The term "retroactive" is reserved to describe a statute that has "retroactive effect," that is, one that attaches new legal consequences to conduct or transactions already completed. Laws that have no "retroactive effect" when applied to pending cases are deemed, in the Ninth Circuit, "retrospective" laws.
II. Landgraf and Lindh
After clarifying the "retrospective" vs. "retroactive" terminology, the court turned to the method of analysis outlined in Landgraf v. USI Film Products [(1994) 511 U.S. 244] for determining the retroactivity of statutes in deciding whether CERCLA § 127 applies to the DTSC-filed action. The Supreme Court in Landgraf outlined a two-part analysis to guide this inquiry. The first step is to examine the statutory text in order to "determine whether Congress has expressly prescribed the statute's proper reach" [511 U.S. at 280]. If it has, then the court will give effect to Congress' will, subject only to constitutional constraints. If the statute does not clearly specify its own temporal reach, the court must then determine "whether the new statute would have retroactive effect, i.e., whether it would impair rights a party possessed when he acted, increase a party's liability for past conduct, or impose new duties with respect to transactions already completed." If the statute does operate retroactively, "our traditional presumption teaches that it does not govern absent clear congressional intent favoring such a result" [511 U.S. at 280].
The Interstate court observed that Landgraf did not examine the rules for determining whether a statute contains an "express command" or "unambiguous directive."7 It noted, however, that in the subsequently decided case of Lindh v. Murphy [(1997) 521 U.S. 320], the Supreme Court stated that "in determining a statute's temporal reach generally, our normal rules of construction apply" [521 U.S. at 327].8 Thus, the court opined that in construing CERCLA § 127's temporal reach, direct or implied evidence of legislative intent may be discerned from the statute's structure, legislative history, and the context in which the statute was passed. Citing United States v. Olin Corp. [(11th Cir. 1997) 107 F.3d 1506, 1512-1513], the court stressed that "even absent explicit statutory language mandating retroactivity, laws may be applied retroactively if courts are able to discern 'clear congressional intent favoring such a result.'"
III. The Landgraf Analysis
A. Determination of Section 127's Temporal Reach
The district court concluded that CERCLA § 127 did not contain an "express command" or "unambiguous directive" as to its temporal reach. At the same time, the court rejected the DTSC's argument that for a new statute to apply to a pending case, it must affirmatively so state, noting that Lindh had expressly rejected this same argument
Defendants argued that Section 127(i)'s language confirms that the statute applies to all actions pending at the time of enactment except those initiated by the United States. They reasoned that Congress had no reason to identify actions to which Section 127 does not apply unless it intended the Act to apply to all other pending cases. The DTSC responded that this interpretation was analogous to the negative inference used by the Lindh court to infer that Congress did not intend to apply the subject act retrospectively. The court disagreed, but noted that in any event, Landgraf did not preclude all future use of a negative inference analysis in support of retroactive intent. Rather, the court concluded that defendants sought application of a "positive inference," that is, the absence of language specifying that Section 127 applies to pending actions means Congress intended it to apply. The court did not otherwise address the parties' "positive" and "negative" inference arguments, however, concluding that at bottom, "the language of the Act alone does not contain an express command or unambiguous directive that the statute is to be applied retrospectively to pending judicial actions brought [by] a State." Although the court found the statute did not expressly proscribe its reach, relying on United States v. Olin [(11th Cir. 1997) 107 F.3d 1506] it reasoned that laws nonetheless may be applied retrospectively if there is "clear congressional intent" favoring such a result. In examining whether such intent existed, the court employed traditional tools of statutory construction, looking to the structure of the statute and the legislative history.
With respect to the statute's structure, the court examined a number of factors: the historical retrospectivity of CERCLA and the Superfund Amendments and Reauthorization Act ("SARA"); the statute's use of the past verb tense; various statute headings indicating the law was intended as a "clarification" of CERCLA; the act's stated purpose of promoting recycling of scrap material, creating greater equity in the statutory treatment of recycled versus virgin materials, and removing the disincentives and impediments to recycling created as an unintended consequence of CERCLA; and express prospective language concerning the different criteria recyclers must satisfy under the act depending on when the recycling transaction occurred. The court found all of these factors "evidence of intent" that favored retrospectivity, and in particular it found that repeated use of the word "clarification" in the headings of Section 127 constituted "clear, unambiguous, and commanding evidence in favor of retrospectivity."
With respect to the statute's legislative history, the court noted the dearth of such history here: there was no pre-enactment committee, House or Senate floor debate of record, nor was there any committee report on the bill. The Conference Report included only the text of the Act, not any commentary about it. The only "legislative history" consisted of remarks introduced into the Congressional Record as legislative history by Senator Lott, the bill's primary sponsor. At the end of his remarks, Senator Lott requested "unanimous consent that the legislative history be inserted into the [Congressional] Record." It was.
Relying on Federal Energy Administration v. Algonquin SNG, Inc. [(1976) 426 U.S. 548, 564], which directed that an explanation provided by the legislation's sponsors during floor debate "deserves to be accorded substantial weight in interpreting the statute," the court concluded that the statements of all of the statute's sponsors in the Senate should be considered, notwithstanding the absence of any floor debate. The court also cited Mount Graham Red Squirrel v. Madigan [(9th Cir. 1992) 954 F.2d 1441, 1453-1454] as standing for the proposition that where other statutory interpretative tools are not determinative, "legislative statements can be helpful to determine statutory meaning and Congressional intent." Given the reasoning of these cases, the court determined that all legislative statements, including those by non-sponsors, should be considered. The court thus rejected the DTSC's contention that the remarks of sponsoring legislators (including Senator Lott) should be ignored or given little weight.
The court then proceeded to examine the remarks made by each of the sponsoring Senators. Senators Lott and Lincoln both introduced remarks prior to the President signing the bill into law on November 29, 1999. Senator Lott's remarks explicitly provided for Section 127's retrospective application to judicial proceedings brought by private parties and to administrative actions brought by "any governmental agency," such as the DTSC. Although Lott's remarks did not address pending judicial actions brought by any governmental agency, the court found it "reasonable to infer" that retrospective treatment should be afforded to both pending administrative and judicial actions, since both types of proceedings implicate the same or similar liability considerations. Senator Lincoln's remarks explicitly stated that only those actions brought by the United States prior to enactment "will remain viable."
By contrast, Senator Daschle did not comment on the bill until January 26, 2000, nearly two months after the bill became law. The court considered his remarks, but emphasized that such post-enactment legislative history "is generally considered to be of minimal assistance in interpreting a statute" (citation omitted). Thus, although Senator Daschle apparently disagreed with Senator Lott's legislative history about the availability of relief in pending cases, he did not set forth any contrary interpretation, and the court concluded his statements were of "minimal assistance."
The court also rejected Senator Daschle's suggestion that an earlier bill from the 103rd Congress be used as an interpretative tool, noting that Landgraf disavowed reliance on introduced bills or even bills passed by prior Congresses, but not enacted [Landgraf, 511 U.S. at 263]. The court also noted that under pre-Landgraf Ninth Circuit law, only "clear" legislative histories of prior bills that are identical to the law being interpreted are entitled to "some weight."
Apart from Senator Daschle's "late comments," no other legislative history, sponsor statement, or other legislative comment suggested Section 127 is not retrospective. The court accordingly concluded that Senator Daschle's comments did not diminish the fact and substance of Section 127's pre-enactment "legislative history" favoring retrospectivity, nor the post-enactment statements of Senators Lott and Lincoln to the same effect.
Finally, while noting that the remarks of individual, non-sponsor legislators are not accorded "great weight," the court nonetheless found that such remarks "are relevant indica as to unity, or lack of it, as to interpretation" (citation omitted). The court opined that in this case, the non-sponsor statements did not detract from the "retrospectivity-favoring legislative intent." The court found that "on balance, the statements of all individual legislators weigh heavily in favor of retrospectivity."
Concluding the first part of the Landgraf analysis, the court held that together, the evidence of intent statutory language and discernable legislative intent indicated that Section 127 is retrospective, and that such evidence was interpretable as an "express command" as to its temporal reach.
B. Determination of Retroactive Effect
Although it found the first Landgraf inquiry satisfied, the district court nonetheless analyzed whether the statute has retroactive effect. The court concluded it does not, rejecting DTSC's argument that its "rights" would be impaired because the statute potentially eliminates a CERCLA claim that previously existed. The court reasoned that recyclers that satisfy the requirements of Section 127 should not have been liable in the first place under pre-Section 127 law. Further, DTSC did not suggest that its liability for past conduct would be increased, or that it would be subject to new duties with respect to transactions already completed by retrospective application of Section 127.9
IV. Clarification v. Change Analysis
The court next embarked on an "analytical approach" "separate" from the Landgraf analysis for determining whether a new statute can be applied to pending cases, premised on whether the statute is a clarification or a change of existing law. Citing Piamba Cortes v. American Airlines, Inc. [(11th Cir. 1999) 177 F.3d 1272, cert. denied, 120 S.Ct. 980 (2000)] as a leading example of this alternative approach, the court observed that a new statute that is a clarification "accurately restates the prior law" and thus there is no need for a Landgraf analysis because the statute has no retroactive effect.
In connection with the clarification versus change analysis, the court examined the Act's statement of purpose (to remove the disincentives and impediments to recycling created as an unintended consequence of Superfund), various headings of the statute that use the term "clarification" (of which there are at least three), and the context in which the statute was enacted. With respect to the last factor, the court analyzed at length relevant case law construing "arranger" and "transporter" liability under CERCLA and various courts' attempts to construct a pre-Section 127 "recycling exemption." The court noted that pre-Section 127 case law addressing recycler liability is conflicting, and that the liability analysis is case specific and fact intensive. The court reasoned that CERCLA's "ambiguous" liability scheme as applied to recycling transactions corroborates a finding that Congress intended Section 127 "to clarify the criteria for and approach to liability" for such transactions. Finally, citing the remarks of Senators Lincoln and Lott, and noting the absence of any contrary remarks by Senator Daschle, the court found the legislative history likewise supported a finding that Section 127 is a clarification, rather than a change, of the law affecting recycler liability under CERCLA. The court accordingly concluded the statute is a clarification of existing law (CERCLA), and it therefore does not have a retroactive effect.
V. Analogy of Actions Brought by the United States to Those Brought by the States
The court rejected DTSC's argument that the term "United States," as used in Section 127(i), should be construed to include enforcement actions brought by the states. The court stressed that a state and the United States are not functionally equivalent under CERCLA, nor was DTSC federally authorized under CERCLA § 104 to prosecute this enforcement action. As the court stated, "this is not a federal-state partnership case," and, indeed, DTSC in this case sued the United States as a potentially responsible party (PRP). Additionally, the court observed that Congress knows how to refer to a state in CERCLA when it so intends. According to the court, Congress' failure to do so in Section 127(i)'s exceptions to retrospectivity "is clear evidence that Congress did not intend the exception to 127's recycler exemption to apply to pending State or state agency-initiated actions."
VI. Constitutional Considerations
With regard to retroactive legislation, there are two lines of cases: statutory interpretation cases and constitutional due process cases. Landgraf represents the first category. Constitutional constraints on retroactive laws include the Ex Post Facto Clause, which prohibits retroactive penal legislation, the Takings Clause, which prevents the taking of vested property rights without just compensation, the Contracts Clause, which prevents state legislatures from passing laws that interfere with preexisting contractual obligations, and the prohibition against Bills of Attainder, which prevents Congress from singling out people and punishing them summarily for past conduct. Courts examining these constitutional grounds, however, have generally upheld retroactive laws that explicitly provide for retroactive effect. As the Landgraf court pointed out, a deferential standard of review applies such that the constitutional impediments to retroactive civil legislation "are now modest" [Landgraf, 511 U.S. at 272]. Thus, courts simply will inquire whether the retroactive application of the legislation in question is justified by a rational legislative purpose [See, e.g., Pension Benefit Guar. Corp. v. R.A. Gray & Co. (1984) 467 U.S. 717 (upholding retroactive application of Multiemployer Pension Plan Amendments Act of 1980 [29 U.S.C. 1381, 1391] requiring that an employer withdrawing from a multiemployer pension play pay a fixed and certain debt to the pension plan)].
Here, the DTSC did not argue that retrospective application of CERCLA § 127 would violate any constitutional provisions. In any event, such an avenue of attack is not likely to succeed given the Supreme Court's deference to the legislature where retroactive intent is apparent [See, e.g., United States v. Asarco Inc. (D. Idaho 1999) 1999 U.S. Dist. LEXIS 18924 (holding that retroactive application of CERCLA to natural resource damage claims did not constitute a taking or violation of due process);10 United States v. Alcan Aluminum Corp. (N.D. N.Y. 1999) 49 F. Supp. 2d 96 (holding that retroactive application of CERCLA does not constitute an unconstitutional taking, a denial of substantive Due Process, or a violation of the Ex Post Facto provisions of the United States Constitution)]. Moreover, as noted, the district court concluded that the statute has no retroactive effect, thus precluding any need for constitutional review.
VII. Implications
The district court's ruling in Interstate Non-Ferrous is an important win for the recycling industry. Given the decision's importance and the fact that it is the first to address the issue of CERCLA § 127's retrospective application, the question is not whether an appeal will be filed, but when. Indeed, the DTSC has moved to certify the court's order for interlocutory appeal, and this motion is under consideration by the court.11
Apart from any appellate proceedings, however, the decision is not the end for the recycling company defendants. Recyclers claiming Section 127's exemption from liability still must demonstrate they satisfy the criteria set forth in the statute. Barring an interlocutory appeal and stay of the litigation on CERCLA § 127 issues, the actual application of Section 127 will be the next phase of the Interstate litigation. Interstate Non-Ferrous thus may provide an early indication of the impact of Section 127 on the recycling industry.
Of course, despite the Interstate court's ruling, companies involved in the recycling business should still expect to be sued under the "arranging for treatment or disposal" prong of CERCLA's liability scheme, especially when the recycling process involves the use or generation of hazardous materials. Nevertheless, recycling companies that are presently involved in CERCLA litigation may argue, based on Interstate, that they should at least be permitted to attempt to prove they meet the exemption criteria of Section 127.
Endnotes
1 The only other published decision to date addressing the application of CERCLA § 127, United States v. Atlas Lederer Company [(S.D. Ohio 2000) 97 F. Supp. 2d 830], involved a pending action by the United States. The Atlas Lederer court accordingly held that Section 127's exemption from liability expressly did not apply to the action.
2 See Commentary by Lisa J. Morelli and William W. Funderburk, Jr., regarding the district court's decision in Catellus Development Corp. v. U.S. [(N.D. Cal. 1993) 828 F. Supp. 764, which the Ninth Circuit subsequently reversed, in October 1993 issue of the California Environmental Law Reporter (Matthew Bender), page 354.
3 See also Courtaulds Aerospace, Inc. v. Huffman [(E.D. Cal. 1993) 1993 U.S. Dist. LEXIS 7360]. Courtaulds (presided over by Judge Wanger, the same judge presiding over the Interstate Non-Ferrous litigation) was a predecessor case that is directly related to the Interstate Non-Ferrous case. The district court there refused to dismiss plaintiff's CERCLA claim against the scrap metal defendants based on defendants' argument that they could not have arranged for the disposal of a hazardous substance by bringing recyclable materials to the Courtaulds site to recover the metals contained therein. The authors of this article represented the group of scrap metal defendants that filed the motion to dismiss.
4 Congress previously amended CERCLA by the Superfund Reauthorization and Amendments Act of 1986 ("SARA"), codified as amended at 42 U.S.C. § 9601 et seq., and by the Asset Conservation, Lender Liability and Deposit Insurance Protection Act of 1996, codified as amended at 42 U.S.C. §§ 9601(20)(A) and 9607(n).
5 One of the few loopholes in CERCLA is the exclusion from CERCLA's reach of contamination by petroleum substances. See 42 U.S.C. § 9601(14). This is a testament to the power and influence of the oil company lobbyists.
6 The Interstate case involves a contaminated parcel of property located in Mojave, California, known as the "Mobile Smelting" site. From approximately 1961 to 1990, Mobile Smelting operated a metal smelting plant on the property; the company's operations included the smelting or incineration of material (primarily insulated wire) for the purpose of recovering copper and aluminum. These activities created ash, which was later found to contain heavy metals (including copper and lead) and dioxins/furans. The Courtaulds site, discussed above at n. 3, was adjacent to and (generally) downwind from the Mobile Smelting site.
7 Justice Scalia wrote separately in Landgraf to object to the Court's willingness "to let that clear statement [mandating retroactive application] be supplied, not by the text of the law in question, but by individual legislators who participated in the enactment of the law, and even legislators in an earlier Congress which tried and failed to enact a similar law" [511 U.S. at 287 (Scalia, J., concurring)]. Of course, Scalia's rejection of legislative history in statutory interpretation cases is well known. See William Eskridge, Jr., 96 Mich. L. Rev. 1509 (1998), discussing Scalia's judicial opinions and "the new textualism."
8 In Lindh, the Supreme Court used a negative inference to infer that Congress did not intend to apply retrospectively certain parts of the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). See 521 U.S. at 330-334. Thus, the Supreme Court held that if a congressional intent to not apply a statute retrospectively can be discerned, the courts are to follow that intent without regard to whether the statute has "retroactive effect."
9 The court also rejected DTSC's argument that retrospective application of Section 127 conflicts with the federal savings statute, 1 U.S.C. § 109. The court reasoned that because Congress indicated that Section 127 was intended to apply to pending cases by everyone except the United States, the federal savings clause did not apply.
10 Notably, the Asarco court concluded that Eastern Enterprises v. Apfel [(1998) 524 U.S. 498], in which a plurality of the Supreme Court held that the Coal Act was unconstitutional as applied to Eastern Enterprises, was not controlling authority and, moreover, was of "little precedential value" given the lack of a majority opinion. The court found that Eastern's holding was limited to its specific facts and result, and that the Eastern court did nothing more than apply "well-settled" principles of law regarding the takings clause and due process principles. Further, the Asarco court stressed that Eastern reiterated the constitutionality of a particular statute is a case by case factual determination [1999 U.S. Dist. LEXIS 18924 at *10-13]. Challenges to CERCLA's liability scheme based on Eastern Enterprises thus are unlikely to succeed any more than past efforts to challenge the constitutionality of CERCLA's retroactive liability. See, e.g., the post-Landgraf analyses in United States v. Olin Corp. [(11th Cir. 1997) 107 F.3d 1506, 1513-1515]; Nevada v. United States [(D. Nevada 1996) 925 F. Supp. 691]; and Ninth Avenue Remedial Group v. Allis-Chalmers Corp. [(N.D. Ind. 1996) 946 F. Supp. 651, 657].
11 At oral argument on July 10, 2000, the court indicated it was not inclined to certify its order for interlocutory appeal, but as of the date of this publication, the court has not rendered a final decision on this issue.
All materials copyright 1999-2003 by Stanzler Funderburk & Castellon LLP. All rights reserved.
Calif. Appeals Court Chucks Enviro Suit Against Builder
By Dietrich Knauth
Law360, New York (July 11, 2011) -- A California appeals court on Friday affirmed a win for a real estate developer whose 1,000-house construction project drew fire from green groups who argued that the builder and city of Rocklin, Calif., failed to adequately address environmental concerns.
The city approved Rocklin 650 Venture's project for an undeveloped area of the city known as Clover Valley in 2007, sparking legal challenges from the Clover Valley Foundation, Sierra Club and town of Loomis, which said that the city's environmental impact report was inadequate under the California...
City of San Francisco ordered not to proceed with the transfer of toxic land at the Superfund site for redevelopment before the clean-up process is complete
San Francisco - In a victory for Bayview Hunters Point community and environmental justice groups, a Superior Court judge ruled today that the City of San Francisco's redevelopment plan for the former Hunters Point Naval Shipyard failed to properly evaluate the environmental and health risks by allowing the Navy to transfer ownership of the contaminated Superfund site before the cleanup of the area was complete.
Last year, the San Francisco Board of Supervisors approved the massive 702-acre development that proposed varying projects, including 10,500 housing units and a new 69,000-seat football stadium for the San Francisco 49ers on the troubled shipyard property and neighboring Candlestick Point. The construction by the developer, Lennar Urban Corp., is projected to last more than 20 years.
The court found that the Environmental Impact Reports' (EIR) project description improperly excluded the early transfer activities that will be conducted by the City and Lennar. Because of this deficiency, the court ordered that the early transfer and development of the shipyard parcels may not proceed until the federally mandated remediation process is complete and approved by the regulating agencies as safe for human health and development. The court stated, however, that the remainder of the project can proceed.
City officials and Lennar claimed there was no need for the EIR to evaluate the environmental and health impacts of transferring the contaminated superfund site to the City and the developer in advance of complete cleanup. However, the court found that under the California Environmental Quality Act (CEQA), the City has the responsibility to evaluate these impacts.
The court also recognized that under early transfer, the City and Lennar would become responsible for much of the cleanup as part of the redevelopment - a task which the EIR simply ignored.
"Local residents are extremely concerned about the toxic and radiological contamination at the shipyard," said George Torgun, an attorney with Earthjustice who represented community groups in the lawsuit against the City. "The community supports the cleanup and redevelopment of the area and they welcome the jobs it will bring," Torgun pointed out, "but they want some assurance that the site will be safe and the redevelopment work will not harm the workers on the project and surrounding residents."
Pollution problems at the Hunters Point Shipyard date back to World War II, when the massive dry docks were used to build and repair U.S. Navy warships. Fuels, solvents and lead paint were routinely used - and dumped - at the facility.
When atomic tests began in the South Pacific, radioactive waste was added to the toxic mix. From 1946 to 1969, the Naval Radiological Defense Laboratory at Hunters Point decontaminated ships and studied the effects of nuclear weapons.
The shipyard was later leased to the Triple A Machine Shop, a company that was eventually charged with criminal violations for the illegal storage and disposal of hazardous waste on the property.
In 1989, the shipyard was designated as San Francisco's only federal superfund site under the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA).
Earthjustice, a non-profit, public interest law firm, argued the suit on behalf of People Organized to Win Employment Rights (POWER) and Greenaction for Health and Environmental Justice, two community organizations based in Bayview Hunters Point.
The neighborhood is one of the most economically disadvantaged areas of San Francisco with a large minority population. Residents already suffer an elevated rate of asthma and other respiratory diseases.
"This ruling to block early transfer is an important win for this community that had been dealt a stacked deck. It is a victory for our health, our families and our future. Lennar is known for ignoring toxic contamination in other regions where it develops on decommissioned military sites, and Bayview Hunters Point is one community where we will not allow them to cut corners," said Jaron Browne of POWER. "However, even with this ruling, we need to remain vigilant to ensure that the Navy genuinely completes a thorough cleanup and does not rush the process to meet development timetables."
"The blocking of the early transfer of the toxic contaminated land before it is cleaned up is a great victory for health and environmental justice and for all the current and future residents of Bayview Hunters Point who don't want to live or raise their kids on toxic soil," said Marie Harrison, Greenaction community organizer and long-time Bayview Hunters Point resident.
"Look, it's simple, we just want development that is safe for the workers, the community and anyone working, living and raising families in our neighborhood," said POWER member and Bayview resident Esselene Stancil. "Any community deserves that."
Posted July 12, 2011 at 1:31 p.m., updated July 12, 2011 at 1:31 p.m.
The Shasta County district attorney's office is advising homeowners to avoid a costly service being offered legally by some private companies to provide them with copies of their grant deeds.
That service is provided by the Shasta County Assessor-Recorder's Office at a fraction of the cost, it says.
DA investigator Bon Angulo announced in a news release issued today that companies are soliciting homeowners through the mail offering to provide them with copies of their grant deeds.
The letter gives the homeowner publicly acquired information about the property, including address, purchase price, grant deed number and property identification.
The letter then offers homeowners copies of the grant deeds for $89 if ordered within a certain period. After that, it says, the price goes up by an additional $20.
But, Angulo says, the assessor-recorder's office can provide grant deeds and other recorded documents for $3.50 for the first page and $1.50 for each additional page. Most deeds are only one or two pages in length, he said.
In addition, Angulo said, some companies also say, for a large fee, that they will provide homeowners with a Comparative Market Analysis (CMA). A CMA is an analysis done by real estate agents to assess a property's value by examining similar properties that have sold within the past year.
Most local real estate agent will do a CMA for free, he said, adding that free value review request can also be made at the assessor-recorder's office.
Will Court Ruling Increase Government Superfund Liability?
By Byron Gee and Alfred Smith
July 8, 2011 (Vol. 20 No. 14)
In a case that may shift significant liability onto the United States to fund hazardous-waste cleanups, a federal district court recently held that the United States Government ("Government") is liable under CERCLA as both an "arranger" and "operator" for cleanup costs at a property the Government leased to a private mining company. Nu-West Mining Inc. v. United States, No. 09-431 (D. Idaho Mar. 4, 2011). The court held that the Government's leasing, permitting, inspection, and oversight functions exposed it to CERCLA liability. The court also rejected the Government's argument that it acted in a mere "regulatory" capacity. The decision potentially exposes the federal government -- the largest landowner in the nation -- to an expanded share of cleanup costs on leased property throughout the country.
Background.
Under the Comprehensive Environmental Response, Compensation, and Liability Act, 42 U.S.C. secs. 9601-9675 ("CERCLA"), a plaintiff may recover response costs arising from the release or threatened release of hazardous substances from four categories of persons, generally described as owners, operators, arrangers, and transporters. In Nu-West, the U.S. District Court for the District of Idaho examined the Government's potential liability as both an "arranger" and "operator". CERCLA imposes liability on arrangers -- or "any person who by contract, agreement, or otherwise, arranged for disposal or treatment ... of hazardous substances" -- as well as those who operate the facility at the time of the release. (42 U.S.C. sec. 9607(a)).
From the 1960s through the 1990s, Nu-West Mining Inc. ("Nu-West") leased property in Idaho from the Government to mine phosphate. During the mining process, waste rocks were hauled out of the mines. While Nu-West operated the mines, the Government inspected the mines to monitor environmental conditions, ensure that waste rock was properly disposed of, and validate royalty payments. The Government also issued special use permits for the construction of waste rock dumps adjacent to the mine sites. To promote re-vegetation, the Government required the companies to cover the waste rock dumps with middle waste shale.
However, the middle waste shale contained selenium that leached into the water flowing from beneath the piles, contaminating the site. The Government and Nu-West entered into an Administrative Orders on Consent to remediate the sites. Nu-West incurred response costs of approximately $10 million to remediate the contamination and filed a CERCLA action to recover some or all of its response costs from the Government.
Government Incurred CERCLA Liability as an Arranger.
With respect to arranger liability, the court looked to the U.S. Supreme Court's decision in Burlington Northern and Santa Fe Railway Co. v. United States ("BNSF") 129 S. Ct. 1870 (2009). In BNSF, the Supreme Court ruled that a manufacturer of a chemical product that was subsequently spilled at a site was not an arranger because an entity may only qualify as an arranger "when it takes intentional steps to dispose of a hazardous substance." The Court held that the manufacturer's "mere knowledge" that spills would occur did not amount to an "intent" to dispose, and emphasized that arranger liability "requires a fact-intensive inquiry that looks beyond the parties' characterization of the transaction as a 'disposal' or 'sale' and seeks to discern whether the arrangement was one Congress intended to fall within the scope of CERCLA's strict-liability provisions." (Id. at 1879).
Applying BNSF, the Nu-West court considered three elements for determining arranger liability, including whether the entity: (1) owned the hazardous substance; (2) had the authority to control the disposal of that substance; and (3) exercised some actual control over the disposal of that substance. The Nu-West court found the Government satisfied all three elements for arranger liability. The court further found that the Government owned the source of the selenium, the middle waste shale. The court also found that the Government had the authority to control the disposal of the mining waste on the land, as no mining or waste disposal could occur without its approval. In addition, the Government exercised actual control over the disposal -- and showed its intent that the disposal take place -- by requiring its lessees to cover the outer surface of the waste dumps with a layer of middle waste shale.
The court also rejected the Government's argument that it should not be held liable because it was "acting in a purely regulatory role." The Government asserted that it did not have the requisite intent required under BNSF, since it was merely acting to "ensure that the Lessees complied with the law and the terms of their leases, permits, and mine plans that [the Lessees] entered into as a condition of mining on public land." "Regulatory oversight," the Government argued, did not equate to "actual control" of the hazardous substances as required under CERCLA. The Government argued that its actions were "aimed only at mitigating the environmental harm caused by private parties' actions...." Therefore, it could not have taken any "intentional steps to dispose of a hazardous substance" as BNSF requires.
The district court rejected this defense, relying on the Ninth Circuit's decision in United States v. Shell Oil, 294 F.3d 1045 (9th Cir. 2002), where the court concluded that CERCLA's broad waiver of sovereign immunity under 42 U.S.C. sec. 9620(a)(1) exposed the Government to liability even when acting in a regulatory role. The court reasoned: "ShellOil's rejection of the 'governmental' defense applies with equal strength to the 'regulatory' defense raised here. Congress could have easily included a regulatory exception to the broad waiver of sovereign immunity contained in CERCLA but did not do so."
Government Incurred CERCLA Liability as an Operator.
With respect to operator liability, the court looked to the U.S. Supreme Court's 1998 decision in United States v. Bestfoods, 524 U.S. 51, 118 S. Ct. 1876 (1998). In Bestfoods the Supreme Court held that for a parent corporation to be liable as an "operator" under CERCLA, the parent corporation "must manage, direct, or conduct operations specifically related to pollution, that is, operations having to do with leakage or disposal of hazardous waste, or decisions about compliance with environmental regulations." (Id. at 66-67). Operator liability "attaches if the defendant had authority to control the cause of the contamination at the time the hazardous substances were released into the environment and actually exercised such control." (Kaiser Aluminum & Chem. Corp. v. Catellus Dev. Corp., 976 F.2d 1338, 1341-42 (9th Cir. 1992)).
Applying these elements, the Nu-West court held the Government liable as an "operator," noting that the Government "manage[d], direct[ed], or conduct[ed] operations specifically related to pollution...regularly inspected the dumps...and directed the lessees to take specific actions at the waste dumps." The court reasoned: "In this case, the record shows conclusively that the Government was managing the design and location of the waste dumps for the four mines....and in ensuring that the waste dumps complied with the mining plans and environmental rules. That is sufficient, as a matter of law, for operator liability."
Conclusion and Implications.
The Nu-West court's determination that the Government's leasing, permitting, and licensing roles on federal lands gives rise to operator and/or arranger liability under CERCLA may have significant implications on the allocation of liability for response costs. Courts generally allocate a greater percentage of liability to parties that actively participate in the disposal of hazardous waste. The fact that the Government took action in a regulatory capacity, to ensure compliance with law or to mitigate environmental harm, is not a defense. As the largest landowner in the Country, this expanded liability on the federal government could have significant implications in the allocation of response costs liability across the nation.
Byron Gee and Alfred Smith are partners at the law firm of Nossaman, LLP.
UPDATE 3-US report urges overhaul of nuclear rules
Tue Jul 12, 2011 10:46pm EDT
* Total of 34 recommendations made in 82-page report
* Looked at how to improve US safety after Fukushima
* Recommends tougher approach to emergency plans
* No imminent risk seen from current system-report
* "It's a laundry list"-analyst (Adds comments and details throughout)
WASHINGTON/HOUSTON, July 12 (Reuters) - A key task force formed after the Fukushima disaster recommended the U.S. nuclear regulator take a new, tougher approach to safety, which could force plants to plan for catastrophes far beyond what they were originally designed to withstand.
In the most far-reaching review of U.S. nuclear safety since the Sept. 11 attacks a decade ago, the report suggests a philosophical shift is needed to unify a patchwork of formal rules and industry guidelines, ensuring all are overseen by the Nuclear Regulatory Commission.
Among the 34 recommendations, the task force urged tougher standards for back-up power supplies, back-up water supplies for pools holding plant waste, and improvements in reactors that share the same design as Japan's Fukushima Daiichi plant.
The report is the U.S. government's most definitive response yet to the earthquakes and floods that caused a partial meltdown at Fukushima. America's response could set a template for other nations that look to the world's biggest nuclear power generator to set the standard for safety.
If adopted, the report could lead to cost increases for operators of the nation's fleet of 104 reactors, such as Exelon (EXC.N), Entergy (ETR.N), and PG&E (PCG.N). The industry is already grappling with the competitive threat from cheap and abundant supplies of natural gas.
It's hard to say how much the ideas could cost the industry, said Christine Tezak, an energy policy analyst at Robert W. Baird & Co, noting much will depend on details of decisions still to be made by the NRC.
"It's a laundry list. Whether this adds up to a cooling tower and puts you out of business, it's too early to tell," Tezak said.
The five-member Nuclear Regulatory Commission will need to decide whether the regulatory shift is warranted. The task force did not find any immediate safety issues.
"The current regulatory approach and more importantly the resultant plant capabilities allowed the task force to conclude that a sequence of events like that in Fukushima is unlikely to occur in the United States," according to the report obtained by Reuters Tuesday evening.
The report, which the NRC will officially release on Wednesday, is likely to disappoint nuclear critics who had called for the U.S. regulator to pause on renewing licenses for aging plants, and making decisions on new reactors. The task force did not go that far.
"Continued operation and continued licensing activities do not pose an imminent risk to public health and safety," the report said.
The March 11 earthquake and tsunami overwhelmed the large Fukushima nuclear plant, and officials in Japan continue to grapple with cleaning up radioactive waste from the world's worst nuclear disaster in 25 years.
It could take years before officials fully understand what happened there, prompting a senior lawmaker to label the task force ideas as premature.
"Why has the NRC suddenly recommended sweeping regulatory changes in this report apparently without an adequate technical or regulatory basis to justify these modifications?" said James Inhofe, senior Republican on the Senate's Environment and Public Works committee, which has oversight of the NRC.
The Nuclear Energy Institute, an industry lobby group, also said more information was needed from Japan.
"A 90-day review does not permit a complete picture of a still-emerging situation," the group said in a statement.
But Representative Edward Markey, a Democrat and long-time industry critic, said the NRC should move ahead quickly.
Markey said he was disappointed the report did not enlarge emergency evacuation zones around nuclear power plants, nor recommend that spent fuel be moved into dry casks from pools, where most of the radioactive waste is currently stored.
The task force praised new reactors that include passive features, saying the new designs would be in line with many of its recommendations. It urged the NRC to complete its review "without delay" of Toshiba Corp's (6502.T) Westinghouse AP1000 reactor and GE-Hitachi's (6501.T) Economic Simplified Boiling Water Reactor.
The AP1000 is the reactor design of choice for the nation's first new nuclear plants in 30 years -- Southern Co (SO.N) in Georgia and SCANA Corp (SCG.N) in South Carolina.
The NRC will next embark on a six-month broader review, and is expected to invite industry and the public to participate.
Commissioners are slated to give their first public statements on the task force recommendations at a public hearing on July 19, while Chairman Gregory Jaczko -- who is pushing for an expedited response -- will speak publicly at a National Press Club event a day earlier. (Additional reporting by Ayesha Rascoe, Mari Saito, Tom Doggett, Malathi Nayak and Timothy Gardner; Editing by Lisa Shumaker)
Small Hydro Power Generation along with Thermal Power Plants: an introduction to Use of Modified Electronic Governor Control Systems
This paper is an attempt to emphasize on the importance of the non-conventional energy sources of which small hydropower generation is one. It deals with the cogeneration of hydro power along with thermal power stations. The paper describes how it will be effective to increase the overall efficiency of the thermal plant. Also it emphasizes on the appropriate and maximum utilization of both, the flow and discharge of the water used in thermal plants to generate hydro power. The paper also explores the various possibilities of harnessing energy at different locations in plant. Advantages and limitations of such an arrangement is appropriately dealt with. An introduction to the upcoming technology of the modified electronic governor control system is also dealt with.
Introduction
What Is Small Hydro Power and it's Need:
Fuel prices are going up very rapidly. We need to think upon harnessing non-conventional sources of energy to our maximum. Up till now only those sites, which are large enough, where economy of scale enabled the production of energy at cost low enough to compete thermal power, fueled with low cost oil were used. But now, with advancement in developments of turbines that can use " small falls & discharges" efficiently has led to development of small hydro installation to a large extent.
Classification
As per as the bureau of the Indian standards
Depending on amount of power produced:
Small hydro project: 1001-6000 KW
Mini hydro project: 101-1000 KW
Micro hydro project: below 100 KW
Depending on utility:
Independent: only for power generation.
Sub ordinate: apart from power other purposes are solved. E.g. irrigation, water supply etc.
Another way of classification is:
Small head but high discharges.
High heads but small discharges.
As far as our topic is concerned thermal power plants having hydro plant for cogeneration of power can be considered as small head, high discharge and an independent scheme. Depending on topographical features it can be small, mini or micro.
Overview of Small Hydro Electric Scheme with Respect to its Installation Along with Thermal Project
Diversion: It allows water for proper intake.
Desilting Chamber: This is not necessary in case of our topic because water is coming after a series of waste removal process.
Water Conducting System: Proper inlet and exit of water is maintained through this system.
Forebay: In this case, canal itself leads water to turbine, thus it serves as forebay.
Surge Tank: When load on turbine reduces governor automatically closes inlet gates partially to reduce inflow to turbines . It also reduces water hammer pressure.
Penstock: Short length penstocks carry extra pressure and thus are best suited for such purposes.
Power House: Consists of turbines and other control systems.
Tail Race: Generally a canal for closed as well as open circuit water system.
Cogeneration of Small Hydropower with Thermal Power
In thermal power plant, water is main working fluid, whether to derive steam or to cool it, excess amount of it is used, and over the whole process the flow and head of water may be utilized to harness energy . Depending upon the nature of water circuit in power plant we can have different possibilities . They are as follows:
General Advantages of SHP
Low gestation periods.
Short time for developing a unit. Investment is also less as compared to big hydro projects.
Running cost is very less.
Operation & maintenance is one of the simples of all other power utilities.
It is pollution free.
No environmental hazards, such as the submerging of lands and ecological unbalance.
Advantages of Developing a SHP along with a Thermal Power Plant
Full utilization of running water in the plant also cogeneration increases the overall efficiency of the plant.
Low development costs, as well defined framework already exists for the thermal power plant.
It can be synchronized with the grid . Due to this the plant utilization factor increases considerably, making the project economically viable.
Large colonies of thermal projects may be electrified using such installations.
Limitations
Construction of SHP requires labor, time and investment.
Non-Availability of indigenous technology and import procedures are time consuming.
General lack of awareness of benefits from SHP.
Hydraulic Turbines
Development of small-scale projects has been possible only because of upcoming technologies in field of turbo machinery, because they are capable of generating power even from very small heads . With the development of tubular, straflow and bulb turbines it is possible to utilize even smaller heads . Kaplan and Francis turbines are the other turbines that utilize low heads.
Recent Technologies: A Discussion
With the development of Modified Electronic Governor Control System the operation of SHP becomes much more simple . In such a system the gates are positioned at any desired position by pressing the required keys . There are controllers meant for runner blade control, operated only after turbine attains 80% speed . For desired opening and closing of runner blade during testing and calibration there are adequate mechanisms provided . Water level is directly maintained through changing gate positions. For plant start up all necessary auxiliaries should be started first which indication lamps on the control panel can verify . Proper synchronization between opening of gates and speed of the turbine is maintained through this modified electronic governor control system . The speed of the turbine is maintained within specified limits. Once the speed of the turbine is stabilized, the generator breaker is closed for synchronizing with the grid . Immediately after closing the breaker, some load should be taken on generator to avoid possibility of motoring operation . For planned shutdown load is reduced gradually. There are proper arrangements on the control panel itself to meet with emergencies.
Conclusions
Small-scale hydro plants can be set up with thermal power plants to increase the efficiency as well as the plant utilization factor.
References
John Finnemore, Joseph. B.Franzini, Fluid Mechanics with Engineering Applications, Mc-Grawhill Publishers, Chapter 16 -- Hydraulic Machines -- Turbines.
Victor Streeter, K.W. Bredford, E Benjamin Wylie, Fluid Mechanics, Mc-Grawhill Publishers, Chapter -- 11/ Turbomachinery.
G.D. Rai, Non-conventional Energy Sources, Khanna Publishers, Small Scale Hydroelectricity,p-541.
Bureau Of Indian Standards, www.bis.com. (For classification of hydro power plants).
Alstom, Power Hydro, Website Www.Alstom.Com.
McGraw-Hill Series In Mechanical Engineering, P-399
National Academy of Sciences warns EPA to get its science straight or risk irrelevance
Irrelevance in scientific terms, of course. In bureaucratic combat, the EPA is nearly peerless. The article is behind a subscription firewall, but here’s the gist:
A key EPA science adviser is warning that the agency must succeed in making its scientific research programs more transparent and sound in order to to bring credibility back to agency science, or EPA will risk increased scrutiny from House Republicans and industry that could prompt a “crisis.”
“You can’t fail this time,” Thomas Burke, associate dean of The Johns Hopkins Bloomberg School of Public Health who also chaired a recent National Academy of Sciences (NAS) panel on ways to improve EPA risk assessments, told EPA officials and other scientific advisers during a discussion on the agency’s new chemical safety research program June 30.
“The sleeping giant is that EPA science is on the rocks . . . if you fail, you become irrelevant, and that is kind of a crisis,” Burke told a joint meeting of EPA’s Science Advisory Board and EPA’s Board of Scientific Counselors (BOSC) charged with looking at the reorganization of the agency’s research programs.
Burke, who chaired a recent NAS panel that recommended a host of steps for EPA to improve its risk assessment process, pointed in particular to the agency’s risk assessment process, calling it EPA’s “Achilles heel.”
That’s a big warning, and it comes from an authoritative source that the EPA’s fans cannot easily dismiss. The National Academy of Sciences has essentially told the EPA that its science stinks.
And they didn’t even get into how the EPA slammed Texas despite the agency’s own contrary scientific findings.
Sequencing the Smallest Known Life
In the depths
of a former copper
mine in
Northern
California dwell
what may be the
smallest, most
stripped-down
forms of life ever
discovered. As reported in the April 26,
2010 issue of Proceedings of the National
Academy of Sciences, the microbes, members
of the domain of one-celled creatures
called Archaea, are smaller than all other
known microorganisms. The only potential
exception is a microbe that can survive
solely as a parasite attached to the outside
of other cells.
The copper mine microbes are about as
large as the largest viruses, which can
replicate only in living organisms but are
not considered to be living. Their genomes,
sequenced at the DOE JGI, are among the
smallest ever reported at only a million
base pairs. Researchers led by DOE JGI
collaborator Jill Banfield named them
ARMAN for archaeal Richmond Mine acidophilic
nanoorganisms.
“ARMAN are among the smallest
microbes we know of that, if not free-living,
are at least not permanently obliged to be
a parasite or symbiont,” noted co-author
Luis R. Comolli, a microscopist at Lawrence
Berkeley National Laboratory (LBNL).
Banfield's group first described the ARMAN
microbes four years ago, after identifying
the organisms in acidic pools in the
Richmond Mine in Iron Mountain, Calif.
The team's continued analysis has
revealed amazing organization within the
mine drainage biofilm communities that
grow on solutions with the acidity of battery
acid. The new data will help the researchers
further explore the community of organisms
in the mine and determine how they are
able to live in such harsh conditions
WRIT, in law, is a formal commission from the crown or other supreme executive officer to an inferior executive officer or to a private person, enjoining some act or omission. The word represents the Latin brevis or breve (both forms are found, the latter more commonly), so called, according to Bracton, from its shortly expressing the intention of the framer, " quia breviter et paucis verbis intentionem proferentis exponit." The breve can be traced back as far as the Codex Theodosianus (438 A.D.), where one of its meanings is that of an official report or letter. It bears a similar meaning in some of the capitularies of the Frankish kings. The interdictum of Roman law some-times represents the writ of English law; «.¡7., there is con-siderable likeness between the Roman interdictum de libero homine exhibendo and the English writs of habeas corpus and de homine replegiando. From Roman law the breve passed into the Liber Feudorum and the canon law, in both in a sense differing from that at present borne by the writ of English law. The breve testatum of the Liber Feudorum was an instrument in writing made on the land at the time of giving seisin by the lord to the tenant, and attested by the seals of the lord and the pares curias or other witnesses. In England such witnesses were part of the inquest, and joined in the verdict in case of disputed right until 12 Edw. II. st. 1, c. 2. The breve testatum in England developed into the FEOFFMENT (q.v.), later into the deed of grant (see REAL ESTATE) ; in Scotland into the charter, and later into the disposition. In canon law breve denoted a letter under the pope's seal. In old English ecclesiastical law a brief meant letters patent issued out of Chancery to churchwardens or other officers for the collection of money for church purposes. Such briefs were regulated by 4 Anne c. 14, but are now obsolete, although they are still to be found named in one of the rubrics in the communion service, of the Book of Common Prayer. In English legal practice brief now denotes the written instructions put into the hands of counsel to form the basis of his case. It was probably so called from its at first being only a copy of the original writ. Such a brief is in Scotland called a memorial. History The writ in English law still occupies a very important of writ in position, which can scarcely be understood without a |!'"^llsh sketch of its history. To a certain extent this history has already been given under PLEADING, for the whole theory of pleading depends in the last resort upon the writ. Writ or breve was at first used in a less technical sense than that which it afterwards assumed: thus in the Leges Henrici Frirni it simply means a letter from the king, and in the Assize of Clarendon (1166) imbreviari means to be registered. It became formalized by the reign of Henry II., and precedents are given by Glanvill. The writ process was at that date the foundation of all civil justice in the king's court, and of much in the lower courts, and was a profitable source of revenue to the exchequer. Every writ had to be purchased (breve perquirere was the technical term). This purchase developed in later times into the payment of a fine to the king where the damages were laid above £40. The usual scale was 6s. 8d. for every 100 marks claimed. In suing out a writ of covenant, the basis of the proceedings in levying a fine (see ENTAIL), the king was entitled to his primer Jine, i.e., one-tenth of the annual value of the land concerned. The sale of writs was forbidden by Magna Charta and other statutes in certain cases, especially that of the writ de odio et atia in favour of the liberty of the subject. A solicitor was so called because his original duty was to solicit or sue out a writ and take the due proceedings by paying the proper line. The costs of a writ purchased were first allowed to a successful demandant by the Statute of Gloucester, 6 Edw. I. c. 1. Through the Norman period the pre-rogative of issuing writs seems to have been undisputed. Glanvill's precedents did not exhaust all possible forms, for in the time of Bracton, in the 13th century, it was still possible to frame new writs at the pleasure of the crown. The Provisions of Oxford in 1258 put an end to this by enacting that the chancellor should not seal anything out of course (i.e., any writ for which there was no precedent) by the will of the king, but that he should do it by the council. In 1285 the Statute of Westminster the Second, 13 Edw. I. st. 1, c. 24, re-established the power of the crown within certain limits, that is, in causes of action in a similar case falling under the same law (in, consimili casu cadente sub eodem jure) as those for which precedents of writs already existed in the Chancery (see TRESPASS, TROVER). These precedents were at an early date recorded in the Registrum Brevium, called by Sir Edward Coke the oldest book in the common law, Apart from the powers given by the statute, new writs could only be issued by the authority of parliament, and writs are sometimes found set out in statutes, especially in the Statutum Wallise, 12 Edw. I. c. 7, where precedents of the most usual writs will be found. The Statute of Westminster the Second itself contained precedents of the writ of formedon and of many others. The original flexibility of the writ was thus limited within comparatively narrow bounds. The right to the issue of the writ determined the right of action. So essential was the writ that it was a legal axiom in Bracton that no one could sue at law without a writ, and it was called by Coke, in his introduction to Littleton, 'o the heartstrings of the common law." As such it occupied an important place in some of the leading statutes dealing with constitutional rights. The Statute of Marl-bridge, 52 Hen. III. c. 22, forbade a lord to distrain his freeholders to answer for their freeholds, or for anything touching their freeholds, without the king's writ. By 25 Edw. III. st. 5, c. 4, it was accorded, asserted, and stablished that none should be taken by petition or sug-gestion made to the king or his council unless by indict-ment or presentment in due manner or by process made by writ original at the common law. 42 Edw. III. c. 3 provided that no man should be put to answer without presentment before justices, or matter of record, or by due process and writ original according to the old law of the land. Both these statutes were recited and the general principle confirmed by 16 Car. I. c. 10. Uniformity of procedure was secured by 27 Hen. VIII. c. 24, by which all writs were to be in the king's name in a county palatine or liberty, but tested by those who had the county palatine or liberty. It was not until 1731 that, by virtue of 4 Geo. II. c. 26, writs were framed in the English language. They had previously been in Latin ; this accounts for the Latin names by wdiich a large number are still known. The writ was issued from the common law side of the Chancery, and was in the special charge of the manager and petty bag offices. Though issuing from the king's Chancery, it did not necessarily direct the trial of the question in the king's court. In whatever court it was returnable, it called in the aid of the sheriff as executive officer. It was either addressed to him or, if addressed to the party alleged to be in default, it concluded with a threat of con-straint by the sheriff in the event of disobedience, generally in those terms, " et, nisi feceris, vicecomes de N. faciat ne amplius clamorem audiam pro defectu justitiae." If the writ was returnable in the county court or the lord's court, the sheriff or the lord sat as the deputy of the king, not by virtue of his inherent jurisdiction. The writ was not necessary for the initiation of proceedings in these courts or before the justices in eyre (who sat as judges of the county court), but a custom seems to have grown up of suing out a writ from the king where the claim was above 40s. Cases were transferred from the lord's court to the county court by writ of tolt (so called because it removed, tollit, the case), from the latter to the king's court by writ of pone (so called from its first word). By Magna Charta the power of bringing a suit in the king's court in the first instance by writ of praecipe was taken away, and the writ was thenceforth only returnable in the king's court where the tenant held of the king in capite, or where the lord had no court or abandoned his right. Hence it became a common form in the writ of right to allege that the lord had renounced his court (dominus remisit curiam) so as to secure trial in the king's court. Besides being used for the trial of disputes, writs addressed to sheriffs, mayors, commissioners, or others were in constant use for financial and political purposes, e.g., for the collection of fifteenths, scutage, tallage, &c, for summons to the council and later to parliament, and for recalling a parliament, the last by means of the rarely occurring writ de revocatione parlia-ments.
There were several divisions of writs (excluding those purely financial and political), the most important being that into original and judicial, the former (tested in the name of the king) issued to bring a suit before the proper court, the latter (tested in the name of a judge) issued during the progress of a suit or to enforce judgment. Original were either optional, i.e., giving an option of doing a certain act or of showing cause why it was not done, beginning with the words pirxcipe quod reddat, the principal example being the writ on which proceedings in a common recovery (see ENTAIL) were based, or per-emptory, i.e., calling on a person to do a certain act, beginning with the words si A fecerit te securum. Original were also either de cursu or magistralia, the former those fixed in form and depending on precedent, the latter those framed by the masters in Chancery under the powers of the Statute of Westminster the Second. They were also either general or special, the latter setting forth the grounds of the demand with greater particularity than the former. By 5 Geo. II. c. 27 special writs were confined to causes of action amounting to £10 or upwards. There was also a division of writs into writs of right (ex dehito justitix), such as habeas corpus, and prerogative writs (ex gratia), such as mandamus (see PREROGATIVE). Coke and other authorities mention numerous other divisions, but those which have been named appear to be the principal.
The most interesting form of writ from the historical point of view was the writ of right (breve de recto), called by Blackstone " the highest writ in the law," used at first for debt and other personal claims, afterwards confined to the recovery of real estate as the writ of right par excellence. It was so called from the words plenum rectum contained in it, and was the remedy for obtaining justice for ouster from or privation of the freehold. By it property as well as possession could be recovered. It generally lay in the king's court, as has been said, by virtue of a fictitious allegation. In that case it was addressed to the sheriff and was called a writ of right close. It was also a writ of right close where the lands in dispute were held in antient demesne. When addressed to the lord and tried in his court, it was generally a writ of right patent. After the appearance of the tenant the demandant in a writ of right counted, that is, claimed against the tenant according to the writ, but in more precise terms, the writ being as it were the embryo of the future count. The trial was originally by battle (see TRIAL), but in the reign of Henry II. an alternative pro-cedure was introduced, interesting as the earliest example of the substitution of something like the JURY (q.v.) system for the judicial combat. A writ de magna assisa eligenda was directed to the sheriff commanding him to return four knights of the county and vicinage to the court, there to return twelve other knights of the vicinage to try upon oath the question contained in the writ of right (technically called the mise). This mode of trial was known as trial by the grand assize. Generally the whole of the sixteen knights were sworn, though twelve was a sufficient number. The last occasion of trial by the grand assize was in 1835. But long before that date possessory had from their greater convenience tended to supersede proprietary remedies, and in most cases the title was sufficiently determined by the assizes of other kinds, especially that of novel disseisin and later by pro-ceedings in ejectment (see POSSESSION). The oath of the champion on proceedings in a writ of right where the alternative of the judicial combat was accepted was regulated by statute, 3 Edw. I. c. 41. The writ of right is also interesting as being the basis of the law of LIMITATION (q.v.). By the Statute of Merton, 20 Hen. III. c. 8, no seisin could be alleged by the demandant but from the time of Henry II. By 3 Edw. I. c. 39 the time was fixed at the reign of Richard I., by 32 Hen. VIII. c. 2 at sixty years at the most. There were other writs of right with special names, e.g., the writ of right by the custom of London for land in London, the writ of right of advowson, brought by the patron to recover his right of presentation to a benefice, and the writs of right of dower and de rationabili parte, the latter brought by coparceners or brothers in gavelkind. There were also writs in the nature of a writ of right, e.g., formedon, brought by a reversioner on discontinuance by a tenant in tail and given by the Statute De Donis (see ENTAIL) ; escheat, brought by the lord where the tenant died without an heir; ne injuste vexes, to prohibit the lord from exacting services or rents beyond his due ; de nativo habendo, to recover the inheritance in a villein; and the little writ of right close according to the custom of the manor, to try in the lord's court the right of the king's tenants in antient demesne.
Up to 1832 an action was (except as against certain privileged persons, such as attorneys) commenced by original writ, and writ practically became the equivalent of action, and is so used in old books of practice, such as Booth on Real Actions. The law was gradually altered by legislation and still more by the introduction of fictitious proceedings in the common law courts, to be described later, by which the issue of the original writ was suspended, except in real actions, which were of comparatively rare occurrence. The original writ is no longer in use in civil procedure, an action being now in all cases commenced by the writ of summons, a judicial writ, a procedure first introduced in 1832 by 2 Will. IV. c. 39. In the follow-ing year an immense number of the old writs were abolished by 3 and 4 Will. IV. c. 27. An exception was made in favour of the writ of right of dower, writ of dower wide nihil habet, QUARE IMPEDIT (q.v.), and EJECTMENT (q.v.), and of the plaints for free bench and dower in the nature of writs of right. Ejectment was remodelled by the Common Law Procedure Act, 1852; the other writs and plaints remained up to the Common Law Procedure Act, 1860, by which they were abolished. Other writs which have been superseded by simpler proceedings, generally by ordinary actions, are those of the four assizes of novel disseisin, juris utrum, mort d'auncester, and darrein presentment (see ASSIZE), estrepement and waste (see WASTE), monstrans de droit (see PETITION), NUISANCE (q.v.), PARTITION (q.v.), prxmunire (see TREASON), QUO WARRANTO (q.v.), SCIRE FACIAS (q.v.), subpoena (see TRUST), and warrantia chartx (see WARRANTY). The number of writs was so large that any exhaustive list of them is almost impossible, but a few of those of more special interest which have become obsolete may be shortly Obsolete, mentioned. Admensuratio lay against persons usurping writs, more than their share of property. It was either dotis or pasturx, the latter, like the Scotch " souming and rouming," being the remedy for surcharge of common. Alias and pluries writs were issued when a previous writ had been disobeyed. Attaint lay to inquire by a jury of twenty-four whether a jury of twelve had given a false verdict. It was superseded in the 16th century by the practice of setting aside a verdict or granting a new trial, and was finally abolished by 6 Geo. IV. c. 50. Audita querela was a means of relieving a defendant by a matter of discharge occurring after judgment. After having been long practically superseded by stay of execution it was finally abolished by the rules made under the Judicature Act, 1875. Capias, latitat, and quominus are interesting as showing the extraordinary mass of fictitious allegation in the old procedure of the common law courts before 1832. By capias ad respondendum followed by alias and pluries the Court of Common Pleas was enabled to take cognizance of an action without the actual issue of an original writ. The capias was a judicial writ issued to follow an original writ of trespass quia clausum /regit. The issue of the original writ and after a time the issue of the capias became mere fictions, and proceedings com-menced with the issue of another writ called capias testatum. On return of the writ the plaintiff elected to proceed with a cause of action other than trespass, and the real merits of the case were eventually reached in this tortuous manner. After being served with the capias the defendant was bound to put in common or special bail, the former being sufficient in all but exceptional cases. Here again there was a fiction, for his common bail were John Doe and Richard Roe. The same fictitious pair also appeared on the side of the plaintiff as his pledges for the due prosecution of his action. By latitat and quominus the Courts of King's Bench and Exchequer respectively assumed jurisdiction by a further series of fictions over ordinary civil actions. The writ of latitat, following the bill of Middlesex, itself in later times generally a fiction, alleged that the defendant was in hiding out of Middlesex, after committing a trespass quia clausum /regit, for which he was in the custody of the king's marshal in the Marshalsea prison. The real cause of action was then stated in what was called the ac etiam clause. Writs filed in the King's Bench and Common Pleas were in the custody of an officer of each court called the custos brevium. The writ of quominus alleged that the plaintiff was the king's debtor and that through the defendant's default he was unable to discharge the debt. Deceit or disceit lay for the redress of anything done deceitfully in the name of another, but was especially used to reverse a judgment in a real action obtained by collusion. Distraint of knighthood was a mode of obtaining money for the crown by the exercise of the prerogative of forcing every one who held a knight's fee under the crown to be knighted or to pay a fine. The earliest extant writ was issued in 1278. It was abolished by 16 Car. I. c. 20. Entry was a possessory remedy against one alleged to hold land unlawfully. It was divided into a large number of kinds, and was the subject of much of the old real property learning. The ones most commonly occurring were the writs of entry in the per and in the post, the former alleg-ing, the latter not, the title of the heir from the original disseisor. When writ had come to be equivalent in mean-ing to action, one of the divisions of possessory actions was into writs of entry and writs of assize. A special writ of entry for dower was given by 6 Edw. I. c. 7. Excommunicato capiendo was the authority for arresting an excommunicated person and detaining him until he was reconciled to the church, when he was liberated by the writ de excommunicato deliberando. These proceedings were abolished and the writ de contumace capiendo substi-tuted by 57 Geo. III. c. 127 (see EXCOMMUNICATION). Ilxrelico comburendo was issued on certificate of conviction for heresy by the ecclesiastical court. A case of burning two Arians under this writ occurred as lately as the reign of James I. It was abolished by 29 Car. II. c. 9. Homine replegiando, mainprize, and odio et atia (or bono et mold) were all ancient means of securing the liberty of the sub-ject, long superseded by the more effective procedure of habeas corpus. The last of the three enjoined the sheriff to inquire whether a committal on suspicion of murder ' was on just cause or from malice and ill-will. It was regulated by Magna Charta and the Statute of Westminster the Second, but, having been abused to the advantage of sheriffs, it was taken away by 28 Edw. III. c. 9. Nisi prius was given by the Statute of Westminster the Second, 13 Edw. I. c. 30. Its place is now taken by the com-mission of NISI PRIUS (q.v.). Orando pro rege et regno, before the present Book of Common Prayer, enjoined public prayers for the high court of parliament. Privilege com-manded the release of a prisoner entitled to privilege of parliament. Protection was given for enabling a man to be quit of suits brought against him while absent beyond seas. It was dealt with by a large number of old statutes, but" none has been issued since 1692. Rebellion was a means of enforcing obedience to the process of the Court of Chancery. In modern procedure attachment takes its place. Rege inconsulto commanded judges of a court not to proceed in a case which might prejudice the king until his pleasure should be known. Replevin was a survival of the most archaic law. The procedure consisted of writ on writ to an almost unlimited extent. It originally began by the issue of a writ of replevin or replegiari facias. The case might be removed from the county court to a superior court by writ of recordari facias loquelam. If the dis-trainor claimed a property in the goods distrained, the question of property or no property was determined by a writ de proprietate probanda, and, if decided in favour of the distrainor, the distress was to be returned to him by writ de retorno habendo. If the goods were removed or concealed, a writ of capias in withernam enabled the sheriff, after due issue of alias and pluries writs, to take a second distress in place of the one removed. It is said that the question whether goods taken in withernam could be replevied was the only one which the Admirable Crichton found himself unable to answer. For the modern practice, see DISTRESS, REPLEVIN. Reslitutione extracti ab ecclesia lay for restor-ing a man to a sanctuary from which he had been wrong-fully taken (see SANCTUARY). Secta lay for enforcing the duties of tenants to their lord's court, e.g., secta ad molen-dinum, where the tenants were bound to have their corn ground at the lord's mill. Seisina habenda allowed delivery of lands of a felon to the lord after the king had had his year, day, and waste (see WASTE). Vi laica removenda is curiously illustrative of ancient manners. It lay where two parsons contended for a church, and one of them entered with a great number of laymen and kept out the other by force. As lately as 1867 an application for the issue of the writ was made to the Chancery Court of the Bermuda Islands, but refused on the ground that the writ was obsolete, and that the same relief could be obtained by injunction. On appeal this refusal was sustained by the privy council.
Of writs now in use, other than those for elections, all are Writs judicial, or part of the PROCESS (q.v.) of the court, except per- now iu haps the writ of error in criminal cases. They are to be hereafter use. issued out of the central office of the Supremo Court, or the office of the clerk of the crown in Chancery, provision having been made by the Great Seal (Officers) Act, 1874, and the Judicature (Officers) Act, 1879, for the transfer on the next vacancy of the duties of the clerk of the petty bag to those officers. By the latter Act the record and writ clerks, previously officers of the Chancery Division, were abolished. By 40 and 41 Vict. c. 41 the wafer great seal or the wafer privy seal may be attached to writs instead of the impression of the great or privy seal. The judicial writs issue chiefly, if not entirely, from the central office, with which the old crown office was incorporated by the Act of 1879. The crown office had charge of writs occurring in crown practice, such as quo warranto and certiorari.
In local civil courts, other than county courts, writs are usually Judicial issued out of the office of the registrar, or an officer of similar writs, jurisdiction. By 35 and 36 Viet. c. 86 writs of execution from such courts for sums under £20 may be stamped or sealed as of course by the registrar of a county court, and executed as if they had issued from the county court. In county court practice the WARRANT (q.v.) corresponds generally to the writ of the Supreme Court. Most of the present law on the subject of writs is contained in the Rules of the Supreme Court, 1883, Ord. xlii.-xliv., and in the Crown Office Rules, 1886. Both sets of rules contain numerous pre-cedents in their schedules. By Ord. ii. r. 8 of the rules of 1883 all writs (with certain exceptions) are to be tested in the name of the lord chancellor, or, if that office be vacant, in the name of the lord chief justice. The main exceptions are those which occur in crown practice, which are tested by the lord chief justice. The writ of error bears the tests of the king or queen, '' witness our-selves." Before the issue of most writs a praecipe, or authority to the proper offices to issue the writ, is necessary. This is of course not to be confounded with the old original writ of prmcipe. Writs affecting land must generally be registered in order to bind ,the land (see REGISTRATION). A writ cannot as a rule be served on Sunday (see SUNDAY). Some of the more important modern writs (other than those of an extrajudicial nature) may be shortly noticed. HABEAS CORPUS, MANDAMUS, and PROHIBITION (qq.v.) have been already treated. Writs are generally, unless where the contrary is stated, addressed to the sheriff. Abatement or nocu-mento amovendo enjoins the removal of a nuisance in pursuance of a judgment to that effect. Ad quod damnum is for the purpose of inquiring whether a proposed crown grant will be to the damage of the crown or others. It is still in use, and recent examples will bo found in the London Gazette. If the inquiry be determined in favour of the subject, a reasonable fine is payable to the exchequer by 27 Edw. I. st. 2. Attachment is issued as a means of support-ing the dignity of the court by punishment for contempt of its orders (see CONTEMPT OF COURT). Since the Judicature Acts a uniform practice has been followed in all the branches of the High Court, and a writ of attachment can now only be issued by leave of the court or a judge after notice to the party against whom it is to be issued. Capias : the old writs of capias ad satisfaciendum and capias utligatum may still bo used, but their importance has been much diminished since the alterations made in the law by the Debtors Act, 1869, and the abolition of civil outlawry (see OUTLAW). Certiorari is a writ in very frequent use, by which the pro-ceedings of an inferior court are brought up for review by the High Court. In general it lies for excess of jurisdiction as mandamus does for defect. The Summary Jurisdiction Act, 1879, makes the writ no longer necessary where a special case has been stated by a court of quarter sessions. Delivery enforces a judgment for the delivery of property without giving the defendant (unless at the option of the plaintiff) power to retain it on payment of the assessed value. Distringas lay to distrain a person for a crown debt or for his appearance on a certain day. Its operation has been much curtailed by the substitution of other proceedings by 28 and 29 Vict. c. 104, and the rules of the Supreme Court. It now seems to lie only against inhabitants for non-repair of a highway. Dis-tringas nuper vicecomitem is a writ calling on an ex-sheriff to account for the proceeds of goods taken in execution. Elegit is founded on the Statute of Westminster the Second, and is so named from the words of the writ, that the plaintiff has chosen (elegit) this particular mode of satisfaction. It originally ordered the sheriff to seize a moiety of the debtor's land and all his goods, save his oxen and beasts of the plough. By 1 and 2 Vict. c. 110 the elegit was extended to include the whole of the lands, and copy-holds as well as freeholds. By the Bankruptcy Act, 1883, an elegit no longer applies to goods. Error, the only example of an original writ remaining, was at one time largely used in both civil and criminal proceedings. It was abolished in civil procedure by the Common Law Procedure Act, 1852, and proceedings in error by the rules made under the Judicature Act, 1875. A writ of error to the Queen's Bench Division still lies in criminal cases, though it is rarely brought, for it only lies for mistakes appearing on the record, and recent legislation has given large powers of amending such mistakes. The fiat of the attorney-general is neces-sary before it can be sued out. Exigent (with proclamation) forms part of the process of outlawry now existing only against a criminal. It depends on several statutes, commencing in 1344, and is specially mentioned in the Statute of Provisors of Edward III., 25 Edw. III. st. 6. Extent is the writ of execution issued by the crown for a crown debt of record. The sale of chattels seized under an extent takes place under a writ of venditioni exponas. A crown debtor is entitled to an extent in aid against a person indebted to him. Where a crown debtor has died a writ reciting his death, and so called diem clausit cxtremum, issues against his property. Fieri facias is the ordinary writ of execution on a judgment commanding the sheriff to levy the sum, interest, and costs on the personal pro-perty of the party. Where the sheriff has not sold the goods, venditioni exponas issues to compel him to do so. Where the party is a beneficed clergyman, the writ is one of fieri facias de bonis ecelesiasticis or of sequestrarifacias (addressed to the bishop). The latter writ also issues in other cases of an exceptional nature, as against a corporation and to seize a pension. It is addressed to commissioners, not to the sheriff. Habere facias possessionem is given to the owner of a tithe or rent charge, enabling him to have possession of the lands chargeable therewith until arrears due to him are paid (see TITHES). Indicavit is still nominally grantablo under the Statute De Conjunciim Feoffatis of 34 Edw. I., and is a particular kind of prohibition granted to the patron of an advow-son. Inquiry issues for the assessment of damages by the sheriff or his deputy. It represents to some extent the old writ of justieies, and the later writ of trial allowed by 3 and 4 Will. IV. c. 42, but is narrower in its operation, for under the last-named writs the whole case or issues under it could be tried. Before an inquiry the liability has been already established. Levari facias is the means of levying execution for forfeited recognizances (see RECOGNIZANCE). The Bankruptcy Act, 1883, abolished it in civil proceedings. Ne exeat regno was at one time issued by virtue of the prerogative to prevent any person from leaving the realm, a form of restraint of liberty recognized by parliament in 5 Ric. II. c. 2. It has now become a means of preventing a debtor from quitting the kingdom, and so withdrawing himself from the jurisdiction of the court with out giving security for the debt. There is some doubt whether it has not been impliedly superseded by the powers given by Ord. lxix. of the Rules of the Supreme Court. Non omittas is for executing pro-cess by the sheriff in a liberty or franchise, where the proper officer has neglected to do so. It rested originally chiefly upon the Statute of Westminster the Second, c. 39, and is now regulated by the Sheriffs Act, 1887, which repeals the previous enactment. Possession (also called assistance) enjoins the sheriff to give possession of land to the party entitled thereto under a judgment for such possession. In admiralty, where the judgment is for possession of a ship, the writ is addressed to the marshal. Procedendo is the converse of prohibi-tion. It directs the lower court to proceed with the case. It also lies to restore the authority of commissioners suspended by super-sedeas. Restitution restores property, either real or personal, after the right to it has been judicially declared. Thus it lies on behalf of the owner of real property under the statutes of forcible entry and of personal property under the Larceny Act, 1861. Significavii, once a writ, appears since 57 Geo. III. c. 127 to be merely a notice. It is a part of the proceedings against a person disobeying the order of an ecclesiastical court, and consists in a notification to the crown in Chancery of the disobedience. Thereupon a writ de contumace capiendo issues for his arrest. On his subsequent obedience or satisfaction, a writ of deliverance is granted. Precedents of these writs are given in the Act named. Subpoena is the ordinary means of securing the presence of a witness in court, and is addressed to the person whose attendance is required. It is so called from its containing the words "and this you are not to omit under the penalty of £100," &c. The subpoena may be either ad testificandum, to give evidence, or duces tecum, to produce documents, &c., or both combined. By special order of a judge under 17 and 18 Vict. c. 23 a subpoena may be issued from any court in England, Scotland, or Ireland to compel the attendance of a witness out of the juris-diction. Summons is the universal means of commencing an action in the High Court. It is addressed to the defendant, and may be either generally or specially indorsed with a statement of the nature of the claim made. The latter form of indorsement is allowed in certain cases of debt or liquidated demand, and gives the plaintiff the great advantage of entitling him to final judgment in default of appearance by the defendant, and even in spite of appearance unless the defendant can satisfy a judge that he has a defence or ought to be allowed to defend. No statement of claim is necessary in case of a specially indorsed writ, the indorse-ment being deemed to be the statement. The writ may be issued out of the central office or out of a district registry, and the plaintiff may name on his writ the division of the High Court in which he proposes to have the case tried. There are special rules governing the issue of writs in probate and admiralty actions. The writ remains in force for twelve months, but maybe renewed for good cause after the expiration of that time. Service must be personal, unless where substituted service is allowed, and in special cases, such as actions to recover land and admiralty actions. Service out of the jurisdiction of a writ or notice of a writ is allowed only by leave of the court or a judge. Notice of the issue of a writ, and not the writ itself, is served on a defendant who is neither a British subject nor in British dominions. The law is contained in the Rules of the Supreme Court, especially Ord. ii.—xi. and xiv. Supersedeas com-m ands the stay of proceedings on another writ. 11 is often combined with procedendo, where on a certiorari the High Court has decideil in favour of the jurisdiction of the inferior court. It is also used for removing from the commission of the peace, and for putting an end to the authority of, any persons acting under commission from the crown. Venire facias is the first proceeding in outlawry, call-ing upon the party to appear. Under the old practice a venire facias de novo was the means of obtaining a new trial. Ventre inspiciende, appears still to be competent, and is a curious relic of antiquity. It issues on the application of an heir presumptive in order to determine by a jury of matrons whether the widow of a deceased owner of lands be with child or not. Almost exactly the same pro-ceeding was known in Roman law under the name of intcrdictum de inspiciendo ventre, the prfetor sending five women to make a report.
The principal writs of a non-judicial nature relate to parliament or some of its constituent elements. Parliament is summoned by writs. the king's writ issued out of Chancery by advice of the privy coun-cil. The period of forty days once necessary between the writ and the assembling is now by 15 and 16 Vict. c. 23 reduced to thirty-five days. Writs of summons are issued to the lords spiritual and temporal before every new parliament. Those to Irish represen-tative peers are regulated by the Act of Union, those to archbishops and bishops by 10 and 11 Vict. c. 108. New peerages are no longer created by writ, but the eldest son of a peer is occasionally summoned to the House of Lords in the name of a barony of his father's. Earl Percy, the eldest son of the duke of Northumber-land, was so summoned in 1887, and sits as Baron Lovaine (see PEERAGE). With respect to election of members of the House of Commons, the procedure differs as the election takes place after a dissolution or on a casual vacancy. After a dissolution the writ is issued, as already stated, by order of the crown in council. For a single election the warrant for a new writ is issued during the session by the speaker after an order of the house made upon motion ; during the recess by the speaker's authority alone, under the powers given by 24 Geo. III. sess. 2, c. 26, 21 and 22 Vict, c. 110, and 26 Vict. c. 20. The warrant is addressed to the clerk of the crown in Chancery for Great Britain, to the clerk of the crown and hanaper of Ireland. A supersedeas to a writ has some-times been ordered where the writ was improvidently issued. The time allowed to elapse between the receipt of the writ and the elec-tion is fixed by the Ballot Act, 1872, sched. 1, at nine days for a county or a district borough, four days for any other borough. The writ is to be returned by the returning officer to the clerk of the crown with the name of the member elected endorsed on the writ. Sched. 2 gives a form of the writ, which is tested, like the writ of error, by the queen herself. The returning officer is the sheriff in counties and counties of cities (such as Chester), generally the mayor in cities and boroughs, and the vice-chancellor in univer-sities (see PARLIAMENT). Other writs for election are those for CONVOCATION (q.v.), which is by 25 Hen. VIII. c. 19 summoned by the archbishop of the province on receipt of the king's writ, and for election of coroners, verderers of royal forests, and some other officers whose office is of great antiquity. The writ de coronatore cligendo, addressed to the sheriff, is specially preserved by the Coroners Act, 1887.
Offences relating to writs are dealt with by the Criminal Law Con-solidation Acts of 1861; larceny by 24 and 25 Vict. c. 96, s. 30; forgery by 24 and 25 Vict. c. 98, s. 27. The maximum penalty is seven years' penal servitude. Scotland. Scotland.—Writ is a more extensive term than in England.
Writs are either judicial or extrajudicial, the latter including deeds and other instruments,—as, for instance, in 42 and 43 Vict, c. 44, and in the common use of the phrase "oath or writ" as a means of proof. In the narrower English sense both "writ" and '' brieve " are used. The brieve was as indispensable a part of the old procedure as it was in England, and many forms are given in Jiegiam Majestatem and Quoniam Attachiamenta. It was a com-mand issued in the king's name, addressed to a judge, and ordering trial of a question stated therein. Its conclusion was the will of the summons (see WILL, SUMMONS). In some cases proceedings which were by writ in England took another form in Scotland. Eor instance, the writ of attaint was not known in Scotland, but a similar end was reached by trial of the jury for wilful error. The English writ of ne exeat regno is represented by the meditatio ftigas warrant. Most proceedings by brieve, being addressed to the sheriff, became obsolete after the institution of the Court of Session, when the sheriffs lost much of that judicial power which they had enjoyed to a greater extent than the English sheriff (see SHERIFF). The executive functions of the English sheriff are performed by the messengers-at-arms. An English writ of execution is represented in Scotland by diligence, chiefly by means by warrants to messen-gers-at-arms under the authority of signet letters in the name of the king. The brieve, however, has not wholly disappeared. Brieves of tutor}', terce, and division are still competent, but not in use. Other kinds of brieve have been superseded by simpler procedure, e.g., the brieve of service of heirs by 10 and 11 Vict, c. 47, for which a petition to the sheriff was substituted by that Act and 31 and 32 Vict. c. 101. The brieve of cognition of insane persons is now the only one of practical importance. The old brieves of furiosity and idiotcy were abolished, and this new form was introduced by the Act last named. Writs eo nomine have been the subject of much recent legislation. The writs of capias, habeas, certiorari, and extent were replaced by other proceedings by 19 and 20 Vict. c. 56. The writ of clare constat was introduced by 21 and 22 Viet. c. 76. It and the writs of resignation and confirmation (whether granted by the crown or a subject superior) were regulated by 31 and 32 Vict. c. 101. By the same Act crown writs are to be in the English language, and registered in the regis-tor of crown writs. They need not be sealed unless at the instance of the party against whom they are issued. Writs of progress (except crown writs, writs of clare constat, and writs of acknow-ledgment) were abolished by 37 and 38 Vict. c. 94. The clare constat writ is one granted by the crown or a subject superior for the purpose of completing title of a vassal's heirs to lands held by the deceased vassal. Where the lands are leasehold the writ of acknowledgment under 20 and 21 Vict. c. 26 is used for the same purpose. By 40 and 41 Viet. c. 40 the form of warrant of execution on certain extracts of registered writs is amended. Extracts, of registered writs are to be equivalent to the registered writs them-selves. Writs registered in the register of sasines for preserva-tion only may afterwards be registered for preservation and execution. By 22 Geo. II. c. 48, passed for the purpose of assimi-lating the practice of outlawry for treason in Scotland to that in use in England, the court before which an indictment for treason or misprision of treason is found, is entitled on proper cause to issue writs of capias, proclamation, and exigent. Many writs are by the Stamp Act, 1870, chargeable with a duty of five shillings. In some respects the proceedings in parliamentary elections differ from those in use in England. Thus the writ in university elec-tions is directed to the vice-chancellors of Edinburgh and Glasgow respectively, but not to those of St Andrews and Aberdeen, and there is an extension of the time for the return in elections for Orkney and Shetland, and for the Wick burghs. Representative peers of Scotland were by the Act of Union to be elected after writ issued to the privy council of Scotland. On the abolition of the privy council a proclamation under the great seal was substituted by 6 Anne, c. 23.
United States.—Writs in United States courts are by Act of United Congress to be tested in the name of the chief justice of the United States. States. By State laws writs are generally bound to be in the name of the people of the State, in the English language, and tested in the name of a judge. AVrits of error have been the subject of much legislation by the United States and by the States. In New York writs of error and of ne exeat have been abolished. Writs as parts of real actions have been generally superseded, but in Massachu-setts a writ of entry on disseisin is still a mode of trying title. Writs of dower and of estrepement are still in use in some States. By the law of some States, e.g., New Jersey, writs of election are issued to supply casually occurring vacancies in the legislature.
Authorities.—The importance of the writ in procedure led to the compilation of a great body of law and precedent at an early date. In addition to the Registium Breviumlhave were, among other old works, the Natura Brevium, first published in 1525; Theloall, Le Digest des Briefes Originates (1579); Fitzherbert, Le Nouvel Natura Brevium (1588); OJfkina Brevium (1079). See too Coke upon Littleton, 158, 159, 2 Coke's Institutes, 39. Many precedents will also be found in the collection of Parliamentary Writs and in Stubbs's Select Charters. Old books of practice, such as Tidd's Practice, Corner's down Practice, and Booth On Real Actions, contained much law on the subject. For the history Spence's Equitable Jurisdiction, vol. i. bk. ii. ch. viii., Forsyth's Hist, of Trial by Jury, Stephen On Pleading, and Bigelow's Hist, of Procedure, ch. iv., may be consulted. There appears to be no book dealing with the writ in modern practice, but sufficient information is contained in the ordinary treatises on procedure. (J. Wf.)
Federal sovereign immunity versus state environmental fines.
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Article Excerpt
I. INTRODUCTION
II. BACKGROUND A. Fiscal Law Concerns B. History of Sovereign Immunity III. OVERVIEW OF MAJOR ENVIRONMENTAL LEGISLATION A. Acts Not Subjecting Federal Facilities to State Fines 1. Clean Water Act 2. Comprehensive Environmental Response, Compensation and Liability Act 3. Toxic Substances Control Act 4. Emergency Planning and Community Right-to-Know Act 5. Pollution Prevention Act B. Acts Subjecting Federal Facilities to State Fines 1. Resource Conservation and Recovery Act 2. Safe Drinking Water Act 3. Toxic Substances Control Act: Lead-Based Paint C. Act Where State Fine Issue is Unsettled: Clean Air Act IV. CONCLUSION
I. INTRODUCTION
Over the past several decades, Congress has enacted numerous laws designed to protect human health and the environment. All major environmental statutes provide a mechanism for individual states to assume the primary responsibility for enforcing these laws and regulations. In order for a state to receive the delegation of authority to run a particular environmental program, the state must first enact adequate laws and regulations to satisfy the U.S. Environmental Protection Agency (EPA) that the state can properly enforce environmental standards as least as stringent as those imposed by federal law. "Cooperative federalism" is a system whereby the federal government establishes statutory minimum standards and procedural requirements and then the states enact implementation and enforcement programs subject to EPA approval and oversight. (1) The delegation of primary responsibilities to the states has led to a complex system of intertwining federal and state environmental statutes and regulations.
Congress has amended most federal environmental statutes several times over the years to improve upon or expand the original design of the environmental protection schemes. Congress has also amended environmental laws to clarify its intent in the face of contrary court opinions. (2) This is particularly true with regard to waivers of federal sovereign immunity. (3) Without a clear and unambiguous waiver of sovereign immunity, federal law prohibits agencies from expending funds to comply with state environmental laws and regulations. (4)
Federal facilities take a particularly staunch stance on this concept when it comes to the payment of state environmental fines and penalties. States are clearly responsible for the majority of environmental enforcement actions (5) and some argue that federal facilities are among the worst at environmental compliance. (6) One of the primary goals of environmental enforcement is deterrence. (7) Conceptually, the fear that they will be substantially fined if they are caught is a deterrent to violating environmental laws. It is not difficult to see the conflict between the states' responsibility to enforce environmental compliance and a federal facility's claim that it does not have to pay fines for particular environmental violations. (8)
States assert that, without the authority to impose monetary fines against federal facilities, they are powerless to ensure environmental compliance. Such claims imply that federal facilities will not comply with environmental laws absent the threat of a punitive fine. This implication is erroneous. Over the years, federal facilities have worked hard to correct violations cited in enforcement actions, and the vast majority of these had no fines associated with them. The availability of sovereign immunity as a defense against punitive fines only acts as a shield to the payment of the fine, not as a sword against complying with the underlying statute. The implication also ignores the fact that federal employees are still subject to criminal prosecution. (9)
This article addresses the current status of the ever-changing nature of the law regarding federal sovereign immunity as it relates to the payment of state-imposed environmental fines. (10) Prior to exploring the current status of the law in this area, the article provides background information regarding the doctrine of sovereign immunity. The review of the major environmental legislation is organized into three categories: those not subjecting federal facilities to state fines, those that do, and those where the issue is unsettled. Federal facilities are not subject to punitive state fines under the Clean Water Act, the Comprehensive Environmental Response, Compensation and Liability Act, the Emergency Planning and Community Right-to-Know Act, and the Pollution Prevention Act. Federal facilities are subject to state fines for violations of hazardous waste regulations under the Resource Conservation and Recovery Act including its Underground Storage Tank provisions, the Safe Drinking Water Act, and the Toxic Substances Control Act's lead-based paint provisions.
Lastly, the authority for states to fine federal facilities under the Clean Air Act is in active litigation. After reviewing the current state of the law, it will become apparent that the trend is toward greater state authority. In that regard, another one of the great timbers in the sovereign immunity palisade will soon fall as federal facilities begin paying state fines for Clean Air Act violations.
II. BACKGROUND
A. Fiscal Law Concerns
When laced with having to pay a relatively minor fine for an undisputable environmental violation, installations often would prefer to just pay the fine to achieve a quick solution, without regard to sovereign immunity. The primary reason for this attitude is that installations value existing goodwill with the regulatory agencies and fear damaging the relationship if they balk at paying the fine. However, when installations explain why federal law prevents payment of the fine, usually good installation-regulator relationships remain intact. That is not to say, however, that state regulators always agree with the application of sovereign immunity--as evidenced by the body of case law resulting from litigation over the issue.
As a general proposition, federal agencies have no authority to use appropriated funds to pay fines or penalties resulting from their activities. (11) Only when an express statutory waiver of sovereign immunity exists may a federal agency do so. (12) The reason is that the Anti-Deficiency Act (ADA), (13) prohibits federal agencies from expending appropriated funds unless authorized by law. (14) Most importantly for those involved, federal employees are subject to adverse personnel actions (15) and criminal sanctions (16) for violating the ADA . Regulators are usually sensitive to the fact that installation personnel could possibly go to jail for paying a fine for which sovereign immunity has not been waived. Experienced regulators know that sometimes they have to agree to disagree, and, if necessary, let the lawyers sort out the conflicting legal interests.
B. History of Sovereign Immunity
The United States, as sovereign, is immune from suit except when it consents to be sued. (17) A court's jurisdiction to entertain a suit against the United States is defined by the terms of the consent. (18) Similarly, states may not enforce their regulations upon the United States and its agencies unless the United States consents to such regulation. (19)
Most courts and commentators agree that the idea behind our doctrine of sovereign immunity originated in the British common law with the axiom "the king can do no wrong" and the resulting inability of British subjects to sue the king in his own courts. (20) However, not all commentators agree that that is an accurate interpretation of the British history or that the doctrine was appropriately derived from that history. Some courts and commentators argue that British subjects had avenues of recourse against the king if he "did wrong," and some argue that the axiom "the king can do no wrong" really meant that the king was obliged to do no wrong because of his position of responsibility over his subjects. (21) In addition, some courts and commentators have argued that the assertion that British common law is the basis for our doctrine of sovereign immunity is incongruous with the ideals on which this country was founded and that, in fact, there is consent to suit contained in our Constitution. (22)
Although the history regarding the British common law is not clear, it is clear that British common law in some way initially contributed to what has evolved into the contemporary doctrine of sovereign immunity that we have in the United States . The idea that the sovereign could not be sued in his own courts was adopted in the United States , regardless of the reliability of the perceived history.
Unlike state sovereign immunity, however, federal sovereign immunity has no constitutional basis in the United States . (23) The doctrine of sovereign immunity in the United States has been established by the courts rather than the Constitution and, it can be argued, also has contemporary bases for its existence. (24)
In 1821, Justice Marshall decided a case in favor of the United States on the grounds that it could not be sued: "The universally received opinion is, that no suit can be commenced or prosecuted against the United States ; that the judiciary act does not authorize such suits." (25) The first Supreme Court to decide a case solely upon the idea that the federal government is immune from suit did so in 1846. (26) This Court found that "There was no jurisdiction of this case in the Circuit Court, as the government is not liable to be sued, except with its own consent, given by law. Nor can a decree or judgment be entered against the government for costs." (27) The Supreme Court continued to find that the federal government holds such a protection. (28)
Edwin M. Borchard is credited with inventing the phrase "sovereign immunity" in his article, Government Liability in Tort, published in the Yale Law Journal in 1921. (29) Courts began quoting Borchard's article and using the label "sovereign immunity" after that time. (30)
The development of the doctrine of sovereign immunity in the United States includes the Supreme Court identifying the characteristics of a waiver of sovereign immunity. The Supreme Court declared that a waiver of sovereign immunity must be unequivocally expressed in statutory text and may not be implied or inferred; it must be construed strictly in favor of the sovereign and not read for more than what the language strictly allows. (31) Since any waiver must appear clearly in the statutory text, legislative history cannot be used to clarify any ambiguity. (32) Where a waiver would subject federal facilities to regulation under state law, the rule requiring the waiver to be unambiguous applies with special force. "Because of the fundamental importance of the principles shielding federal installations and activities from regulation by the State, an authorization of state regulation is found only when and to the extent there is a 'clear congressional mandate,' 'specific congressional action' that makes this authorization of state regulation 'clear and unambiguous.'" (33) Likewise, the Supreme Court has insisted upon a particularly unambiguous statement where the alleged waiver would affect the public rise. (34) Moreover, the Supreme Court has commented sovereign immunity may only be waived by congressional legislation and that an agent of the federal government cannot waive sovereign immunity. (35) Given the ground rules established by the Supreme Court for waivers of sovereign immunity, environmental practitioners have no choice but to construe waivers very narrowly.
III. OVERVIEW OF MAJOR ENVIRONMENTAL LEGISLATION
A. Acts Not Subjecting Federal Facilities to State Fines
1. Clean Water Act
In 1972, Congress enacted the Clean Water Act (CWA), also known as the Federal Water Pollution Control Act. 33 U.S.C. [section] 1251-1376. The objective of the CWA is to "restore and maintain the chemical, physical, and biological integrity of the Nation's waters." (36) In order to achieve this objective, the CWA sets forth several ambitious goals and policies intended to control water pollution. (37) Furthermore, Congress specifically recognized the primary responsibility and rights of the states to control water pollution. (38) The most visible and mature program under the CWA is the National Pollutant Discharge Elimination System (NPDES). (39) The NPDES provides for the issuance of NPDES permits by the EPA or by authorized states. (40) In general, NPDES permits are required for discharges into the waters of the United States . (41) The permits impose limitations on the discharge of pollutants and establish related monitoring and reporting requirements in order to protect and improve the cleanliness of our Nation's waters. Lack of a required permit or noncompliance with a permit constitutes a violation of the CWA. (42)
The seminal case addressing sovereign immunity in an environmental law context is Dep't of Energy v. Ohio . (43) In this case, the Supreme Court resolved a split in the circuit courts (44) as to whether Congress waived sovereign immunity from liability for civil fines imposed by states for past violations of the CWA or Resource Conservation and Recovery Act (RCRA). (45) In reaching its conclusion, the Court drew a distinction between "coercive" and "punitive" fines. (46) Coercive fines are those imposed on federal facilities "to induce them to comply with injunctions or other judicial orders designed to modify behavior prospectively." (47) Punitive fines are those imposed to punish past violations of environmental laws. (48)
The State of Ohio argued that both the CWA's citizen-suit (49) and federal facilities sections (50) waive sovereign immunity for the fines in question. The Supreme Court disagreed. Regarding the citizen-suit provision, the Court reasoned that, although suit may be brought against the United States , the civil-penalties section (51) applies only to "persons" and the CWA does not include the United States in the definition of "person." (52) After extensive parsing of the federal facilities section, the Court also concluded that, because the statement of waiver is not unequivocal as to punitive fines, no waiver could be interpreted. (53) However, the Court did find a clear waiver for coercive fines. (54)
As a result of Dep't of Energy v. Ohio , Congress quickly enacted the Federal Facilities Compliance Act (FFCA) of 1992. (55) This act effectively overruled Dep't of Energy v. Ohio as it pertains to RCRA; (56) however, it notably did not address the CWA aspects of the case. (57) Consequently, Dep't of Energy v. Ohio is still good law as applied to the CWA, and federal facilities continue to be immune from state-imposed punitive fines for CWA violations. (58)
2. Comprehensive Environmental Response, Compensation and Liability Act
The Comprehensive Environmental Response, Compensation and Liability Act (CERCLA), (59) was enacted in 1980 in response to the serious environmental and health risks posed by industrial pollution. (60) "CERCLA is a comprehensive statute that grants the President broad power to command government agencies and private parties to clean up hazardous waste sites." (61) If a hazardous waste site meets certain conditions, the EPA may use the "Hazardous Substances Superfund" (62) to finance remediation of the site. Suits may be brought under CERCLA [section] 107 to ensure those parties actually responsible for environmental contamination, in whole or in part, are responsible for funding the cleanup. (63)
The Superfund Amendments and Reauthorization Act of 1986 added section 120, the Federal Facilities section, to CERCLA. (64)
The waiver of sovereign immunity in CERCLA [section] 120, (65) provides that agencies of the United States shall be subject to and comply with CERCLA in the same manner and to the same extent as any nongovernmental entity. (66) Furthermore, the waiver (67) imposes state law (68) requirements concerning removal and remedial action on federal facilities not included on the National Priorities List. (69)
However, when it comes to state-imposed, punitive, civil penalties, the United States Court of Appeals for the First Circuit concluded [section] 120 of CERCLA does not waive the federal government's sovereign immunity. (70) The Court followed the rationale of the Supreme Court in Dep't of Energy v. Ohio , and held that, because the language of CERCLA [section] 120 was not clear and unequivocal as to punitive civil penalties, a waiver of sovereign immunity could not be found. (71) Therefore, federal facilities do not pay state imposed fines under CERCLA. (72)
3. Toxic Substances Control Act
The Toxic Substances Control Act (TSCA) was enacted in 1976 by Congress in an effort to prevent injury to human health and the environment caused by chemical substances and mixtures. (73) The act and its amendments primarily serve to do the following three things: (1) require those who manufacture and process chemical substances and mixtures affecting health and the environment to collect data regarding those effects; (2) regulate chemical substances and mixtures which pose imminent hazards; and (3) assure that innovation and commerce in such chemical substances do not present unreasonable risk. (74) The primary chemical substances and the activities regarding those substances that are affected by the act are asbestos, lead-based paint, and radon. (75) In addition, regulations promulgated under the act stringently regulate polychlorinated biphenyls and many other toxic substances. (76)
TSCA does not contain a waiver of sovereign immunity with regard to enforcement or administrative fines or penalties. Both 15 U.S.C. [section] 2615 and 15 U.S.C. [section] 2616 discuss penalties and enforcement; however, both discuss penalties and enforcement against a "person." Because "person" is not defined in the statute, no case can be made that Congress "clearly and unambiguously" waived sovereign immunity with regard to the statute. (77) Consequently, federal facilities do not pay state fines for violations of the general TSCA statute; however, see the discussion below regarding the Residential Lead-Based Paint Hazard Reduction Act of 1992. (78)
4. Emergency Planning and Community Right-to-Know Act
The Emergency Planning and Community Right-to-Know Act (EPCRA), 42 U.S.C. [subsection] 11001-11050, was passed in 1986 to ensure adequate emergency planning at the local level for threats against releases of extremely hazardous substances. (79) Although EPCRA does not apply to federal facilities, (80) Executive Order 13148, Greening the Government Through Leadership in Environmental Management, mandates that federal facilities comply with certain EPCRA planning and reporting requirements. This includes the Toxic Release Inventory reporting requirements of EPCRA [section] 313 (81) and the emergency planning and reporting responsibilities of EPCRA [subsection] 301-312. (82) The Executive Order tasks EPA to consult the other federal agencies to monitor compliance. (83)
Given that EPCRA does not apply directly to federal facilities and contains no waiver of sovereign immunity provision, clearly federal facilities are not subject to any fines for noncompliance. (84) Even Executive Order 13148 states that it is not intended to create any right or benefit enforceable by law against the United States . (85)
5. Pollution Prevention Act
The Pollution Prevention Act (PPA) (86) was enacted by Congress in 1990 to further the national policy of reducing or preventing pollution at its source, safely recycling pollution that cannot be prevented, safely treating pollution that cannot be prevented or recycled, and disposing or releasing pollution in an environmentally safe manner only as a last resort. (87) Although the PPA does not apply to federal facilities, (88) Executive Order 13148 mandates that federal facilities comply with section 6607 of the PPA. (89) This section requires the submission of a toxic chemical source reduction and recycling report for each toxic chemical required to be reported in the annual toxic chemical release form (Form R) under EPCRA [section] 313. (90) The Executive Order tasks EPA to consult the other federal agencies to monitor compliance. (91)
Given that the PPA does not apply directly to federal facilities and contains no waiver of sovereign immunity provision, clearly federal facilities are not subject to any fines for noncompliance. (92) Again, Executive Order 13148 states that it is not intended to create any fight or benefit enforceable by law against the United States . (93)
B. Acts Subjecting Federal Facilities to State Fines
1. Resource Conservation and Recovery Act
RCRA (94) governs the management and disposal of hazardous waste. The permit program is primarily administered by the EPA, (95) but is usually delegated to states with approved programs. (96) When enacting RCRA, Congress declared it national policy to reduce or eliminate the generation of hazardous wastes as expeditiously as possible and to treat, store, or dispose of waste in such a manner that will minimize present and future threats to human health and the environment. (97)
The Court in Dep't of Energy v. Ohio (98) also addressed sovereign immunity under RCRA. In this case, the Supreme Court had to decide whether Congress waived sovereign immunity from liability for civil fines imposed by states for past violations of RCRA or the Clean Water Act. (99) As explained earlier, the Court drew a distinction between "coercive" and "punitive" fines. (100) It defined coercive fines as those imposed on federal facilities "to induce them to comply with injunctions or other judicial orders designed to modify behavior prospectively" (101) and punitive fines as those imposed to punish past violations of environmental laws. (102)
As with the CWA, the State of Ohio argued that RCRA's citizen-suit (103) and federal facilities sections (104) waive sovereign immunity for the fines in question. As with the CWA, the Supreme Court disagreed. The Court reasoned that, although suit may be brought against the United States , the civil-penalties section (105) only applies to "persons" and, at the time of the decision, RCRA did not include the United States in the definition of "person." (106) The Court also concluded that the federal facilities section did not waive sovereign immunity for punitive fines because the language of the statute only extended to coercive sanctions. (107)
Congress passed the FFCA of 1992 (l08) that effectively overruled Dep't of Energy v. Ohio as it pertains to RCRA. The FFCA of 1992 added the United States to the definition of "person" (109) and clearly waived sovereign immunity in the federal facilities section of the law. (110) Consequently, federal facilities can no longer rely on sovereign immunity as protection from state-imposed punitive fines for hazardous waste law violations. (111) Notably, however, the FFCA of 1992 did not address the Clean Water Act aspects of Dep't of Energy v. Ohio .
In addition to RCRA governing the management and disposal of solid and hazardous waste, Subchapter IX governs the regulation of underground storage tanks (USTs). (112) Like the hazardous waste permit program, the UST program is primarily administered by the EPA, (113) but may be delegated to states with approved programs. (114) Congress enacted the RCRA UST provisions in order to ensure improved release detection and prevention practices and to develop corrective action measures for UST leaks and spills necessary to protect human health and the environment. (115)
Until August 2005, the RCRA UST federal facilities provision (116) did not waive sovereign immunity as it applied to state-imposed punitive fines for UST violations. (117) In the Energy Policy Act of 2005, Congress expressly waived sovereign immunity as it applies to "all civil and administrative penalties and fines" for UST volitions "regardless of whether such penalties or fines are punitive or coercive in nature." (118) So, federal facilities are no longer immune from punitive fines for violation of state UST regulations. (119)
2. Safe Drinking Water Act
In 1974, Congress enacted the Safe Drinking Water Act (SDWA), 42 U.S.C. [subsection] 300f-300j-26, to ensure the development of a regulatory mechanism that protects the quality of publicly supplied drinking water. Under the SDWA, the EPA and the state environmental agencies share responsibility for administering the safe drinking water programs. As required by the SDWA, the EPA promulgated national primary drinking water regulations (NPDWR) designed to prevent contamination of public water systems. (120) These NPDWRs are the standards applicable to all public water systems in the nation and may be enforced by the EPA or a state. (121) A state can receive primary enforcement responsibilities for public water systems provided it can show EPA that its safe drinking water program is no less stringent than the NPDWRs and that the state has an effective enforcement mechanism. (122)
The SDWA also provides for protection of the purity of drinking water at its source. State Underground Injection Control programs are designed to prevent subsurface waste disposal to ensure contaminants do not reach drinking water sources. (123) The Sole Source Aquifer program is a federal grant program that reimburses states 50% of their cost in developing state programs to identify and preserve "critical aquifer protection areas." (124) The Wellhead Protection Area program is designed to protect surface and subsurface watershed areas that surround wells that are used to supply public water systems with drinking water. (125)
After the enactment of the SDWA Amendments of 1996, (126) no doubt exists about the waiver of sovereign immunity. (127) Congress used the language from the FFCA of 1992 (128) to modify the federal facilities section of the SDWA to clearly and unequivocally waive sovereign immunity for "all civil and administrative penalties and fines, regardless of whether such penalties or fines are punitive or coercive in nature or are imposed for isolated, intermittent, or continuing violations." (129) The state must use all funds collected from federal facilities for fines or penalties only for environmentally beneficial projects or to defray environmental protection of enforcement costs. (130) Clearly, federal facilities are subject to penalties imposed by states for SDWA violations.
3. Toxic Substances Control Act: Lead-Based Paint
In 1992, after the Supreme Court decided Dep't of Energy v. Ohio , Congress passed the Residential Lead-Based Paint Hazard Reduction Act of 1992. (131) This Act amended TSCA by adding to it the Lead-Based Paint Reduction Act (subchapter IV of TSCA). (132) Even though there is no blanket TSCA waiver, Congress in this amendment waived sovereign immunity with regard to lead-based paint and lead-based paint activities. (133) Not only does this waiver require the federal government to comply with all federal, state, interstate, and local substantive and procedural lead-based paint requirements, it expressly waives any immunity applicable to the United States with regard to these requirements. (134) All punitive civil and administrative fines and penalties are specifically included. (135) The waiver is clear and unambiguous and subjects federal facilities to punitive and coercive fines and penalties for violations of state regulations covering federal lead-based paint and lead-based paint activities. (136) TSCA lead-based paint requirements primarily affect the Air Force with regard to military family housing and military housing activities. (137)
C. Act Where State Fine Issue is Unsettled: Clean Air Act
The Clean Air Act (CAA) (138) is a comprehensive national program that makes the states and the federal government partners in the struggle against air pollution. (139) The purposes of the CCA are to protect the quality of the Nation's air resources, encourage advancements in air pollution control, provide resources to state and local governments for the execution of their air pollution control programs, and to aid in the control of regional air pollution. (140) In general, the primary goal of the CAA is air pollution prevention. (141)
Congress included a waiver of sovereign immunity in section 118(a) of the CAA. The question of whether [section] 118(a) of the CAA, waives the United States ' sovereign immunity from state-imposed civil penalties for violations of state air pollution control laws has been addressed by various courts. (142) Predictably, some courts have held that Congress did not waive sovereign immunity for state-imposed CAA fines, (143) while others decided to the contrary. (144) These conflicting judicial decisions have created uncertainty regarding the payment of state-imposed fines under the CAA. (145)
At the time this article was written, the Department of Justice (Do J) position continues to be that sovereign immunity is not waived for state-imposed CAA fines. (146) However, given the uncertainty of the issue, the Air Force has published the following guidance: (147)
--States in the Sixth Circuit: The Department of Defense (DoD) will continue to pay state penalties as a result of the holding in United States v. Tennessee Air Pollution Control Board, 185 F.3d 529 (6th Cir. 1999).
--States in the Ninth Circuit: DoJ agreed with the services' recommendation not to appeal California v. U.S. , No. 98AS00723 (Super. Ct. of Cal. , Sacramento Co., March 18, 2002). DoD may negotiate and settle other pending and future penalty assessments. States in the Eleventh Circuit: To preserve the United States ' litigation posture for the anticipated appeal of the Jacksonville case, DoD will not negotiate or pay any state CAA penalties. (148)
--States in all other circuits: Coordination will be obtained from DoJ on a case-by-case basis prior to entering into negotiation for the settlement of state CAA penalties.
--All states in all circuits: When settling a state CAA penalty case, the written agreement memorializing the settlement shall expressly state that the Air Force does not admit liability and must remain silent with regard to the issue of sovereign immunity. (149)
It is clear that changes in the law and policy regarding payment of state-imposed CAA fines are inevitable. (150)
IV. CONCLUSION
The law of sovereign immunity as it applies to federal facility compliance with environmental regulations has undergone significant changes over the past several decades. The law in this area will continue to change in the near future. Numerous court decisions and congressional reaction to those decisions have created uncertainty in where the law is headed and inconsistency in how various environmental statutes are enforced against agencies of the federal government. As noted, more changes are certainly in the making; however, one trend is clear--the trend toward more state authority. Every time Congress has acted to resolve a conflict, they have acted to enhance state authority over federal entities.
The environmental statutes can be divided into three categories with regard to sovereign immunity for state imposed fines: those subjecting federal facilities to state fines, those that do not, and those where the issue is unsettled. Federal facilities are subject to state fines for violations of RCRA, SWDA, and the TSCA's lead-based paint provisions. Federal facilities are not subject to punitive state fines under the CWA, CERCLA, EPCRA, and PPA. Lastly, the authority for states to fine federal facilities under the CAA is in active litigation. Whether a facility pays state CAA fines depends on the U.S. judicial circuit in which the facility is located. If the issue is resolved in a manner consistent with current trends, all federal facilities will eventually be subject to state CAA fines. This will happen either because court decisions in various jurisdictions will rule against the use of sovereign immunity in the area of CAA fines or because Congress will act to ensure federal facilities are subject to state CAA fines.
(1) Connecticut v. EPA, 696 F.2d 147, 151 (2d Cir. 1982). EPA retains parallel authority to enforce federal standards even though a program has been delegated to a state. However, for delegated programs, it is EPA policy to take enforcement action only when the state fails to take timely and appropriate action, the state requests EPA to take the lead or participate in a joint action, or other limited circumstances are present, as outlined in the Policy Framework for Implementing State/EPA enforcement Agreements (July 1993). EPA OFFICE OF ENFORCEMENT AND COMPLIANCE ASSURANCE, THE YELLOW BOOK: GUIDE TO ENVIRONMENTAL ENFORCEMENT AND COMPLIANCE AT FEDERAL FACILITIES V-18 (1999).
(2) "Though this was the intent of the Congress [to waive sovereign immunity] in passing the 1972 Federal Water Pollution Control Act Amendments, the Supreme Court, encouraged by Federal agencies, has misconstrued the original intent." S. Rep. No. 370, 95th Cong., 1st Sess. 67 (1977), reprinted in 1977 U.S.C.C.A.N. 4326, 4392. See Clean Air Act Amendments of 1977, Pub. L. No. 95-95, [section] 116, 91 Stat. 711 (1977); see also Clean Water Act Amendments of 1977, Pub. L. 217, [subsection] 60, 61(a), 91 Stat. 1597, 1598 (1977).
(3) All major environmental statutes contain waivers of sovereign immunity; however, the Supreme Court reads these waivers very narrowly. See Lane v. Pena, 518 U.S. 187, 192-93 (1996). For examples of where Congress waived sovereign immunity in other contexts, see The Tucker Act, 24 Stat. 505 (1887), as amended, 28 U.S.C. [subsection] 1346(a), (b), (d) (1964) and The Federal Torts Claim Act, 28 U.S.C. [subsection] 2671-80 (1988).
(5) ARNOLD W. REITZE, JR., AIR POLLUTION LAW [section] 20-3(a)(3) (1995).
(6) U.S. Dep't of Energy v. Ohio , 503 U.S. 607, 630 (1992) (White, J., dissenting). See Rebecca Heintz, Note: Federal Sovereign Immunity and Clean Water: A Supreme Misstep, 24 ENVTL. L. 263 (1994); see also Kyle Bettigole, Defending Against Defense: Civil Resistance, Necessity and the United States Military's Toxic Legacy, 21 B.C. ENVTL. AFF. L. REV. 667 (1994).
(7) The other goals are: (1) correction of violations to protect public health and welfare; (2) equitable treatment of polluters to prevent violators from gaining an economic advantage and to protect the basic enforcement mechanism of self-policing; (3) punishment; and (4) maximize enforcement by effective use of limited resources. REITZE, supra note 5, [section] 20-1 (1995).
(8) See Donald W. Stever, Perspectives on the Problem of Federal Facility Liability for Environmental Contamination, 17 ENVTL. L. REP. (ENVTL. L. INST.) 10, 114 (1987).
(9) See Margaret K. Minister, Federal Facilities and the Deterrence Failure of Environmental Laws: The Case for Criminal Prosecution of Federal Employees, 18 HARV. ENVTL. L. REV. 137 (1994); see also Stephen Herm, Criminal Enforcement of Environmental Laws on Federal Facilities, 59 GEO. WASH. L. REV. 938 (1991).
(l0) Whether the EPA is authorized to fine other federal agencies for environmental violations is not a sovereign immunity issue and is therefore beyond the scope of the article. However, various footnotes will address the issue.
(11) B-219532, supra note 4.
(12) Id. It should also be noted that federal agencies are prohibited from paying interest unless there is specific language in the waiver of sovereign immunity that specifically allows payment of interest. Library of Congress v. Shaw, 478 U.S. 310 (1986).
(13) 31 U.S.C [section] 1341 (Lexis 2006).
(14) Id. [section] 1341 (a)(1)(B).
(15) Id. [section] 1349. An officer or employee of the U.S. Government or of the District of Columbia government violating section 1341(a) or 1342 of the ADA is subject to appropriate administrative discipline including, when circumstances warrant, suspension from duty without pay or removal from office.
(16) Id. [section] 1350. An officer or employee of the U.S. Government or of the District of Columbia government knowingly and willfully violating section 1341(a) or 1342 of the ADA can be fined not more than $5,000, imprisoned for not more than 2 years, or both. See also Office of Personnel Management v. Richmond , 496 U.S. 414 (1990).
(17) United States v. Sherwood, 312 U.S. 584, 586 (1941).
(18) Id. at 586; United States v. Shaw, 309 U.S. 495, 500 (1940).
(19) See Hancock v. Train, 426 U.S. 167 (1976); EPA v. California , 426 U.S. 200, 211 (1976) ("Federal installations are subject to state regulation only when and to the extent that congressional authorization is clear and unambiguous.").
(20) See United States v. Lee, 106 U.S. 196, 205-209 (1882); Edwin M. Borchard, Government Liability in Tort, 34 YALE L.J. l, 4 (1924); William R. Hartl, Sovereign Immunity: An Outdated Doctrine Faces Demise in a Changing Judicial Arena, N. DAK. L. REV. 401 (1993); R. Matthew Molash, If You Can't Save Us, Save Our Families: The Feres Doctrine and Servicemen's Kin, 1983 U. ILL. L. REV. 317 (1983).
(21) See Owen v. City of Independence, 445 U.S. 622 (1980) ("Although it has never been understood how the doctrine of sovereign immunity came to be adopted in the American democracy, it apparently stems from the personal immunity of the English Monarch as expressed in the maxim, 'The King can do no wrong.' It has been suggested, however, that the meaning traditionally ascribed to this phrase is an ironic perversion of its original intent: 'The maxim merely meant that the King was not privileged to do wrong. If his acts were against the law, they were injuriae (wrongs). Bracton, while ambiguous in his several statements as to the relation between the King and the law, did not intend to convey the idea that he was incapable of committing a legal wrong.'"); Langford v. United States, 101 U.S. 341,343 (1879) ("It is to be observed that the English maxim does not declare that the government, or those who administer it, can do no wrong; for it is a part of the principle itself that wrong may be done by the governing power, for which the ministry, for the time being, is held responsible; and the ministers personally, like our President, may be impeached; or, if the wrong amounts to a crime, they may be indicted and tried at law for the offence. We do not understand that either in reference to the government of the United States , or of the several States, or of any of their officers, the English maxim has an existence in this country."); Borchard, supra note 20, at 4; Louis L. Jaffe, Suits Against Governments and Officers: Sovereign Immunity, 77 HARV. L. REV. 1 (1967); Heintz, supra note 6.
(22) Susan Randall, Sovereign Immunity and the Uses of History, 81 NEB. L. REV. 1 (2002) (arguing that the concept of sovereign immunity has no basis in acceptance and adoption by this country in its founding as we were trying to escape such ideas of sovereign control as "the king could do no wrong," and arguing that the Constitution likely subjects the federal government to the power of the federal courts in Article III).
(23) See Nevada v. Hall, 440 U.S. 410, 415 (1978); Nestor M. Davidson, Constitutional Mass Torts: Sovereign Immunity and the Human Radiation Experiments, 96 COLUM. L. REV. 1203 (1996); see also Justice Brennan's dissenting opinion in Edelman v. Jordan, 415 U.S. 651, 687 (1974) (refering to the "nonconstitutional but ancient doctrine of sovereign immunity"); Heintz, supra note 6.
(24) For a discussion of the contemporary bases for the common law doctrine in this country, see Harold J. Krent, Reconceptualizing Sovereign Immunity, 45 VAND. L. REV. 1529 (1992) (discussing that sovereign immunity protects our common resources by forcing individuals to bear their own losses suffered at the hands of government and that sovereign immunity is justified, if at all, as a means of protecting the freedom of action of the elected branches from judicial incursions).
(25) Cohens v. Virginia, 19 U.S. (6 Wheat.) 264 (1821).
(26) United States v. McLemore, 45 U.S. (4 How.) 286 (1846).
(27) Id. at...
From the preamble to Supreme Court Rule 4 "The legal profession's relative autonomy carries with it special responsibilities of self government. The profession has a responsibility to assure that its regulations are conceived in the public interest and not in furtherance of parochial or self-interested concerns of the bar."
Salmon stronghold bills (HR 2055 and S 817 ): Although Pacific salmon conservation bills have won biparitisan support in both chambers and from the Obama Administration, there may not be time to finish work on them before the 111 th Congress draws to a close. The programs proposed under the current bills differ from current conservation efforts, in that they call for investment in the healthiest—rather than the most endangered—salmon spawning runs. This “salmon stronghold” approach was well received in an April 15 Senate Commerce Committee hearing, as it was by the House Natural Resources Committee last June, but has not been scheduled for markup by either panel.
JUDGE SPRAGUE ON THE LAWS AGAINST PIRACY.Published: May 19, 1861 - The New York Times At the opening of the United States Circuit Court in Boston on May 16, Judge SPRAGUE delivered a charge to the Grand Jury, in which he defined the state of our laws with reference to the crime of piracy. After citing provisions from the laws of 1790, 1820, 1825, 1846 and 1847, as to what constitutes the general crime, with the different degrees of penalty, the Judge remarks that these enactments were founded upon the clause in the Constitution which gives Congress the power to define and punish piracy. But the constitutional power to regulate commerce also affords a basis for additional penal enactments, covering all possible aggressions and depredations upon our commerce. The Judge then lays down the following important principles, the bearing of which will be sufficiently evident in the present crisis: "These statutes being enacted pursuant to the Constitution are of paramount authority, and cannot be invalidated or impaired by the action of any State or States, and every law, ordinance and constitution made by them for that purpose, whatever its name or form, is wholly nugatory and can afford no legal protection to those who may act under it. But suppose that a number of States undertake by resolution to throw off the Government of the United States and erect themselves into an independent nation, and assume in that character to issue commissions authorizing the capture of vessels of the United States, will such commissions afford protection to those acting under them against the penal laws of the United States? Cases have heretofore arisen where a portion of a foreign empire -- a colony -- has undertaken to throw off the dominion of the mother country, and assumed the attitude and claimed the rights of an independent nation, and in such cases it has been held that the relation which the United States should hold to those who thus attempt and claim to institute a new Government, is a political rather than a legal question; that, if those departments of our Government which have a right to give the law, and which regulate our foreign intercourse and determine the relation in which we shall stand to other nations, recognize such new and self-constituted Government as having the rights of a belligerent in a war between them and their former rulers, and the United States hold a neutral position in such war, then the judiciary, following the other departments, will to the same extent recognize the new nation. But if the legislative and executive, departments of the Government utterly refuse to recognize such new Government, or to acknowledge it as having any belligerent or national rights, and instead of taking a neutrel attitude endeavor by force to suppress depredations on commerce by such assumed Government, as violating the rights and infringing the laws of the United States, then the judiciary will hold that such depredations are not to be considered as belligerent and entitled to the immunities of lawful war, but as robbery or other lawless depredations, subject to the penalties denounced by our laws against such offences. The judiciary certainly cannot accept a more indulgent rule towards these who are in open rebellion against the authority if the United States, or toward aliens cooperating with and acting under the assumed authority of such rebels. While the other departments of the Government and the nation refuse to regard any State or association of States as having the rights of a belligerent, or as carrying on legitimate war, and are exerting not only moral but physical force against them as rebels and lawless aggressors upon the United States and its citizens, the Courts also must so regard them, and cannot admit that any legislation or assumption of power by such State or States can authorize acts in violation of the laws of the United States, or change the character of offences under them. There is another view. Mere rebellion absolves no man from his allegiance. Citizens of the United States, therefore, may not only be subject to the penalties of treason, but if they commit hostilities upon the commerce of the United States, under a commission from any foreign nation, even the oldest and best established, such as England or France for example, they may be dealt with as pirates by the express enactments in the ninth section of the statute of 1790, which has already been referred to. And aliens, who are subjects or citizens of any foreign State with whom we have a treaty, such as is described in the statute of 1847, chapter 51, which has already been quoted; if, in violation of such treaty, they make war upon the United States, or cruise against our vessels or property, under a commission from any foreign government, however long acknowledged, may, by the clear provisions of that statute, be dealt with as pirates. If aliens, subjects of a nation with whom we have no such treaty, commit acts of hostility upon our commerce, under the alleged authority or commission of a new and self-created government claiming to be independent, it may be material to inquire whether such government is to be regarded as having the immunities of a belligerent, or whether such aliens may be treated as robbers on the seas; and this inquiry will be governed by the principles which I have already stated. -CITE- 18 USC CHAPTER 115 - TREASON, SEDITION, AND SUBVERSIVE ACTIVITIES 01/05/2009 -
An interlocutory appeal (or interim appeal ), in the law of civil procedure , is an appeal of a ruling by a trial court that is made before the trial itself has concluded. Most jurisdictions generally prohibit such appeals, requiring parties to wait until the trial has concluded before they challenge any of the decisions made by the judge during that trial. However, many jurisdictions make an exception for decisions that are particularly prejudicial to the rights of one of the parties. For example, if a party is asserting some form of immunity from suit, or is claiming that the court completely lacks personal jurisdiction over them, then it is recognized that being forced to wait for the conclusion of the trial would violate their right not to be subjected to a trial at all.
The examples and perspective in this article deal primarily with the United States and do not represent a worldwide view of the subject . Please improve this article and discuss the issue on the talk page . (December 2010)
the outcome of the case would be conclusively determined by the issue;
the matter appealed was collateral to the merits ; and
the matter was effectively unreviewable if immediate appeal were not allowed.
The Supreme Court created the test in the case Cohen v. Beneficial Industrial Loan Corp. , 337 U.S. 541 (1949), where it was applied to a requirement of bond to be posted in certain stockholders derivative actions by plaintiffs, in anticipation of being liable for defendant's attorney's fees. Since the substantial deterrent effect of the statute would be meaningless if not enforceable at the outset of litigation, but did not touch on the merits of plaintiff's claim, the Court allowed interlocutory appeal from the trial court's decision. 337 U.S. at 546-47. The doctrine was restricted in Digital Equipment Corp. v. Desktop Direct Inc. , 511 U.S. 863 (1994) , which added an explicit importance criterion to the test for interlocutory appeals, holding that relief on a claim of immunity from suit because of a previous settlement agreement could not come through interlocutory appeal. The Supreme Court stated that the only matters of sufficient importance to merit a collateral appeal were "those originating in the Constitution or statutes". 511 U.S. at 879.
Several U.S. statutes directly confer the right to interlocutory appeals, including appeals from orders denying arbitration , 9 U.S.C. § 16 , and some judicial actions against the debtor upon filing bankruptcy proceedings , 11 U.S.C. § 362 (a). There is a major split in the United States courts of appeals as to whether a stay of proceedings should issue in the district court while interlocutory appeals on the arbitrability of disputes are decided. Compare Bradford-Scott Data Corp., Inc. v. Physician Computer Network , 128 F.3d 504 (7th Cir. 1997), and Britton v. Co-op Banking Group , 916 F.2d 1405 (9th Cir. 1990). An interlocutory appeal under the collateral order doctrine usually merits a stay of proceedings while the appeal is being decided. Currently, the Second and Ninth Circuits have refused to stay proceedings in the district court while an arbitration issue is pending [See, Motorola Credit Corp. v. Uzan, 388, F.3d 39, 53-4 (2d Cir. 2004; Britton v. Co-Op Banking Group, 916 F.2d 1405, 1412 (9th Cir. 1990)]. The Seventh, Tenth and Eleventh Circuit courts conversely hold that a non-frivolous appeal warrants a stay of proceedings. See, Bradford-Scott Data Corp. v. Physician Computer Network, Inc., 128 F.3d, 504, 506 (7th Cir. 1997); Blinco v. Green Tree Servicing, LLC, 366 F.3d 1249, 1251-2 (11th Cir. 2004); McCauley et al. v. Halliburton Energy Services, Inc., 161 Fed. Appx. 760 (10th Cir. 2005).
An interlocutory appeal asks an appellate court to decide an issue which cannot be resolved on the facts in the case, but whose resolution is essential to a final decision in the case.
On September 26, 1989, the Arizona Supreme Court adopted a Special Procedural Order Providing for Interlocutory Appeals and Certifications . The purpose of the order was to establish a procedure for early review of substantial questions in the Gila River Adjudication. Any party could petition the Arizona Supreme Court to review by interlocutory appeal any ruling of the Superior Court, and the Superior Court could certify to the Supreme Court questions deemed substantial for review.
In February 1990, several parties in the Gila River Adjudication appealed various rulings of the Maricopa County Superior Court. On June 27, 1990, the Arizona Supreme Court consolidated the petitions for interlocutory review. On December 11, 1990 , the Court granted review on six issues. Each issue was argued and decided separately. The issues and their determinations are:
Do the procedures for filing and service of pleadings adopted by the trial court in its Pretrial Order Number 1 comport with due process under the United States and Arizona Constitutions?
Did the trial court err in adopting its 50%/90 day test for determining whether underground water is "appropriable" under Arizona Revised Statutes § 45-141?
In re the General Adjudication of All Rights to Use Water in the Gila River System and Source (September 22, 2000) - after the Superior Court held an evidentiary hearing and issued new criteria for determining subflow, court held that the subflow zone is defined as the saturated floodplain Holocene alluvium; all wells located within the lateral limits of the subflow zone, as determined by the Arizona Department of Water Resources (ADWR) are subject to the adjudication; all wells located outside the subflow zone that are pumping water from a stream or its subflow (as determined by ADWR's analysis of the well's cone of depression), are included in the adjudication; and, wells that, though pumping subflow, have a de minimis effect on the river system may be excluded from the adjudication based on rational guidelines for such an exclusion, as proposed by ADWR and adopted by the Superior Court. The opinion is reported in 198 Ariz. 330, 9 P.3d 1069 (2000), cert. denied sub nom. Phelps Dodge Corp. v. U.S., 533 U.S. 941 (2001) (reviewed in August-December 2000 and January-May 2001 Bulletin). On June 25, 2001, the U.S. Supreme Court denied a petition filed by Phelps Dodge Corporation and Arizona Public Service for a writ of certiorari (reviewed in June-August 2001 Bulletin).
What is the appropriate standard to be applied in determining the amount of water reserved for federal lands?
In re the General Adjudication of All Rights to Use Water in the Gila River System and Source (November 26, 2001) - court held that the purpose of a federal Indian reservation is to serve as a "permanent home and abiding place" to the people living there; the primary-secondary purpose test for quantifying a federal reserved right does not apply to Indian reservations; the practicably irrigable acreage standard is not the exclusive measure to quantify water rights on Indian lands; and, quantifying an Indian reserved right is a fact-intensive, reservation-specific inquiry that must address numerous factors, such as a tribe's master land use plans, history, culture, geography, topography, natural resources, economic base, past water use, present and projected future population, and any others deemed relevant, but proposed uses must be reasonably feasible, and the amount of water adjudicated must be tailored to the reservation's minimal need. The opinion is reported in 201 Ariz. 307, 35 P.3d 68 (2001) (reviewed in September-December 2001 Bulletin).
Is non-appropriable groundwater subject to federal reserved rights?
Do federal reserved rights holders enjoy greater protection from groundwater pumping than holders of state law rights?
In re the General Adjudication of All Rights to Use Water in the Gila River System and Source (November 19, 1999) - court held that holders of federal reserved water rights enjoy greater protection from groundwater pumping than do holders of state law rights to the extent that greater protection may be necessary to maintain sufficient water to accomplish the purpose of a reservation. The opinion is reported in 195 Ariz. 411, 989 P.2d 739 (1999), cert. denied sub nom. Phelps Dodge Corp. v. U.S. and Salt River Valley Water Users' Assn. v. U.S., 530 U.S. 1250 (2000) (reviewed in September-December 1999 , January-March 2000 , and April-July 2000 Bulletin).
Must claims of conflicting water use or interference with water rights be resolved as part of the general adjudication?
On April 2, 2002, the Arizona Supreme Court vacated its order granting this appeal and vacated the portion of the Superior Court's order entered on August 1, 1989, relating to the appeal (reviewed in January-April 2002 Bulletin).
Interlocutory Appeals WC-02-0001-IR (United States)
WC-02-0002-IR (Gila River Indian Community)
WC-02-0003-IR (San Carlos Apache Tribe)
(Contested Cases Nos. W1-203 and W1-206)
The United States, Gila River Indian Community, and the San Carlos Apache Tribe petitioned for interlocutory review of portions of two rulings of the Superior Court related to the Globe Equity Decree of the Federal District Court of Arizona. Phelps Dodge Corporation and Salt River Project filed cross-petitions. On February 9, 2006, the Arizona Supreme Court affirmed and remanded the Superior Court's order. On May 3, 2006, the Court denied reconsideration. The opinion is reported in In re the General Adjudication of All Rights to Use Water in the Gila River System and Source, 212 Ariz. 64, 127 P.3d 882 (2006), rec'n denied, 212 Ariz. 470, 134 P.3d 375 (2006), cert. denied sub nom. San Carlos Apache Tribe v. Arizona and Phelps Dodge Corp. v. San Carlos Apache Tribe, 127 S.Ct. 928 (2007). The opinion concerned appeal WC-02-0003-IR. On July 13, 2010, the Court granted the motions of the United States and the Gila River Indian Community to voluntarily dismiss appeals WC-02-0001-IR and WC-02-0002-IR. The Salt River Project moved to voluntarily dismiss its cross-petition for interlocutory review. July 13, 2010 August 22, 2005 July 25, 2005 April 20, 2005 February 23, 2005 November 29, 2004 November 29, 2004 July 7, 2004
Interlocutory Appeal WC-05-0001-IR (Contested Case No. W1-103)
This appeal arose from several petitions seeking review of the Superior Court's order dated September 28, 2005 , concerning the Subflow Technical Report, San Pedro River Watershed, of the Arizona Department of Water Resources. On May 22, 2007 , without an opinion the Arizona Supreme Court denied all the petitions. Chief Judge A. John Pelander of the Arizona Court of Appeals, Division Two, participated by designation in place of Justice W. Scott Bales.
Interlocutory Appeals WC-07-0001-IR (Apache Tribes and Lower Gila Water Users)
WC-07-0003-IR (ASARCO LLC)
(Contested Case No. W1-207)
Three petitions sought review of the Superior Court's orders approving the Gila River Indian Community water rights settlement. On February 19, 2010, the Arizona Supreme Court affirmed the judgment and decree of the Superior Court. The Court held that the Superior Court complied with the Supreme Court's Special Order for approving Indian water rights settlements. The opinion is reported in In re the General Adjudication of All Rights to Use Water in the Gila River System and Source, 223 Ariz. 362, 224 P.3d 178 (2010).
Interlocutory Appeal WC-07-0002-IR (Contested Case No. W1-208)
The City of Tucson and Farmers Investment Company sought interlocutory review and approval of the Superior Court's judgment and decree entered on July 9, 2007 . Other parties were allowed to intervene. On November 30, 2007, the Arizona Supreme Court affirmed the judgment and decree of the Superior Court. The opinion is reported in In re the General Adjudication of All Rights to Use Water in the Gila River System and Source, 217 Ariz. 276, 173 P.3d 440 (2007).
Doctrine allowing appeals from interlocutory rulings (i.e., preceding final judgment) so long as those rulings conclusively decide an issue separate from the merits of the case and would be effectively unreviewable after final judgment.
Overview
The collateral order doctrine is a narrow exception to the final-judgment rule, which normally forces parties to wait for final judgment before appealing any rulings. This doctrine emerged in Cohen v. Beneficial Industrial Loan Corp. , 337 U.S. 541 (1949). In that case the Supreme Court held to be appealable those orders which "finally determine claims of right separable from, and collateral to, rights asserted in the action, too important to be denied review and too independent of the cause itself to require that appellate consideration be deferred until the whole case is adjudicated." Id. , 337 U.S. at 546.
A New York state judge has held Maurice "Hank" Greenberg, the former head of American International Group Inc., liable for "spearhead[ing]" a fraudulent transaction to remove $200 million in losses from the giant insurer's books. Manhattan Supreme Court Justice Charles E. Ramos' ruling handed a victory to Attorney General Andrew Cuomo, who is pressing the suit against Greenberg and AIG's former chief financial officer, Howard Smith, to recover investor losses stemming from two allegedly sham transaction designed to hide the company's true financial condition.
Ramos's 83-page ruling in People v. Greenberg , 401720/05, granted the attorney general summary judgment on his claim that the two former AIG officials had fraudulently moved $200 million in losses off AIG's books to a Barbados-based corporation, the CAPCO Reinsurance Company. But the ruling denied the attorney general's motion for summary judgment on a second transaction involving a claim that the two defendants had ginned up its reserves by $500 million through a sham transaction with General Re Corp., a unit of Berkshire Hathaway Inc. The General Re transaction resulted in seven convictions , two of them by guilty pleas, of former AIG and General Re officials.
In granting summary judgment on the CAPCO deal, Ramos found the evidence "established that the defendants' stated objective in effectuating the … transaction was not to improve AIG's assets, but to conceal from investors underwriting losses." The judge will hold a separate hearing to determine the amount of damages stemming from the deal.
Ramos also denied motions from both Greenberg and Smith seeking summary judgment dismissing the case. Lawyers for both men were quoted by Reuters as saying that they would appeal the ruling holding their clients liable for the CAPCO deal.
ENVIRONMENTAL JUSTICE "Title VI of the Civil Rights Act of 1964 " "U.S. Environmental Protection Agency Title VI Regulations " "Executive Order 12,898, Environmental Justice" THE REGULATORY PROCESS "Administrative Procedure Act; Regulatory Flexibility Act " "Information Quality Act and OMB Guidelines " "Congressional Review Act " "Regulatory Planning and Review, Executive Order 12,866" REGULATION OF TOXIC SUBSTANCES "Toxic Substances Control Act " "Federal Insecticide, Fungicide, and Rodenticide Act " "Safe Drinking Water Act " "Emergency Planning and Community Right-to-Know Act " "Safe Drinking Water and Toxic Enforcement Act (Proposition 65)" WASTE MANAGEMENT AND POLLUTION PREVENTION "Solid Waste Disposal Act (as Amended by the Resource Conservation and Recovery Act) " "Comprehensive Environmental Response, Compensation, and Liability Act " "Pollution Prevention Act" AIR POLLUTION CONTROL "Clean Air Act" WATER POLLUTION CONTROL "Federal Water Pollution Control Act (Clean Water Act) " "Oil Pollution Act" LAND USE REGULATION "Coastal Zone Management Act" ENVIRONMENTAL ASSESSMENT "National Environmental Policy Act " "NEPA Regulations" BIODIVERSITY PROTECTION "Endangered Species Act" PUBLIC LAND MANAGEMENT "Antiquities Act; Multiple Use Sustained Yield Act " "Forest and Rangeland Renewable Resources Planning Act " "Federal Land Policy and Management Act" CASE SUPPLEMENT "Burlington Northern & Santa Fe Railway Co. v. United States " "United States v. Atlantic Research Corp. " "United Haulers Assn., Inc. v. Oneida-Herkimer Solid Waste Management Authority " "Environmental Defense v. Duke Energy Corp. " "Massachusetts v. EPA " "Rapanos v. United States " "S.D. Warren Co. v. Maine Board of Environmental Protection " "Entergy Corp. v. Riverkeeper, Inc. " "Exxon Shipping Co. v. Baker " "Coeur Alaska, Inc. v. Southeast Alaska Conservation Council " "Winter v. Natural Resources Defense Council " "National Assn. of Homebuilders v. Defenders of Wildlife " "Summers v. Earth Island Institute"
E. Upon the Date of Final Approval of this Consent Decree, Atkemix
6 Thirty-Seven Inc. ("Atkemix Thirty-Seven") hereby grants to the United States, through the
7 United States Bureau of Land Management ("BLM"), an option (the "Option") to acquire
8 Atkemix Thirty-Seven's interest in certain parcels of land located in the area of Iron Mountain
9 under the authority and provisions of Section 107(f)(l) of CERCLA, 42 U.S.C.
10 Section 9607(f)(l), and Section 205 of the Federal Land Policy and Management Act,
11 43 U.S.C. Section 1715, and 43 C.F.R. Part 11. The parcels subject to the Option (the
12 "Land") encompass approximately 1,250 acres of land. The Land is generally depicted as the
13 shaded areas on the map attached to this Consent Decree as Appendix L; however, the parcel
14 boundaries and other notations appearing on Appendix L are not meant to constitute
15 controlling legal descriptions. The terms of the Option, and of the United States' exercise
16 thereof, are as follows:
17 (1) Transfer from Atkemix Thirty-Seven to the United States of
18 Atkemix Thirty-Seven's interest the Land, in its entirety or any parcel therein, shall be in
19 consideration of agreements contained in this Consent Decree and shall not require any further
20 consideration. Restoration efforts undertaken on any Land the United States acquires under
21 this Paragraph will be developed by the Natural Resource Trustees in accordance with Section
22 XXXIII of this Consent Decree and funded from allocations made pursuant to Paragraphs
23 6.A.(l)(a) and 7.D of this Consent Decree.
24 (2) The term of the Option (the "Option Term") shall be a period of
25 ; 24 months from the Date of Final Approval of this Consent Decree. The United States may
26 exercise its right to acquire Atkemix Thirty-Seven's interest in the Land or any parcel therein
9. Compliance With Applicable Law. The Site Operator shall comply with all
applicable federal and state laws as provided in the SOW. The activities conducted pursuant to
this Consent Decree, if approved by the Oversight Agency, shall be considered to be
consistent with the NCP.
Guidelines and Specifications for Flood Hazard Mapping Partners
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
consuming.
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.
EPA is often directed to provide funding to a specific entity for water infrastructure projects. These are not part of an established program and are limited to the special situations defined in EPA's annual Appropriations Act.
EPA does not, however, advocate or nominate entities for drinking water, wastewater, stormwater or other water infrastructure projects for directed funding. If, however, you are a community or other entity which has been identified in one of EPA's Appropriation Acts to receive funding for an eligible water infrastructure projects, the information which follows will be of interest to you if:
you are responsible for getting the funding for the project, or
you will be responsible for overseeing the project to completion.
The following information explains how you apply for the funding, get paid, and what your responsibilities are after you have received the funding. It contains links for getting the forms which must be completed. The forms can be completed on screen and printed for mailing. All information can be read on screen or downloaded.
Each year EPA publishes guidelines for the award of Special Appropriation projects, which must be followed to award these grants. EPA may not award funds until the guidelines are published. So, if you received funds in the Fiscal Year (FY) 2010 Appropriation which runs from 10-1-2009 to 9/30/2010 usually EPA Headquarters would have published the guidelines by May 31, 2010. Below are links to past years guidelines.
EPA is required to comply with the National Environmental Policy Act and a series of cross cutting laws and regulations prior to awarding funds in most cases. This will require you to complete the suggested outline for the environmental information document (EID) and the EID checklist and provide it to your EPA Project Officer. Once received and accepted by EPA, we need to consult with numerous agencies and then publish our tenative decision. We then invite public comments and consider all comments received.
Your EPA Project Officer will work with you to develop an acceptable work plan which contains measureable environmental results and whenever feasable incorporate recommended environmental best practices.
APPEAL FROM A JUDGMENT OR ORDER OF A DISTRICT COURT
Rule 3. Appeal as of Right—When Taken
(a) Filing the Notice of Appeal.
(1) An appeal permitted by law as of right from a district court to a court of appeals may be taken only by filing a notice of appeal with the district clerk within the time allowed by Rule 4. At the time of filing, the appellant must furnish the clerk with enough copies of the notice to enable the clerk to comply with Rule 3(d).
(2) An appellant's failure to take any step other than the timely filing of a notice of appeal does not affect the validity of the appeal, but is ground only for the court of appeals to act as it considers appropriate, including dismissing the appeal.
(3) An appeal from a judgment by a magistrate judge in a civil case is taken in the same way as an appeal from any other district court judgment.
(4) An appeal by permission under 28 U.S.C. § 1292(b) or an appeal in a bankruptcy case may be taken only in the manner prescribed by Rules 5 and 6, respectively.
(b) Joint or Consolidated Appeals.
(1) When two or more parties are entitled to appeal from a district-court judgment or order, and their interests make joinder practicable, they may file a joint notice of appeal. They may then proceed on appeal as a single appellant.
(2) When the parties have filed separate timely notices of appeal, the appeals may be joined or consolidated by the court of appeals.
(c) Contents of the Notice of Appeal.
(1) The notice of appeal must:
(A) specify the party or parties taking the appeal by naming each one in the caption or body of the notice, but an attorney representing more than one party may describe those parties with such terms as “all plaintiffs,” “the defendants,” “the plaintiffs A, B, et al.,” or “all defendants except X”;
(B) designate the judgment, order, or part thereof being appealed; and
(C) name the court to which the appeal is taken.
(2) A pro se notice of appeal is considered filed on behalf of the signer and the signer's spouse and minor children (if they are parties), unless the notice clearly indicates otherwise.
(3) In a class action, whether or not the class has been certified, the notice of appeal is sufficient if it names one person qualified to bring the appeal as representative of the class.
(4) An appeal must not be dismissed for informality of form or title of the notice of appeal, or for failure to name a party whose intent to appeal is otherwise clear from the notice.
(5) Form 1 in the Appendix of Forms is a suggested form of a notice of appeal.
(d) Serving the Notice of Appeal.
(1) The district clerk must serve notice of the filing of a notice of appeal by mailing a copy to each party's counsel of record—excluding the appellant's—or, if a party is proceeding pro se, to the party's last known address. When a defendant in a criminal case appeals, the clerk must also serve a copy of the notice of appeal on the defendant, either by personal service or by mail addressed to the defendant. The clerk must promptly send a copy of the notice of appeal and of the docket entries—and any later docket entries—to the clerk of the court of appeals named in the notice. The district clerk must note, on each copy, the date when the notice of appeal was filed.
(2) If an inmate confined in an institution files a notice of appeal in the manner provided by Rule 4(c), the district clerk must also note the date when the clerk docketed the notice.
(3) The district clerk's failure to serve notice does not affect the validity of the appeal. The clerk must note on the docket the names of the parties to whom the clerk mails copies, with the date of mailing. Service is sufficient despite the death of a party or the party's counsel.
(e) Payment of Fees.
Upon filing a notice of appeal, the appellant must pay the district clerk all required fees. The district clerk receives the appellate docket fee on behalf of the court of appeals.
(A) In a civil case, except as provided in Rules 4(a)(1)(B), 4(a)(4), and 4(c), the notice of appeal required by Rule 3 must be filed with the district clerk within 30 days after the judgment or order appealed from is entered.
(B) When the United States or its officer or agency is a party, the notice of appeal may be filed by any party within 60 days after the judgment or order appealed from is entered.
(C) An appeal from an order granting or denying an application for a writ of error coram nobis is an appeal in a civil case for purposes of Rule 4(a).
(2) Filing Before Entry of Judgment.
A notice of appeal filed after the court announces a decision or order—but before the entry of the judgment or order—is treated as filed on the date of and after the entry.
(3) Multiple Appeals.
If one party timely files a notice of appeal, any other party may file a notice of appeal within 14 days after the date when the first notice was filed, or within the time otherwise prescribed by this Rule 4(a), whichever period ends later.
(4) Effect of a Motion on a Notice of Appeal.
(A) If a party timely files in the district court any of the following motions under the Federal Rules of Civil Procedure, the time to file an appeal runs for all parties from the entry of the order disposing of the last such remaining motion:
(i) for judgment under Rule 50(b);
(ii) to amend or make additional factual findings under Rule 52(b), whether or not granting the motion would alter the judgment;
(iii) for attorney's fees under Rule 54 if the district court extends the time to appeal under Rule 58;
(iv) to alter or amend the judgment under Rule 59;
(v) for a new trial under Rule 59; or
(vi) for relief under Rule 60 if the motion is filed no later than 28 days after the judgment is entered.
(B)
(i) If a party files a notice of appeal after the court announces or enters a judgment—but before it disposes of any motion listed in Rule 4(a)(4)(A)—the notice becomes effective to appeal a judgment or order, in whole or in part, when the order disposing of the last such remaining motion is entered.
(ii) A party intending to challenge an order disposing of any motion listed in Rule 4(a)(4)(A), or a judgment's alteration or amendment upon such a motion, must file a notice of appeal, or an amended notice of appeal—in compliance with Rule 3(c)—within the time prescribed by this Rule measured from the entry of the order disposing of the last such remaining motion.
(iii) No additional fee is required to file an amended notice.
(5) Motion for Extension of Time.
(A) The district court may extend the time to file a notice of appeal if:
(i) a party so moves no later than 30 days after the time prescribed by this Rule 4(a) expires; and
(ii) regardless of whether its motion is filed before or during the 30 days after the time prescribed by this Rule 4(a) expires, that party shows excusable neglect or good cause.
(B) A motion filed before the expiration of the time prescribed in Rule 4(a)(1) or (3) may be ex parte unless the court requires otherwise. If the motion is filed after the expiration of the prescribed time, notice must be given to the other parties in accordance with local rules.
(C) No extension under this Rule 4(a)(5) may exceed 30 days after the prescribed time or 14 days after the date when the order granting the motion is entered, whichever is later.
(6) Reopening the Time to File an Appeal.
The district court may reopen the time to file an appeal for a period of 14 days after the date when its order to reopen is entered, but only if all the following conditions are satisfied:
(A) the court finds that the moving party did not receive notice under Federal Rule of Civil Procedure 77(d) of the entry of the judgment or order sought to be appealed within 21 days after entry;
(B) the motion is filed within 180 days after the judgment or order is entered or within 14 days after the moving party receives notice under Federal Rule of Civil Procedure 77(d) of the entry, whichever is earlier; and
(C) the court finds that no party would be prejudiced.
(7) Entry Defined.
(A) A judgment or order is entered for purposes of this Rule 4(a):
(i) if Federal Rule of Civil Procedure 58(a) does not require a separate document, when the judgment or order is entered in the civil docket under Federal Rule of Civil Procedure 79(a); or
(ii) if Federal Rule of Civil Procedure 58(a) requires a separate document, when the judgment or order is entered in the civil docket under Federal Rule of Civil Procedure 79(a) and when the earlier of these events occurs:
the judgment or order is set forth on a separate document, or
150 days have run from entry of the judgment or order in the civil docket under Federal Rule of Civil Procedure 79(a).
(B) A failure to set forth a judgment or order on a separate document when required by Federal Rule of Civil Procedure 58(a) does not affect the validity of an appeal from that judgment or order.
(b) Appeal in a Criminal Case.
(1) Time for Filing a Notice of Appeal.
(A) In a criminal case, a defendant's notice of appeal must be filed in the district court within 14 days after the later of:
(i) the entry of either the judgment or the order being appealed; or
(ii) the filing of the government's notice of appeal.
(B) When the government is entitled to appeal, its notice of appeal must be filed in the district court within 30 days after the later of:
(i) the entry of the judgment or order being appealed; or
(ii) the filing of a notice of appeal by any defendant.
(2) Filing Before Entry of Judgment.
A notice of appeal filed after the court announces a decision, sentence, or order—but before the entry of the judgment or order—is treated as filed on the date of and after the entry.
(3) Effect of a Motion on a Notice of Appeal.
(A) If a defendant timely makes any of the following motions under the Federal Rules of Criminal Procedure, the notice of appeal from a judgment of conviction must be filed within 14 days after the entry of the order disposing of the last such remaining motion, or within 14 days after the entry of the judgment of conviction, whichever period ends later. This provision applies to a timely motion:
(i) for judgment of acquittal under Rule 29;
(ii) for a new trial under Rule 33, but if based on newly discovered evidence, only if the motion is made no later than 14 days after the entry of the judgment; or
(iii) for arrest of judgment under Rule 34.
(B) A notice of appeal filed after the court announces a decision, sentence, or order—but before it disposes of any of the motions referred to in Rule 4(b)(3)(A)—becomes effective upon the later of the following:
(i) the entry of the order disposing of the last such remaining motion; or
(ii) the entry of the judgment of conviction.
(C) A valid notice of appeal is effective—without amendment—to appeal from an order disposing of any of the motions referred to in Rule 4(b)(3)(A).
(4) Motion for Extension of Time.
Upon a finding of excusable neglect or good cause, the district court may—before or after the time has expired, with or without motion and notice—extend the time to file a notice of appeal for a period not to exceed 30 days from the expiration of the time otherwise prescribed by this Rule 4(b).
(5) Jurisdiction.
The filing of a notice of appeal under this Rule 4(b) does not divest a district court of jurisdiction to correct a sentence under Federal Rule of Criminal Procedure 35(a), nor does the filing of a motion under 35(a) affect the validity of a notice of appeal filed before entry of the order disposing of the motion. The filing of a motion under Federal Rule of Criminal Procedure 35(a) does not suspend the time for filing a notice of appeal from a judgment of conviction.
(6) Entry Defined.
A judgment or order is entered for purposes of this Rule 4(b) when it is entered on the criminal docket.
IRON MOUNTAIN MINE INSTITUTE - BIOREFINERY - HYDROPOWER - RESOURCE & RECOVERY - ARMAN CONSERVATORY TRUSTS
Federal Emergency Management Agency
U.S. Department of Homeland Security
500 C Street SW, Washington, D.C. 20472
(202) 646-2500
(Complete this section if your request relates to a specific project)
Name of Project: IRON MOUNTAIN MINE INSTITUTE
Location (include city/county and state): MINNESOTA, REDDING/ SHASTA AND CALIFORNIA
Corps District(s):
Non-Federal Sponsor Contact Information (Name, Phone, and Email Address):
Corps Report: If the Request is for a construction authorization, does the project have a
completed Corps report? yes no
Project Modification: Does this request modify an existing authorization? yes no
If yes, please provide a reference for the existing authorization
IRON MOUNTAIN MINE EPA ID: CAD980498612 OU 01 REDDING , CA 10/03/1986
Project Cost: 1 BILLION
Policy/Programmatic/Other Language Requests
(Complete this section if your request is programmatic or policy-related)
Provision Title: SAFE WATERSHED REFORM-ACT
Affected (if applicable):
Description of Purpose and Need for Request: CERCLA 118, DRINKING WATER
(Complete this section for ALL requests. Attach additional pages if needed.)
Dear Mr. Hutchens:
Thank you for taking the time to write and share your views with me. Your comments will help me continue to represent you and other Californians to the best of my ability. Be assured that I will keep your views in mind as the Senate consider s legislation on this or similar issues.
If you would like additional information about my work in the U.S. Senate, I invite you to visit my website, http://boxer.senate.gov . From this site, you can access my statements and press releases about current events and pending legislation, request copies of legislation and government reports, and receive detailed information about the many services that I am privileged to provide for my constituents. You may also wish to visit http://thomas.loc.gov to track current and past federal legislation.
Again, thank you for sharing your thoughts with me. I appreciate hearing from you.
Barbara Boxer
Washington, D.C.-Sen. James Inhofe (R-Okla.), Ranking Member on the Senate Committee on Environment and Public Works, together with Senators David Vitter (R-LA), Mike Crapo (R-ID), John Boozman (R-AR), Thad Cochran (R-MS), and Jim Risch (R-ID), yesterday introduced The Small System Safe Drinking Water Act of 2011 (S. 999)-a bill that helps small water systems comply with Federal drinking water standards by requiring that the Environmental Protection Agency (EPA) utilize all the affordability provisions provided under the 1996 Safe Drinking Water Act amendments (SDWA), which are designed to help water systems in smaller communities come into compliance.
Details about The Small System Safe Drinking Water Act of 2011
Specifically, this bill requires EPA to update its affordability criteria, which it admitted in 2006 is unfair to small systems. Currently, EPA assumes that families can afford water rates of 2.5 percent of their annual median household income, or $1,000 per household. For some families, paying $83 a month for water may not be a hardship but for so many more, it is nearly impossible. This bill guarantees that there is some flexibility inserted into the calculation that determines the ability of the truly disadvantaged to pay these costs-it will make sure small systems get the help they need to meet these requirements.
It provides EPA with practical steps to take to help small systems cope with drinking water rules by reauthorizing the technical assistance program and identifying barriers to new technologies. The bill creates a pilot program to demonstrate new technologies and approaches for systems of all sizes to comply with these complicated rules.
Most importantly this bill requires the federal government to pay for these unfunded mandates created by laws and regulations: In 1995, Congress passed the Unfunded Mandates Reform Act to ensure that the Federal government pays the costs incurred by state and local governments in complying with Federal laws. The bill ensures that EPA cannot take an enforcement action against a system serving less than 10,000 people, without first ensuring that it has sufficient funds to meet the requirements of the regulation.
EPA To Hold Listening Sessions on Potential Revisions to Water Quality Standards Regulation
07/30/2010 Contact Information: Dave Ryan Ryan.dave@epa.gov 202-564-7827 202-564-4355
WASHINGTON - The U.S. Environmental Protection Agency (EPA) will hold two public listening sessions on potential changes to the water quality standards regulation before proposing a national rule. The current regulation, which has been in place since 1983, governs how states and authorized tribes adopt standards needed under the Clean Water Act to protect the quality of their rivers, streams, lakes, and estuaries. Potential revisions include strengthening protection for water bodies with water quality that already exceeds or meet the interim goals of the Clean Water Act; ensuring that standards reflect a continued commitment to these goals wherever attainable; improving transparency of regulatory decisions; and strengthening federal oversight.
Water quality standards are the foundation of the water quality-based approach to pollution control, including Total Maximum Daily Loads and National Pollutant Discharge Elimination System permits. Standards are also a fundamental component of watershed management.
The public listening sessions will be held via audio teleconferences on August 24 and 26, 2010, from 1 p.m. to 2:30 p.m. EDT. At the sessions, EPA will provide a review of the current regulation and a summary of the revisions the agency is considering. Clarifying questions and brief oral comments (three minutes or less) from the public will be accepted at the sessions, as time permits. EPA will consider the comments received as it develops the proposed rulemaking. EPA will also hold separate listening sessions for state, tribal and local governments.
A BILL To amend the Federal Water Pollution Control Act to preserve the authority of each State to make determinations relating to the State's water quality standards, and for other purposes. Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, SECTION 1. SHORT TITLE. This Act may be cited as the ``Clean Water Cooperative Federalism Act of 2011''. SEC. 2. STATE WATER QUALITY STANDARDS. (a) State Water Quality Standards.--Section 303(c)(4) of the Federal Water Pollution Control Act (33 U.S.C. 1313(c)(4)) is amended-- (1) by redesignating subparagraphs (A) and (B) as clauses (i) and (ii), respectively; (2) by striking ``(4)'' and inserting ``(4)(A)''; (3) by striking ``The Administrator shall promulgate'' and inserting the following: ``(B) The Administrator shall promulgate''; and (4) by adding at the end the following: ``(C) Notwithstanding subparagraph (A)(ii), the Administrator may not promulgate a revised or new standard for a pollutant in any case in which the State has submitted to the Administrator and the Administrator has approved a water quality standard for that pollutant, unless the State concurs with the Administrator's determination that the revised or new standard is necessary to meet the requirements of this Act.''. (b) Federal Licenses and Permits.--Section 401(a) of such Act (33 U.S.C. 1341(a)) is amended by adding at the end the following: ``(7) With respect to any discharge, if a State or interstate agency having jurisdiction over the navigable waters at the point where the discharge originates or will originate determines under paragraph (1) that the discharge will comply with the applicable provisions of sections 301, 302, 303, 306, and 307, the Administrator may not take any action to supersede the determination.''. (c) State NPDES Permit Programs.--Section 402(c) of such Act (42 U.S.C. 1342(c)) is amended by adding at the end the following: ``(5) Limitation on authority of administrator to withdraw approval of state programs.--The Administrator may not withdraw approval of a State program under paragraph (3) or (4), or limit Federal financial assistance for the State program, on the basis that the Administrator disagrees with the State regarding-- ``(A) the implementation of any water quality standard that has been adopted by the State and approved by the Administrator under section 303(c); or ``(B) the implementation of any Federal guidance that directs the interpretation of the State's water quality standards.''. (d) Limitation on Authority of Administrator To Object to Individual Permits.--Section 402(d) of such Act (33 U.S.C. 1342(d)) is amended by adding at the end the following: ``(5) The Administrator may not object under paragraph (2) to the issuance of a permit by a State on the basis of-- ``(A) the Administrator's interpretation of a water quality standard that has been adopted by the State and approved by the Administrator under section 303(c); or ``(B) the implementation of any Federal guidance that directs the interpretation of the State's water quality standards.''. SEC. 3. PERMITS FOR DREDGED OR FILL MATERIAL. (a) Authority of EPA Administrator.--Section 404(c) of the Federal Water Pollution Control Act (33 U.S.C. 1344(c)) is amended-- (1) by striking ``(c)'' and inserting ``(c)(1)''; and (2) by adding at the end the following: ``(2) Paragraph (1) shall not apply to any permit if the State in which the discharge originates or will originate does not concur with the Administrator's determination that the discharge will result in an unacceptable adverse effect as described in paragraph (1).''. (b) State Permit Programs.--The first sentence of section 404(g)(1) of such Act (33 U.S.C. 1344(g)(1)) is amended by striking ``The Governor of any State desiring to administer its own individual and general permit program for the discharge'' and inserting ``The Governor of any State desiring to administer its own individual and general permit program for some or all of the discharges''. SEC. 4. DEADLINES FOR AGENCY COMMENTS. Section 404 of the Federal Water Pollution Control Act (33 U.S.C. 1344) is amended-- (1) in subsection (m) by striking ``ninetieth day'' and inserting ``30th day (or the 60th day if additional time is requested)''; and (2) in subsection (q)-- (A) by striking ``(q)'' and inserting ``(q)(1)''; and (B) by adding at the end the following: ``(2) The Administrator and the head of a department or agency referred to in paragraph (1) shall each submit any comments with respect to an application for a permit under subsection (a) or (e) not later than the 30th day (or the 60th day if additional time is requested) after the date of receipt of an application for a permit under that subsection.''. <all> [Congressional Bills 112th Congress] [From the U.S. Government Printing Office] [H.R. 2018 Introduced in House (IH)] 112th CONGRESS 1st Session H. R. 2018 To amend the Federal Water Pollution Control Act to preserve the authority of each State to make determinations relating to the State's water quality standards, and for other purposes. _______________________________________________________________________
IN THE HOUSE OF REPRESENTATIVES May 26, 2011 Mr. Mica (for himself, Mr. Rahall, Mr. Shuster, Mrs. Capito, Mr. Coble, Mr. Barletta, Mr. Landry, Mr. Duncan of Tennessee, Mr. Bucshon, Mr. Crawford, Mr. Graves of Missouri, Mr. Gibbs, Mr. Critz, Mr. Altmire, Mr. Holden, Mr. Hunter, Mr. Gary G. Miller of C, Mr. Young of Alaska, Mrs. Schmidt, and Mr. Rogers of Kentucky) introduced the bill; which was referred to the Committee on Transportation and Infrastructure
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“The Small Systems Safe Drinking Water Act of 2011 ” introduced today. ... Senator Inhofe's bill brings equity and fairness to small towns by requiring that ...
www.rural water .org/ inhofe %20 2011 .pdf
Inhofe Bill Advances Clean & Safe
Water and Environmental Justice in
Small and Rural Communities
Background:
Through his leadership position on the EPW Committee, Senator Inhofe has made unfunded mandates a top priority. Since the 108th Congress, he has co-authored and cosponsored legislation to provide additional resources to communities through the State Revolving Loan Funds.
The Small Drinking Water Bill requires the federal government to live up to its obligations and require the EPA to use the tools it was given in the 1996 Safe Drinking Water Act amendments (SDWA). Currently EPA assumes that families can afford water rates of 2.5 percent of their annual median household income, or $1,000 per household. For some families, paying $83 a month for water may not be a hardship but for so many more, it is nearly impossible. There must be some flexibility inserted into the calculation that factors in the ability of the truly disadvantaged to pay these costs. Forcing systems to raise rates beyond what their ratepayers can afford only causes more damage than good.
The bill directs EPA to take additional factors into consideration when making this determination: These include ensuring that the affordability criteria are not more costly on a per-capita basis to a small water system than to a large water system. In EPA's most recent drinking water needs survey , Oklahoma identified a total of over $4.1 billion in drinking water needs over the next 20 years. $2.4 billion of that need is for community water systems that serve fewer than 10,000 people. The $4.1 billion does not include the total costs imposed on Oklahoma communities to meet federal clean water requirements, the new Groundwater rule, the DBP II rule or the Long Term 2 Enhanced Surface Water Treatment Rule. Oklahoma continues to have municipalities struggling with the 2002 arsenic rule. Many of our small systems are having difficulty with the Disinfection Byproducts (DBP) Stage I rule, and small systems who purchase water from other systems and did not have to test, treat or monitor their water must now comply with DBP II. EPA estimates that over the next 20 years, the entire country will need $52.0 billion dollars to come into compliance with existing, proposed or recently promulgated regulations.
The bill proposes a few simple steps to help systems comply with all these rules:
Reauthorizes the technical assistance program in the Safe Drinking Water Act. The DBP rules are very complex and involve a lot of monitoring and testing. If we are going to impose complicated requirements on systems, we need to provide them with help to implement those requirements.
The bill creates a pilot program to demonstrate new technologies and approaches for systems of all sizes to comply with these complicated rules.
It requires the EPA to convene a working group to examine the science behind the rules in order to compare new developments since each rule's publication. Section 1412(b)(4)(E) of the SDWA Amendments of 1996 authorizes the use of point of entry treatment, point of use treatment and package plants to economically meet the requirements of the Act. However, to date, these approaches are not widely used by small water systems. The bill directs the EPA to convene a working group to identify barriers to the use of these approaches. The EPA will then use the recommendations of the working group to draft a model guidance document that states can use to create their own programs.
Most importantly this bill requires the federal government to pay for these unfunded mandates created by laws and regulations: In 1995, Congress passed the Unfunded Mandates Reform Act to ensure that the Federal government pays the costs incurred by state and local governments in complying with Federal laws. The bill is designed to ensure that EPA cannot take an enforcement action against a system serving less than 10,000 people, without first ensuring that it has sufficient funds to meet the requirements of the regulation.
Home NASA Be A Martian is an open-source project written in Silverlight for Windows Phone 7. Hosted on Windows Azure and Azure DataMarket , Be A Martian is a community for those who want to become Martian citizens, or are just interested in exploring the Red Planet. Be A Martian features numerous ways to explore and learn about Mars:
"View" area: here you can check out stunning Mars images, watch videos and animations of future Mars missions.
"Participate" area: this is where we utilize crowdsourcing to allow the public to add to worldwide understanding of Mars by tagging rover images and mapping craters from satellite pictures.
"Learn" area: features here include Mars related news, and a question-and-answer forum that was built using the free Microsoft Townhall framework. More info on Microsoft TownHall can be found at http://code.msdn.microsoft.com/TownHall .
"Explore" area: a deep-zoom enabled map of the Red Planet with interesting summaries of each different region of Mars.
Be a Martian was created under a Memorandum of Understanding between NASA/JPL-Caltech and Microsoft. The website can be found at beamartian.jpl.nasa.gov .
Apr 5, 2011 ... The EPA Office of Solid Waste and Emergency Response (OSWER) Community Engagement Initiative (CEI) is designed to enhance OSWER and regional ... www.epa.gov/oswer / engagement initiative/ index.htm - Cached
Solid Waste and Emergency Response
The EPA Office of Solid Waste and Emergency Response (OSWER) Community Engagement Initiative (CEI) is designed to enhance OSWER and regional offices' engagement with local communities and stakeholders to help them meaningfully participate in government decisions on land cleanup, emergency preparedness and response, and the management of hazardous substances and waste. Learn more about CEI .
Public Review Requested
OSWER seeks and encourages feedback from communities, stakeholders, local governments, tribes and states on the CEI and all available documents and outcomes. OSWER is requesting stakeholder feedback through the end of July 2011 on:
Work Plans to Evaluate and Enhance Public Participation in OSWER Processes (Action 1)
Community Engagement Training for EPA Personnel (Action 14)
Community Engagement Initiative Actions
EPA established 16 Actions under the Community Engagement Initiative. Each action links to a page that contains all materials and an Action update fact sheet that summarizes the progress and schedule. The actions EPA established for the CEI are:
Environmental Workforce Development and Job Training Program Visit the updated website to learn more about the Environmental Workforce Development and Job Training Program.
The Journal of Community Engagement and Higher Education
Introducing The Journal of Community Engagement and Higher Education : a new on-line, refereed journal examining perspectives, research, and practices of community engagement and community-based learning in higher education. The date for the first publication is projected for Spring 2009. The deadline to submit manuscripts for the inaugural issue has passed. However, papers for the second issue of the journal may be submitted at any time, as we are currently accepting manuscripts on an ongoing basis." The journal is published semi-annually by Indiana State University.
Call for Reviewers of Manuscripts
The Journal of Community Engagement and Higher Education is currently seeking qualified individuals to serve as reviewers of manuscripts. Reviewers should be able to demonstrate background in and contributions to the fields of community based learning and higher education policy. Interested individuals should submit an email of interest and an abbreviated copy of their vita to: Nancy Brattain Rogers
JCEHE Editor
Center for Community Engagement
Tirey Hall, room 134A
Indiana State University
Terre Haute, IN 47809
812-237-2334 nancy.rogers@indstate.edu The Journal of Community Engagement and Higher Education is edited and published by the Center for Community Engagement (CCE) at Indiana State University (ISU) in conjunction with Indiana Campus Compact .
Virginia Commonwealth University and its community partners collaborate to enhance the quality of life for all who work, live and study in the Richmond area and beyond. For its record of successful university-community partnerships, VCU received the Carnegie Foundation designation as a community engaged campus. The Caring to Act Calendar provides opportunities for the VCU community to participate in community service projects in the Richmond region in the spirit that through doing, we grow as contributing citizens. Click here to learn more about this exciting new program.
We value you as a reader, whether of the hardcopy journal, the e-journal, or the JCES website. If you don't find what you need here, email us at jces@ua.edu . March 4, 2011
The meeting was opened by Dr. Pruitt, who expressed deep appreciation to the board members for their time and dedication. Dr. Simon also thanked the board for their work with the journal.
Dr. Oluwoye stated that he had taken his copy of JCES to conferences, and suggested that board members attending international conferences might take along copies of JCES to publicize the journal.
Dr. Fitzgerald said that his quote on our “Call for Manuscripts” flier conveyed his thoughts regarding JCES. He also described JCES as a “well-edited publication.”
Dr. Alter congratulated the editor and staff on getting JCES up and running, and said that he is impressed with the appearance and substance of the journal. Dr. Alter feels that JCES is invaluable to practitioners and includes interesting and insightful contributions. Furthermore, Dr. Alter has colleagues in Australia who might be interested in involvement with JCES.
Dr. Sanyal stated that JCES fills an important niche and motivates students.
Jay Lamar shared that Dr. Mullins' recent visit to the Auburn campus was inspirational for students and faculty and instrumental in establishing connections. Dr. Alter pointed out the necessity of holding ourselves and our contributors to the highest standards of scholarship. On that note, Dr. Jakes noted that our rejection rate demonstrated our commitment to engaged scholarship scholars. However, she expressed concern about the length of time between acceptance of a manuscript and its publication date.
Dr. Simon stated that we are willing to work with our authors because this is a new area of scholarship. As JCES has become more established, and the field of engagement scholarship more founded, we have seen an increase in the quality of submissions, requiring less time on the production end to bring the manuscripts up to the quality we are looking for.
We are issuing a call for manuscripts for the next three issues. The closing dates are August 31, 2011, March 31, 2012, and December 1, 2012. The December issue will follow that year's National Outreach Scholarship Conference, which we will host. The theme for the conference will be “Partner. Inspire. Change,” and the special issue will draw heavily from conference presentations.
In just three years, JCES has helped to define the young field of engaged scholarship by taking a different approach: Manuscripts must be well written using language accessible to ordinary citizens, not just to trained scholars; presentations must measure up to the highest standards of visual design; and over time the content must move the field forward by appealing to laypeople and academics alike.
We are aware of no other peer-reviewed journal with these requirements. The journal features research from all disciplines using all methods. We have been fortunate to receive many manuscripts from the social sciences, education, and health; we need more from the arts, humanities, science, and engineering.
“Congratulations to you and your staff on the absolutely first rate issue of JCES. A nice standard to live up to.”
Take a Look Inside
Community Engagement next previous Click on screenshots to view larger. In addition to the robust capabilities the Course Delivery module provides, clients across the world also leverage the Community Engagement module to build a vibrant online university or school ecosystem. Through the additional tools in Community Engagement, the Blackboard Learn solution goes well beyond online teaching and learning. It delivers a better, more customized user experience on every level.
WIth the Community Engagement module, you can help your institution:
Promote easier online collaboration and communication for campus groups, clubs, committees, faculty, students or administration.
Represent multiple unique identities or brands across different campuses, schools, colleges or degree programs .
Be more efficient in delivering school-wide or district-wide news with targeted information based on the users' role—student, teacher, administrator, first year, business major, etc.
Build vibrant online communities. Provide collaborative spaces. Deliver targeted information.
The Community Engagement module gives you a great deal of flexibility to manage your user community in a way that fits with your goals and priorities.
What is Community Engagement?
Institutional roles give administrators the flexibility to deliver targeted user information. For example, a university may want to send a particular message to first year students and instructors, or only to online students. Or a K12 district may want to contact students and teachers from a certain school.
Branding allows for unique online identities for distinct colleges, degree programs, physical campuses, and K12 schools or districts.
Portal functionality leverages flexible modules and tabs to provide a one-stop shop for all academic and campus information.
Domains and administration allows an IT department to edit and produce content to any program or department on campus or within a district.
Notifications Dashboard provides a roll-up of all the courses and organizations users are involved in, allowing them to see updates and key information in one location.
Last Updated on Thursday, July 09, 2009 at 5:02 AM A community's engagement in schools is a way to focus public attention on the partnership necessary to bring every student to his or her fullest potential. Within the Kentucky Department of Education several initiatives and programs focus on engaging communities in the educational success of students. Among these are Community Education and 21 st Century Community Learning Centers. Inherent in the success of these initiatives and programs is the involvement of communities and schools in partnerships. According to Larry Decker, C.S. Mott Professor at Florida Atlantic University, in Engaging Families & Communities , "the emerging trend is for community engagement to be localized and personalized…" Community Education is one process that engages communities in creating successful education opportunities for all students, as well as opportunities to solve broader community issues. Partnerships provide a unique collaboration between communities and their schools. Community Education
Community Education provides the necessary leadership to address learning opportunities for persons of all ages and needs, expand utilization of schools and other public facilities, engage citizens in planning and problem solving activities that address school/community concerns, and acquire more effective school/community/family partnerships. Community Education is an opportunity to rediscover community. ... More Community Education Components
Community Education is a powerful concept that acknowledges learning is dynamic and changing, occurs in many forms, and is a lifelong requirement for human development. It is a way of thinking about and organizing public schools for individual and community development. Kentucky's 21st Century Community Learning Centers
The No Child Left Behind Act of 2001 recognizes that improved student achievement occurs when communities implement programs and strategies scientifically proven to be effective. The 21st Century Community Learning Centers (CCLC) program is an essential part of this initiative. Many communities across the Commonwealth are working together with new energy ... More
For more information contact:
The mission of the Office of Community Engagement is to facilitate the use of university resources to support existing partnerships and engage new partners to contribute to the educational, social, and economic progress of the community , region, and state. The office is responsible for facilitating, coordinating, and advancing university-wide community engagement . The unit contributes to and supports the diversity outreach initiatives of the university. The Office of Community Engagement builds effective relationships and partnerships with internal and external constituents to advance the mutual needs of the community and the University. The office is responsible for developing a process to evaluate the effectiveness of existing and new university/ community partnerships. Follow this link to find out more about the Vice President of Community Engagement .
The predominant mission of the Community Engagement Key Function Committee is to implement a successful broad plan of community and practice engagement among the CTSA sites by sharing knowledge, expertise and resources. The goal of the CTSA Community Engagement Key Function Committee is to effectively engage communities and practices in the translational research process via bidirectional dialogues. The main areas of focus include: community and practice outreach, access and dissemination of the translational research process via bidirectional dialogues. The specific milestones of the committee include developing a community engagement needs assessment ; generating a project registrar with the input of the NIH and other federal agencies , and community practices agencies and members; establishing partnerships for funding collaborative development of curricula and evaluation outcomes as well as metrics for community engaged research.
Accomplishments:
Researchers and Their Communities: The Challenge of Meaningful Community Engagement The CTSA Community Engagement KFC is pleased to announce the completion of the Best Practices in Community Engagement summary: Click to view . The report provides meeting proceedings from the CTSA Community Engagement KFC 2007-2008 regional and national workshops and conferences summarizing community engagement best practices and is now available for use and dissemination. For citations, please use the following: Clinical and Translational Science Awards Community Engagement Key Function Committee (2009). Researchers and Their Communities: The Challenge of Meaningful Community Engagement. http://www.ctsaweb.org/index.cfm?fuseaction=committee.viewCommittee&com_ID=3&abbr=CEKFC
The Higher Education Network for Community Engagement ( HENCE ) is a response to the growing need to deepen, consolidate, and advance the literature, research, practice, policy, and advocacy for community engagement as a core element of higher education's role in society. Increasingly, higher education institutions are intentionally connecting academic work to public purposes through extensive partnerships that involve faculty and students in active collaboration with communities. This idea of "community engagement" is renewing the civic mission of higher education and transforming academic culture in ways that are both exciting and challenging.
Educators for Community Engagement is the only national organization committed to democratizing classrooms and communities through learning circles, service-learning, and critical dialogue.
ECE brings together college and university students, faculty, staff, and local community organizations to develop and implement creative strategies for teaching, learning, and social justice.
Educators for Community Engagement explore current issues in service-learning and civic engagement through learning circles. Learning circles are based on a spirit of reciprocal and cooperative learning for self and social transformation which different people will implement with different styles and emphases. Learning circles as a tool for learning and social justice grow out of a great tradition of people's education , democratizing education, and community development.
For more information on our work, or to get involved, contact Laurel Hirt at LHirt@class.cla.umn.edu .
The goal of the Michigan Institute for Clinical & Health Research's (MICHR) Community Engagement Program is to involve the community's expertise and knowledge in improving the quality of U-M clinical health research and producing outcomes that measurably benefit the health of the local community. We aim to support research that is more relevant to people's needs and concerns, more reliable, and more likely to be used. Building capacity among our community leaders to ensure that community-based organizations can be full partners in the research enterprise is an essential step in addressing public trust and participation in research. Community-based approaches have become increasingly respected ways to conduct health research programs , both for observational studies and for intervention studies. Involving the community in the design and conduct of programs helps ensure that research participants understand intervention content and that research questions are reliable and valid. Researchers also often find that sharing research findings with members of the target population further illuminates those findings and also improves community partnerships. MICHR's Community Engagement Program will strengthen Community-University research partnerships by serving as a conduit to increase bi-directional communication, thus linking community priorities with appropriate study designs.
To provide an academic home within U-M that allows identification of community partners and development of long-standing, collaborative, and equitable Community-University research partnerships.
To create educational, training, and career development opportunities that promote bi-directional knowledge flow between the public & investigator, and the provider & investigator communities, using a co-learning process that builds local capacity.
To enhance infrastructure and tools to support Community-University research partnerships based on empowering and power-sharing processes.
To create and test new innovative methods for community engagement and community-based participatory research, and catalyze innovative implementation science research and methodology development.
To provide leadership/share knowledge that promotes bi-directional Community-University research partnerships.
Services 1. Training/Education : MICHR is currently working to develop training opportunities via a co-learning process that emphasizes the essential role of the community in the clinical research process. Training will be available to faculty, staff, and community members. Past Training / Education Tribal Health Summit: The Community Engagement Program is committed to improving the health and wellness of all communities of Michigan through involving the community's expertise and knowledge in improving the quality of U-M clinical health research and producing outcomes that measurably benefit the health of local communities. As part of this mission, the CE Program co-sponsored, along with the Office of State Outreach within the Office of the Vice President for Government Relations at U-M and American Indian Health & Family Services of Southeastern Michigan (AIHFS), Inc. which is a non-profit agency dedicated to providing comprehensive health care to the Native American community of Southeastern Michigan, the first Tribal Health Summit held at the University of Michigan. The goal was for the University of Michigan and Tribal Communities throughout Michigan to work on establishing relationships to create/develop long-term sustainable partnerships to help meet the health care needs of tribal communities through health research and service by expanding the university's outreach initiatives. more >> 2. Clinical Research Recruitment: To answer the need for a central electronic location for clinical research at the University of Michigan, the Michigan Institute for Clinical & Health Research (MICHR) developed Engage. The UMClinicalStudies.org website began as a tool to help volunteers interested in participating in clinical research match to investigators and study teams in need of recruiting volunteers, and was designed to provide a single gateway for clinical research. The site consists of several pieces - study database, information on clinical research for the public, multicultural research pages, a public search tool, information for study teams, as well as a HIPAA and IRB Compliant Registry. The UMClinicalStudies.org Registry was released in January 2007, and consists of a database that allows patients or community members to sign up for a single study or the general registry. UMClinicalStudies.org Community Information & Education Sections contain a mini-tutorial about clinical research, as well as pages focused on diversity and multicultural research participation, and a health glossary containing links to specific health conditions or preventative health information . 3. Consultation: The U-M Community Engagement Program is a university and community resource where agencies, organizations, residents, and faculty can receive training and consultation to better understand health research, obtain assistance in research design, better define their concerns, and be connected with partners to conduct effective Community-University research projects. Community and faculty members are invited to contact the Community Engagement Program for guidance and assistance in developing health research projects by e-mailing ksehgal@umich.edu or calling 734.763.8886. Funding Opportunities for Community-University Research Partnerships: The purpose of the MICHR Community-University Research Partnerships program is to support one-year pilot and/or feasibility research studies of innovative interventions and/or techniques designed to improve/benefit the health of the community. Through this mechanism, we aim to 1) build the capacity of communities and the University of Michigan to engage in authentic research partnerships, 2) combine the knowledge, wisdom, and experience in communities and at U-M to make a positive impact on local health challenges, and 3) enhance networks and infrastructure that will promote community research that not only takes place in the community, but involves the community. Community-University Research Partnerships Pilot Program Checklist Community Engagement Program Supported Projects Key Community Engagement Team Members Research Liaison : The Research Liaison is available to ensure that investigators address key community issues, and also provides consultation, assistance and monitoring to research investigators. The Liaison maintains a strong working relationship with the IRB in order to provide monitoring and guidance to investigators, and maintains the ability to match researchers with community groups and their needs. Clinical Research Associates (CRAs ): CRAs are available in the Detroit, Flint, and Ypsilanti communities, where they engage in regular meetings with community leaders and social service agencies, and are able to provide deeper insight into the barriers that separate the scientific community from the public. They work to enhance Community-University partnerships to move health research forward that is responsive to community needs. Community Engagement Coordinating Council : The CECC meets monthly to provide an ongoing forum for researchers and community members to discuss health research projects priorities. The council provides a forum for community-initiated research issues, which are then channeled to appropriate University of Michigan researchers who can work with the community to investigate the respective problem. The Council also works to mobilize CTSA resources that will best facilitate Community-University partnerships. Coordinating Council Members CECC Partnerships / Council Members: Community Partners:
OPIS/Community Engagement Leadership Robert Anderson, EdD Professor, Department of Medical Education boba@med.umich.edu David Gordon, MD Associate Dean for Diversity & Career Development, School of Medicine dgordon@med.umich.edu Carolyn Sampselle, PhD, RNC, FAAN Community Engagement Program Director Professor, School of Nursing csampsll@umich.edu Marita Titler, PhD, RN, FAAN Associate Director Associate Dean, Office of Practice & Clinical Scholarship School of Nursing Don Vereen, MD, MPH Prevention Research Center of Michigan dvereen@umich.edu Marc Zimmerman, PhD Community Engagement Program Co-Director Professor, Health Behavior Health Education Director, Prevention Research Center of Michigan marcz@umich.edu
Directorate for Geosciences
Division of Earth Sciences
Full Proposal Target Date(s):
September 26, 2011
Fourth Monday in September, Annually Thereafter
IMPORTANT INFORMATION AND REVISION NOTES
A revised version of the NSF Proposal & Award Policies & Procedures Guide (PAPPG) , NSF 11-1 , was issued on October 1, 2010 and is effective for proposals submitted, or due, on or after January 18, 2011. Please be advised that the guidelines contained in NSF 11-1 apply to proposals submitted in response to this funding opportunity.
Cost Sharing: The PAPPG has been revised to implement the National Science Board's recommendations regarding cost sharing. Inclusion of voluntary committed cost sharing is prohibited. In order to assess the scope of the project, all organizational resources necessary for the project must be described in the Facilities, Equipment and Other Resources section of the proposal. The description should be narrative in nature and must not include any quantifiable financial information. Mandatory cost sharing will only be required when explicitly authorized by the NSF Director. See the PAPP Guide Part I: Grant Proposal Guide (GPG) Chapter II.C.2.g(xi) for further information about the implementation of these recommendations.
Data Management Plan: The PAPPG contains a clarification of NSF's long standing data policy. All proposals must describe plans for data management and sharing of the products of research, or assert the absence of the need for such plans. FastLane will not permit submission of a proposal that is missing a Data Management Plan. The Data Management Plan will be reviewed as part of the intellectual merit or broader impacts of the proposal, or both, as appropriate. Links to data management requirements and plans relevant to specific Directorates, Offices, Divisions, Programs, or other NSF units are available on the NSF website at: http://www.nsf.gov/bfa/dias/policy/dmp.jsp . See Chapter II.C.2.j of the GPG for further information about the implementation of this requirement.
Postdoctoral Researcher Mentoring Plan: As a reminder, each proposal that requests funding to support postdoctoral researchers must include, as a supplementary document, a description of the mentoring activities that will be provided for such individuals. Please be advised that if required, FastLane will not permit submission of a proposal that is missing a Postdoctoral Researcher Mentoring Plan. See Chapter II.C.2.j of the GPG for further information about the implementation of this requirement.
Revision Summary
The deadline date has been changed to a Target Date.
SUMMARY OF PROGRAM REQUIREMENTS
General Information
Program Title:
Cooperative Studies Of The Earth's Deep Interior (CSEDI)
Synopsis of Program:
The Division of Earth Sciences (EAR) invites the submission of proposals for collaborative, interdisciplinary studies of the Earth's interior within the framework of the community-based initiative known as Cooperative Studies of the Earth's Deep Interior (CSEDI). Funding will support basic research on the character and dynamics of the Earth's mantle and core, their influence on the evolution of the Earth as a whole, and on processes operating within the deep interior that affect or are expressed on the Earth's surface.
Projects may employ any combination of field, laboratory, and computational studies with observational, theoretical, or experimental approaches. Support is available for research and research infrastructure through grants and cooperative agreements awarded in response to investigator-initiated proposals from U.S. universities and other eligible institutions. Multidisciplinary work is required. EAR will consider co-funding of projects with other agencies and supports international work and collaborations.
Cognizant Program Officer(s):
Please note that the following information is current at the time of publishing. See program website for any updates to the points of contact.
Robin Reichlin, Program Director, Geophysics, 785 S, telephone: (703) 292-8556, fax: (703) 292-9025, email: rreichli@nsf.gov
Sonia Esperanca, Program Director, Petrology and Geochemistry, 785 S, telephone: (703) 292-8554, email: sesperan@nsf.gov
Applicable Catalog of Federal Domestic Assistance (CFDA) Number(s):
47.050 --- Geosciences
Award Information
Anticipated Type of Award: Standard Grant or Continuing Grant or Cooperative Agreement
Estimated Number of Awards: 5 to 10 awards are expected, depending on award amounts
Anticipated Funding Amount: $2,000,000 per year, pending availability of funds
Eligibility Information
Organization Limit:
Proposals may only be submitted by the following:
Universities and Colleges - Universities and two- and four-year colleges (including community colleges) accredited in, and having a campus located in the US, acting on behalf of their faculty members. Such organizations also are referred to as academic institutions.
Non-profit, non-academic organizations: Independent museums, observatories, research labs, professional societies and similar organizations in the U.S. associated with educational or research activities
PI Limit:
None Specified
Limit on Number of Proposals per Organization:
None Specified
Limit on Number of Proposals per PI:
None Specified
Proposal Preparation and Submission Instructions
A. Proposal Preparation Instructions
Letters of Intent: Not Applicable
Preliminary Proposal Submission: Not Applicable
Full Proposals:
Full Proposals submitted via FastLane: NSF Proposal and Award Policies and Procedures Guide, Part I: Grant Proposal Guide (GPG) Guidelines apply. The complete text of the GPG is available electronically on the NSF website at: http://www.nsf.gov/publications/pub_summ.jsp?ods_key=gpg .
Full Proposals submitted via Grants.gov: NSF Grants.gov Application Guide: A Guide for the Preparation and Submission of NSF Applications via Grants.gov Guidelines apply (Note: The NSF Grants.gov Application Guide is available on the Grants.gov website and on the NSF website at: http://www.nsf.gov/publications/pub_summ.jsp?ods_key=grantsgovguide )
B. Budgetary Information
Cost Sharing Requirements: Inclusion of voluntary committed cost sharing is prohibited.
Indirect Cost (F&A) Limitations: Not Applicable
Other Budgetary Limitations: Other budgetary limitations apply. Please see the full text of this solicitation for further information.
C. Due Dates
Full Proposal Target Date(s):
September 26, 2011
Fourth Monday in September, Annually Thereafter
Proposal Review Information Criteria
Merit Review Criteria: National Science Board approved criteria. Additional merit review considerations apply. Please see the full text of this solicitation for further information.
Award Administration Information
Award Conditions: Standard NSF award conditions apply.
Reporting Requirements: Standard NSF reporting requirements apply.
CSEDI is a community initiative originally organized by members of the SEDI (Studies of the Earth's Deep Interior) committee of the IUGG (International Union of Geodesy and Geophysics) and the SEI (Studies of the Earth's Interior) committee of the American Geophysical Union. A science plan was developed, and later updated (2004), with broad community input and support and reflects the scientific objectives of the initiative. This initiative grew out of the realization that the most important problems related to the Earth's interior need a multi-disciplinary effort that brings to bear in a coherent way creative and imaginative thinking about the state and dynamics of the Earth's interior, along with the utilization of the most advanced computational, experimental, analytical, and observational techniques. Ultimately, the goal of such efforts is to determine as quantitatively as possible how the Earth's interior works, and how processes in the Earth's deep interior control the structure and evolution of the Earth as a whole.
Societally relevant applications of CSEDI's research are wide-ranging, and help improve our understanding of natural and anthropogenic hazards; global climate change; and water, mineral, and energy resources.
II. PROGRAM DESCRIPTION
The opportunity for rapid progress in this research activity derives largely from the timely coincidence of advances in several disciplines. Global-scale seismic imaging of the Earth's deep interior provides insights into the convective and thermal patterns in the mantle and core. Advances in high pressure materials research allow for direct laboratory investigations of the pressure-temperature-composition and mechanical properties of the deep interior. Isotopic measurements of crustal and mantle-derivative rocks reveal chemical signatures that indicate recycling of the deep interior. Modeling of the Earth's dynamo has illuminated possible relations between convection in the Earth's core and structures in the lowermost mantle. Geodetic techniques have provided new probes of the deep interior. Advances in computational techniques allow complex simulations of flow and convection in the mantle and core. Individually these are all important advances, but the aim of this funding opportunity is to link these advances into coordinated and integrated studies that will allow significant new insights into an understanding of the processes operating in the deep interior and how they govern the evolution of the surface of the Earth.
The 2004 CSEDI Science Plan ( http://www.csedi.org ) outlines a framework for understanding 'Circulation in the Deep Earth' over the coming decade. New technologies available to the community, coupled with unprecedented amounts of observational data call for a bold approach to future CSEDI research. CSEDI can realistically aim for a broad understanding of Earth's inner dynamics, incorporating core evolution, mantle convection, the driving forces of plate tectonics, and the interaction between the interior, oceans and atmosphere. CSEDI provides a framework for capitalizing on the new observational, experimental and theoretical advances made possible by the current development of major seismological, experimental and computational facilities. Within the decade, the field is poised to make major advances in understanding:
Cycling of water and carbon through Earth's deep interior
Operation and evolution of the geomagnetic dynamo
Melting and other phase transitions in the deep mantle and core
Deep mantle structure, temperature and composition
Evolution, dynamics and rotation of the inner core
Chemical and heat exchange between the core and mantle, and between the mantle and the surface.
The 2004 CSEDI Science Plan organized these emerging research directions into three broad themes for advancing understanding of the Earth as a planet, and connecting Earth-interior processes to the surface. First, quantifying the deep water and carbon cycles would provide a crucial link in understanding how the oceans and atmosphere - and the biosphere they sustain - are linked to the interior, helping to clarify how Earth's surface environment has evolved over geological time. Second, characterizing the deep-Earth engine would provide insight into the forces driving geological processes, including mountain building, earthquakes, volcanoes and plate tectonics. Third, understanding the planetary evolution of the Earth, the path it took to the present state, offers unique insights into the ways by which planets in general - and our own in particular - originate and develop.
The above themes are intended to describe the exciting frontiers for deep earth research in a broad sense, and are not intended to be prescriptive in limiting CSEDI proposal topics.
III. AWARD INFORMATION
Anticipated Type of Award: Continuing Grant or Cooperative Agreement or Standard Grant
Estimated Number of Awards: 5 to 10 awards are expected, depending on award amounts
Anticipated Funding Amount: up to $2,000,000 per year, pending availability of funds
IV. ELIGIBILITY INFORMATION
Organization Limit:
Proposals may only be submitted by the following:
Universities and Colleges - Universities and two- and four-year colleges (including community colleges) accredited in, and having a campus located in the US, acting on behalf of their faculty members. Such organizations also are referred to as academic institutions.
Non-profit, non-academic organizations: Independent museums, observatories, research labs, professional societies and similar organizations in the U.S. associated with educational or research activities.
PI Limit:
None Specified
Limit on Number of Proposals per Organization:
None Specified
Limit on Number of Proposals per PI:
None Specified
Additional Eligibility Info:
Colleges and universities designated as Undergraduate or Predominately Undergraduate Institutions should consult the guidelines described in Research in Undergraduate Institutions .
Proposals that have been declined are not eligible for resubmission for one year and must be substantially revised to be considered.
Proposals must involve multidisciplinary groups of scientists at one institution or collaborative efforts of associated researchers from different institutions working on coordinated projects.
V. PROPOSAL PREPARATION AND SUBMISSION INSTRUCTIONS
A. Proposal Preparation Instructions
Full Proposal Preparation Instructions: Proposers may opt to submit proposals in response to this Program Solicitation via Grants.gov or via the NSF FastLane system.
Full proposals submitted via FastLane: Proposals submitted in response to this program solicitation should be prepared and submitted in accordance with the general guidelines contained in the NSF Grant Proposal Guide (GPG). The complete text of the GPG is available electronically on the NSF website at: http://www.nsf.gov/publications/pub_summ.jsp?ods_key=gpg . Paper copies of the GPG may be obtained from the NSF Publications Clearinghouse, telephone (703) 292-7827 or by e-mail from nsfpubs@nsf.gov . Proposers are reminded to identify this program solicitation number in the program solicitation block on the NSF Cover Sheet For Proposal to the National Science Foundation. Compliance with this requirement is critical to determining the relevant proposal processing guidelines. Failure to submit this information may delay processing.
Full proposals submitted via Grants.gov: Proposals submitted in response to this program solicitation via Grants.gov should be prepared and submitted in accordance with the NSF Grants.gov Application Guide: A Guide for the Preparation and Submission of NSF Applications via Grants.gov. The complete text of the NSF Grants.gov Application Guide is available on the Grants.gov website and on the NSF website at: ( http://www.nsf.gov/publications/pub_summ.jsp?ods_key=grantsgovguide ). To obtain copies of the Application Guide and Application Forms Package, click on the Apply tab on the Grants.gov site, then click on the Apply Step 1: Download a Grant Application Package and Application Instructions link and enter the funding opportunity number, (the program solicitation number without the NSF prefix) and press the Download Package button. Paper copies of the Grants.gov Application Guide also may be obtained from the NSF Publications Clearinghouse, telephone (703) 292-7827 or by e-mail from nsfpubs@nsf.gov .
In determining which method to utilize in the electronic preparation and submission of the proposal, please note the following:
Collaborative Proposals. All collaborative proposals submitted as separate submissions from multiple organizations must be submitted via the NSF FastLane system. Chapter II, Section D.4 of the Grant Proposal Guide provides additional information on collaborative proposals.
B. Budgetary Information
Cost Sharing: Inclusion of voluntary committed cost sharing is prohibited
Other Budgetary Limitations:
Requests for scientific instrumentation and equipment included in standard research proposals generally should not exceed $50,000. Requests in excess of this amount usually require a separate proposal directly to the Instrumentation and Facilities Program. Contact the Program Director for further details.
C. Due Dates
Full Proposal Target Date(s):
September 26, 2011
Fourth Monday in September, Annually Thereafter
Contact Program Directors for target date guidance.
D. FastLane/Grants.gov Requirements
For Proposals Submitted Via FastLane:
Detailed technical instructions regarding the technical aspects of preparation and submission via FastLane are available at: https://www.fastlane.nsf.gov/a1/newstan.htm . For FastLane user support, call the FastLane Help Desk at 1-800-673-6188 or e-mail fastlane@nsf.gov . The FastLane Help Desk answers general technical questions related to the use of the FastLane system. Specific questions related to this program solicitation should be referred to the NSF program staff contact(s) listed in Section VIII of this funding opportunity.
Submission of Electronically Signed Cover Sheets. The Authorized Organizational Representative (AOR) must electronically sign the proposal Cover Sheet to submit the required proposal certifications (see Chapter II, Section C of the Grant Proposal Guide for a listing of the certifications). The AOR must provide the required electronic certifications within five working days following the electronic submission of the proposal. Further instructions regarding this process are available on the FastLane Website at: https://www.fastlane.nsf.gov/fastlane.jsp .
For Proposals Submitted Via Grants.gov:
Before using Grants.gov for the first time, each organization must register to create an institutional profile. Once registered, the applicant's organization can then apply for any federal grant on the Grants.gov website. Comprehensive information about using Grants.gov is available on the Grants.gov Applicant Resources webpage: http://www07.grants.gov/applicants/app_help_reso.jsp . In addition, the NSF Grants.gov Application Guide provides additional technical guidance regarding preparation of proposals via Grants.gov. For Grants.gov user support, contact the Grants.gov Contact Center at 1-800-518-4726 or by email: support@grants.gov . The Grants.gov Contact Center answers general technical questions related to the use of Grants.gov. Specific questions related to this program solicitation should be referred to the NSF program staff contact(s) listed in Section VIII of this solicitation.
Submitting the Proposal: Once all documents have been completed, the Authorized Organizational Representative (AOR) must submit the application to Grants.gov and verify the desired funding opportunity and agency to which the application is submitted. The AOR must then sign and submit the application to Grants.gov. The completed application will be transferred to the NSF FastLane system for further processing.
VI. NSF PROPOSAL PROCESSING AND REVIEW PROCEDURES
Proposals received by NSF are assigned to the appropriate NSF program where they will be reviewed if they meet NSF proposal preparation requirements. All proposals are carefully reviewed by a scientist, engineer, or educator serving as an NSF Program Officer, and usually by three to ten other persons outside NSF who are experts in the particular fields represented by the proposal. These reviewers are selected by Program Officers charged with the oversight of the review process. Proposers are invited to suggest names of persons they believe are especially well qualified to review the proposal and/or persons they would prefer not review the proposal. These suggestions may serve as one source in the reviewer selection process at the Program Officer's discretion. Submission of such names, however, is optional. Care is taken to ensure that reviewers have no conflicts of interest with the proposal.
A. NSF Merit Review Criteria
All NSF proposals are evaluated through use of the two National Science Board (NSB)-approved merit review criteria: intellectual merit and the broader impacts of the proposed effort. In some instances, however, NSF will employ additional criteria as required to highlight the specific objectives of certain programs and activities.
The two NSB-approved merit review criteria are listed below. The criteria include considerations that help define them. These considerations are suggestions and not all will apply to any given proposal. While proposers must address both merit review criteria, reviewers will be asked to address only those considerations that are relevant to the proposal being considered and for which the reviewer is qualified to make judgements.
What is the intellectual merit of the proposed activity?
How important is the proposed activity to advancing knowledge and understanding within its own field or across different fields? How well qualified is the proposer (individual or team) to conduct the project? (If appropriate, the reviewer will comment on the quality of the prior work.) To what extent does the proposed activity suggest and explore creative, original, or potentially transformative concepts? How well conceived and organized is the proposed activity? Is there sufficient access to resources?
What are the broader impacts of the proposed activity?
How well does the activity advance discovery and understanding while promoting teaching, training, and learning? How well does the proposed activity broaden the participation of underrepresented groups (e.g., gender, ethnicity, disability, geographic, etc.)? To what extent will it enhance the infrastructure for research and education, such as facilities, instrumentation, networks, and partnerships? Will the results be disseminated broadly to enhance scientific and technological understanding? What may be the benefits of the proposed activity to society?
Mentoring activities provided to postdoctoral researchers supported on the project, as described in a one-page supplementary document, will be evaluated under the Broader Impacts criterion.
NSF staff also will give careful consideration to the following in making funding decisions:
Integration of Research and Education
One of the principal strategies in support of NSF's goals is to foster integration of research and education through the programs, projects, and activities it supports at academic and research institutions. These institutions provide abundant opportunities where individuals may concurrently assume responsibilities as researchers, educators, and students and where all can engage in joint efforts that infuse education with the excitement of discovery and enrich research through the diversity of learning perspectives.
Integrating Diversity into NSF Programs, Projects, and Activities
Broadening opportunities and enabling the participation of all citizens -- women and men, underrepresented minorities, and persons with disabilities -- is essential to the health and vitality of science and engineering. NSF is committed to this principle of diversity and deems it central to the programs, projects, and activities it considers and supports.
Additional Review Criteria:
Additional CSEDI review criteria:
demonstrated synergism among the various disciplinary components involved in the proposed research
likelihood of making accelerated progress on major questions related to understanding the Earth's deep interior.
B. Review and Selection Process
Proposals submitted in response to this program solicitation will be reviewed by Ad hoc Review and/or Panel Review.
Reviewers will be asked to formulate a recommendation to either support or decline each proposal. The Program Officer assigned to manage the proposal's review will consider the advice of reviewers and will formulate a recommendation.
After scientific, technical and programmatic review and consideration of appropriate factors, the NSF Program Officer recommends to the cognizant Division Director whether the proposal should be declined or recommended for award. NSF is striving to be able to tell applicants whether their proposals have been declined or recommended for funding within six months. The time interval begins on the deadline or target date, or receipt date, whichever is later. The interval ends when the Division Director accepts the Program Officer's recommendation.
A summary rating and accompanying narrative will be completed and submitted by each reviewer. In all cases, reviews are treated as confidential documents. Verbatim copies of reviews, excluding the names of the reviewers, are sent to the Principal Investigator/Project Director by the Program Officer. In addition, the proposer will receive an explanation of the decision to award or decline funding.
In all cases, after programmatic approval has been obtained, the proposals recommended for funding will be forwarded to the Division of Grants and Agreements for review of business, financial, and policy implications and the processing and issuance of a grant or other agreement. Proposers are cautioned that only a Grants and Agreements Officer may make commitments, obligations or awards on behalf of NSF or authorize the expenditure of funds. No commitment on the part of NSF should be inferred from technical or budgetary discussions with a NSF Program Officer. A Principal Investigator or organization that makes financial or personnel commitments in the absence of a grant or cooperative agreement signed by the NSF Grants and Agreements Officer does so at their own risk.
VII. AWARD ADMINISTRATION INFORMATION
A. Notification of the Award
Notification of the award is made to the submitting organization by a Grants Officer in the Division of Grants and Agreements. Organizations whose proposals are declined will be advised as promptly as possible by the cognizant NSF Program administering the program. Verbatim copies of reviews, not including the identity of the reviewer, will be provided automatically to the Principal Investigator. (See Section VI.B. for additional information on the review process.)
B. Award Conditions
An NSF award consists of: (1) the award letter, which includes any special provisions applicable to the award and any numbered amendments thereto; (2) the budget, which indicates the amounts, by categories of expense, on which NSF has based its support (or otherwise communicates any specific approvals or disapprovals of proposed expenditures); (3) the proposal referenced in the award letter; (4) the applicable award conditions, such as Grant General Conditions (GC-1); * or Research Terms and Conditions * and (5) any announcement or other NSF issuance that may be incorporated by reference in the award letter. Cooperative agreements also are administered in accordance with NSF Cooperative Agreement Financial and Administrative Terms and Conditions (CA-FATC) and the applicable Programmatic Terms and Conditions. NSF awards are electronically signed by an NSF Grants and Agreements Officer and transmitted electronically to the organization via e-mail.
More comprehensive information on NSF Award Conditions and other important information on the administration of NSF awards is contained in the NSF Award & Administration Guide (AAG) Chapter II, available electronically on the NSF Website at http://www.nsf.gov/publications/pub_summ.jsp?ods_key=aag .
C. Reporting Requirements
For all multi-year grants (including both standard and continuing grants), the Principal Investigator must submit an annual project report to the cognizant Program Officer at least 90 days before the end of the current budget period. (Some programs or awards require more frequent project reports). Within 90 days after expiration of a grant, the PI also is required to submit a final project report, and a project outcomes report for the general public.
Failure to provide the required annual or final project reports, or the project outcomes report will delay NSF review and processing of any future funding increments as well as any pending proposals for that PI. PIs should examine the formats of the required reports in advance to assure availability of required data.
PIs are required to use NSF's electronic project-reporting system, available through FastLane, for preparation and submission of annual and final project reports. Such reports provide information on activities and findings, project participants (individual and organizational) publications; and, other specific products and contributions. PIs will not be required to re-enter information previously provided, either with a proposal or in earlier updates using the electronic system. Submission of the report via FastLane constitutes certification by the PI that the contents of the report are accurate and complete. The project outcomes report must be prepared and submitted using Research.gov. This report serves as a brief summary, prepared specifically for the public, of the nature and outcomes of the project. This report will be posted on the NSF website exactly as it is submitted by the PI.
VIII. AGENCY CONTACTS
Please note that the program contact information is current at the time of publishing. See program website for any updates to the points of contact.
General inquiries regarding this program should be made to:
Robin Reichlin, Program Director, Geophysics, 785 S, telephone: (703) 292-8556, fax: (703) 292-9025, email: rreichli@nsf.gov
Sonia Esperanca, Program Director, Petrology and Geochemistry, 785 S, telephone: (703) 292-8554, email: sesperan@nsf.gov
For questions related to the use of FastLane, contact:
FastLane Help Desk, telephone: 1-800-673-6188; e-mail: fastlane@nsf.gov .
For questions relating to Grants.gov contact:
Grants.gov Contact Center: If the Authorized Organizational Representatives (AOR) has not received a confirmation message from Grants.gov within 48 hours of submission of application, please contact via telephone: 1-800-518-4726; e-mail: support@grants.gov .
IX. OTHER INFORMATION
The NSF Website provides the most comprehensive source of information on NSF Directorates (including contact information), programs and funding opportunities. Use of this Website by potential proposers is strongly encouraged. In addition, National Science Foundation Update is a free e-mail subscription service designed to keep potential proposers and other interested parties apprised of new NSF funding opportunities and publications, important changes in proposal and award policies and procedures, and upcoming NSF Regional Grants Conferences. Subscribers are informed through e-mail when new publications are issued that match their identified interests. Users can subscribe to this service by clicking the "Get NSF Updates by Email" link on the NSF web site .
Grants.gov provides an additional electronic capability to search for Federal government-wide grant opportunities. NSF funding opportunities may be accessed via this new mechanism. Further information on Grants.gov may be obtained at http://www.grants.gov .
ABOUT THE NATIONAL SCIENCE FOUNDATION
The National Science Foundation (NSF) is an independent Federal agency created by the National Science Foundation Act of 1950, as amended (42 USC 1861-75). The Act states the purpose of the NSF is "to promote the progress of science; [and] to advance the national health, prosperity, and welfare by supporting research and education in all fields of science and engineering."
NSF funds research and education in most fields of science and engineering. It does this through grants and cooperative agreements to more than 2,000 colleges, universities, K-12 school systems, businesses, informal science organizations and other research organizations throughout the US. The Foundation accounts for about one-fourth of Federal support to academic institutions for basic research.
NSF receives approximately 40,000 proposals each year for research, education and training projects, of which approximately 11,000 are funded. In addition, the Foundation receives several thousand applications for graduate and postdoctoral fellowships. The agency operates no laboratories itself but does support National Research Centers, user facilities, certain oceanographic vessels and Antarctic research stations. The Foundation also supports cooperative research between universities and industry, US participation in international scientific and engineering efforts, and educational activities at every academic level.
Facilitation Awards for Scientists and Engineers with Disabilities provide funding for special assistance or equipment to enable persons with disabilities to work on NSF-supported projects. See Grant Proposal Guide Chapter II, Section D.2 for instructions regarding preparation of these types of proposals.
The National Science Foundation has Telephonic Device for the Deaf (TDD) and Federal Information Relay Service (FIRS) capabilities that enable individuals with hearing impairments to communicate with the Foundation about NSF programs, employment or general information. TDD may be accessed at (703) 292-5090 and (800) 281-8749, FIRS at (800) 877-8339.
The National Science Foundation Information Center may be reached at (703) 292-5111.
The National Science Foundation promotes and advances scientific progress in the United States by competitively awarding grants and cooperative agreements for research and education in the sciences, mathematics, and engineering.
To get the latest information about program deadlines, to download copies of NSF publications, and to access abstracts of awards, visit the NSF Website at http://www.nsf.gov
Location:
4201 Wilson Blvd. Arlington, VA 22230
For General Information
(NSF Information Center) :
The information requested on proposal forms and project reports is solicited under the authority of the National Science Foundation Act of 1950, as amended. The information on proposal forms will be used in connection with the selection of qualified proposals; and project reports submitted by awardees will be used for program evaluation and reporting within the Executive Branch and to Congress. The information requested may be disclosed to qualified reviewers and staff assistants as part of the proposal review process; to proposer institutions/grantees to provide or obtain data regarding the proposal review process, award decisions, or the administration of awards; to government contractors, experts, volunteers and researchers and educators as necessary to complete assigned work; to other government agencies or other entities needing information regarding applicants or nominees as part of a joint application review process, or in order to coordinate programs or policy; and to another Federal agency, court, or party in a court or Federal administrative proceeding if the government is a party. Information about Principal Investigators may be added to the Reviewer file and used to select potential candidates to serve as peer reviewers or advisory committee members. See Systems of Records, NSF-50 , "Principal Investigator/Proposal File and Associated Records," 69 Federal Register 26410 (May 12, 2004), and NSF-51 , "Reviewer/Proposal File and Associated Records," 69 Federal Register 26410 (May 12, 2004). Submission of the information is voluntary. Failure to provide full and complete information, however, may reduce the possibility of receiving an award.
An agency may not conduct or sponsor, and a person is not required to respond to, an information collection unless it displays a valid Office of Management and Budget (OMB) control number. The OMB control number for this collection is 3145-0058. Public reporting burden for this collection of information is estimated to average 120 hours per response, including the time for reviewing instructions. Send comments regarding the burden estimate and any other aspect of this collection of information, including suggestions for reducing this burden, to:
Suzanne H. Plimpton
Reports Clearance Officer
Division of Administrative Services
National Science Foundation
Arlington, VA 22230
Washington, DC - American Rivers, the nation's leading voice for clean water and healthy rivers, today applauded Senators Tom Udall (D-NM), Sheldon Whitehouse (D-RI) and Ben Cardin (D-MD) and Representatives Donna Edwards (D-MD) and Russ Carnahan (D-MO) for introducing the ‘Green Infrastructure for Clean Water Act of 2011' to the Senate and House, respectively.
This legislation is an important step forward in addressing polluted runoff by prioritizing smart stormwater management strategies that work with the natural landscape to infiltrate and reuse rainwater to protect our clean water supplies and reduce localized flooding. By providing opportunities and establishing mechanisms for communities to pursue green infrastructure solutions, this approach can become a new norm rather than just a best practice.
“Clean water is vital to our health, safety, and quality of life. This bill will help communities nationwide safeguard clean water and healthy rivers,” said Stacey Detwiler, Clean Water Associate at American Rivers.
Green infrastructure provides a 21st century approach to managing polluted runoff that threatens our clean water supplies and the health of our communities. By treating rainwater where it falls, green infrastructure practices filter out contaminants and reduce the volume of stormwater that overwhelms our water infrastructure and pollutes our streams and rivers. Many communities around the country including Toledo, Milwaukee, Philadelphia, New York City and Lenexa, Kansas use green infrastructure as a key component of their strategy to cost effectively achieve clean water.
From green roofs to permeable pavement to cisterns, green infrastructure approaches provide flexible solutions to protect our clean water and save communities money. For example, the city of Portland, Oregon spent $8 million to subsidize downspout disconnections for homeowners, saving the city $250 million in hard infrastructure fixes and keeping one billion gallons of stormwater out of the City's combined sewer system every year. Green infrastructure also provides multiple benefits to communities by saving energy, reducing air pollution and increasing property values.
“By increasing research and development of innovative green infrastructure techniques, promoting the consistent use of green infrastructure within the Environmental Protection Agency, and providing incentive funding to communities to plan, develop, and install green infrastructure technologies, this bill will help revitalize communities nationwide,” said Detwiler. “We applaud Representatives Edwards and Carnahan and Senators Udall, Whitehouse and Cardin for their leadership in protecting the nation's clean water and healthy rivers.”
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American Rivers is the nation's leading voice fighting for clean water and healthy rivers. For almost 40 years we have protected and restored rivers, scoring victories for communities, fish and wildlife, and future generations. American Rivers has offices in Washington, DC and nationwide, and more than 100,000 supporters and volunteers. Visit www.americanrivers.org , www.facebook.com/americanrivers and www.twitter.com/americanrivers .
According to the state supreme court, "[i]t is misconduct... to elicit or attempt to elicit inadmissible evidence... Because we consider the effect of the prosecutor's action on the defendant, a determination of bad faith or wrongful intent by the prosecutor it is not required for a finding of prosecutorial misconduct." ( People v. Crew (2003) 31 Ca) The role of the prosecutor differs significantly from that of others who practice law, including criminal defense lawyers.
" A Prosecutor is held to a standard higher than that imposed on other attorneys because of the unique function he or she performs in representing the interests, and in exercising the sovereign power, of the state. ... the prosecutor represents "a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall 'win a case,' but that justice shall be done." ( Berger v. United States (1935) 295 U.S. 78, 88.)' " ( People v. Hill (1998) 17 Cal.4th 800, 820.)
"Prosecutors have a special obligation to promote justice and the ascertainment of truth. ... 'The duty of the attorney general is not merely that of an advocate. His duty is not to obtain convictions, but to fully and fairly present... the evidence...' " ( People v. Kasim (1997) 56 Cal.App.4th 1360, 1378.) "The prosecutor's job isn't just to win, but to win fairly, staying well within the rules." (United States v. Kojayan (9th Cir. 1993) 8 F.3d 1315, 1323.) "As an officer of the court, the prosecutor has a heavy responsibility... to the court and to the defendant to conduct a fair trial ..." (United States v. Escalante (9th Cir. 1980) 637 F.2d 1197, 1203.) Federal decisions addressing void state court judgments include ( Kalb v. Feuerstein (1940) 308 US 433, 60 S Ct 343, 84 L ed 370; Ex parte Rowland (1882) 104 U.S. 604, 26 L.Ed. 861:) "A judgment which is void upon its face, and which requires only an inspection of the judgment roll to demonstrate its wants of vitality is a dead limb upon the judicial tree, which should be lopped off, if the power to do so exists." ( People v. Greene, 71 Cal. 100 [16 Pac. 197, 5 Am. St. Rep. 448].) "If a court grants relief, which under the circumstances it hasn't any authority to grant, its judgment is to that extent void." (1 Freeman on Judgments, 120-c.) An illegal order is forever void. Decision is void on the face of the judgment roll when from four corners of that roll, it may be determined that at least one of three elements of jurisdiction was absent: (1) jurisdiction over parties, (2) jurisdiction over subject matter, or (3) jurisdictional power to pronounce particular judgment that was rendered, ( B & C Investments, INc. v. F & ; M Nat. Bank & ; Trust , 903 P.2d 339 (Okla. App.Div 3, 1995). "Court must prove on the record, all jurisdiction facts related to the jurisdiction asserted." ( Latana v. Hopper, 102 F. 2d 188; Chicago v. New York 37 F Supp. 150)
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
ABUSE OF DISCRETION : A failure to take into proper consideration the facts and law relating to a particular matter; an Arbitrary or unreasonable departure from precedent and settled judicial custom.
The human condition, which can be ignorance and fallibility -- especially for those in authority, perhaps deceived by their own, as Shakespeare says, "insolence of office" -- is what makes the presumption of innocence a good principle, if it is put into practice, for it is the basis for the protection of the innocent, allowing for the lay citizen to have the protection of the law beyond their own familiarity or understanding of it.
A judge is mandated to report attorneys for misconduct: Cal. Bus. & Prof. Code § 6086.7(a)(2). The State Bar sends out a letter each year reminding judges of the statutory requirements. California Code of Judicial Ethics: Currently, the code directs a judicial officer to "take appropriate corrective action whenever information surfaces that a lawyer has violated ethical duties." ( Cal. Canons of Jud. Ethics, Canon 3D(2).) and, ABA Model Rule 3.8, covers the conduct of prosecutors.
Judges have the option to hold those responsible in prosecutorial misconduct in contempt of court -- and to impose upon them fines, or even temporary imprisonment. "Attorneys should be disciplined for conduct that violates clearly established law, or conduct so outrageous that its illegality is obvious,"
MANUFACTURED JURISDICTION: "the circumstances relied upon to establish federal jurisdiction over the offenses charged were artificially created by the Government in an attempt to exceed the proper scope of federal law enforcement." 501 F.Supp. at 1205.
Neil Barofsky, the special inspector general for TARP says that Treasury Secretary Timothy Geithner is "ultimately responsible"
Some aspects of modern life can harm health and the environment. Environmental justice means that these effects should be shared fairly and that everyone should have the opportunity to participate in making decisions about environmental issues, regardless of race, color, national origin, or income.. Examples include:
Many inner cities still have sewer systems that are not designed to handle storm overflow, so raw sewage can flow into rivers and streams.
Farm workers, 90% of whom are people of color, may face serious health risks from pesticides.
Low income, and quite often culturally diverse populations, are more likely than other groups to live near landfills, incinerators, and hazardous waste treatment facilities.
What should environmental justice look like in your community?
Each week we ask a question related to the environment. Please let us know your thoughts as comments. Feel free to respond to earlier comments or post new ideas. Previous questions.
Each week we ask a question related to the environment. Please let us know your thoughts as comments. Feel free to respond to earlier comments or post new ideas. Previous questions.
Interstate Technology & Regulatory Council (ITRC)
A coalition of state environmental regulators working with federal partners, industry, and stakeholders to advance innovative environmental decision making.
ITRC Governance Document Revised - The ITRC Board of Advisors recently completed revisions to the ITRC Governance Document which outlines the overall structure and bylaws for ITRC. more details...
Environmental Council of the States - ITRC | 50 F Street, NW, Suite 350 | Washington, DC 20001
Phone: 202-266-4932 | Fax: 202-266-4937 | Front Desk: 202-266-4920
This Web site is owned by ITRC.
Joint Public Hearing
Subcommittee on Nutrition and Horticulture, Committee on Agriculture and the subcommittee on Water Resources and Environment, Committee on Transportation and Infrastructure
I have to admit that after 15 years of working at EPA, I still have trouble finding environmental data. Web searches don't help that much so I rely on people like my friend Tim to email me data about hazardous waste. But I shouldn't have to know every database manager to get EPA's data.
It turns out that I'm not the only person with this problem. Last year EPA's Office of Environmental Information hosted the National Dialogue on Access to Environmental Information to learn about the information access needs of our major audiences. We held listening sessions throughout the country and encouraged people to comment using blogs and wikis. From the thousands of comments we received we developed EPA's Information Access Strategy , which describes key themes and a direction for EPA to address these needs. One of the common themes was: we need environmental data, but we don't know where to find it. In response to these comments we've built Data Finder , a single place to find EPA's data sources, so people can access and understand environmental information.
Data Finder points to data sources: EPA-hosted web sites where numerical data can be downloaded. You can find data sources by clicking on key words or by typing terms into a search box. One click brings you to the source itself. By making data EPA information easier to find, understand, and use, Data Finder complements the Obama Administration's commitment to a transparent and participatory government. It helps lay the foundation for more open conduct of Agency business and broader, more effective participation by the public.
I think Data Finder is a good first step for finding EPA's data, but I know it only contains a subset of the data that's out there. Please try Data Finder and tell us what information you'd like to see and how to make the site more useful. We'll post your comments and tell you how we're updating the site in response to your comments. And let's leave Tim out of this.
About the author: Ethan McMahon has worked at EPA since 1994. Most recently he helped develop the Agency's Information Access Strategy and the 40-page Report on the Environment: Highlights Document. Prior to working at EPA he evaluated alternative refrigerants and designed high efficiency heat pumps. Ethan believes that making information available can enable lots of people to find solutions to environmental problems.
All our lives we have been cautioned against trying to fit square pegs into round holes. The metaphor itself is constructed to make such an effort seem foolish and just a bit unsavory: forcing the hard edges of a square into the smooth curves of a circle evokes a certain violence and violation of geometric propriety. And the message behind the saying is clear: don't try to join things that clearly don't belong together.
However, fitting square pegs into round holes is just what we are doing in EPA's Office of Research and Development: we are encouraging new collaborations between scientific disciplines to formulate innovative science questions to address chemical safety. We think this is a very good thing, but it does raise questions.
What, for instance, does cultural anthropology have to do with molecular design? Perhaps nothing; or perhaps quite a bit. A cultural anthropologist would be interested in how a society's institutions shape the tools it creates and how it uses those tools. A chemist or engineer designs a chemical or material object with some intention in mind. (Design implies intent: nobody creates something for no reason). Once designed, how will society use the new chemical or material? Importantly for EPA, will it be used in a way that minimizes impact on, or perhaps even improves, the environment and human well-being? Neither the chemist nor the anthropologist alone can answer these questions. But perhaps the two of them, together with environmental scientists, can. Maybe a fit can be found for a square peg within a round hole.
Finding flex in the square peg/round hole metaphor doesn't mean forcing fits that don't make sense. In EPA's Chemical Safety for Sustainability Research Program, sometimes we will need to just let chemists do their chemistry within their own disciplinary space. However, all the while we can be mindful that sometimes square edges can be rounded off and the walls of circles stretched, and bringing together very different scientific disciplines can lead to the shaping of innovative research questions that take science in new and rewarding directions. Since old ways of working within disciplinary boundaries have not always given us science and technology that has advanced environmental sustainability, perhaps it's time to not take as given old sayings and metaphors, and see if we can't fit a few square pegs into round holes.
About the author: Jeff Morris, PhD is the National Program Director for Nanotechnology in EPA's Office of Research and Development.
Editor's Note: The opinions expressed in Greenversations are those of the author. They do not reflect EPA policy, endorsement, or action, and EPA does not verify the accuracy or science of the contents of the blog.
• Deputy Under Secretary of Defense for Installations and Environment (DUSD/I&E) – Office responsible for oversight and policy guidance for all Department of Defense Installations and Environmental Programs. This includes environmental, safety, and occupational health policies and programs; restoration at active and closing bases; compliance with environmental laws; conservation of natural and cultural resources; pollution prevention, environmental technology, fire protection, and explosives safety.
• Defense Environment Network & Information Exchange (DENIX) – Provides information, communication and collaboration services to Department of Defense environmental personnel, State regulatory and educational environmental offices, the environmental international community, and the general public.
• Defense Technical Information Center — Central facility for searching, displaying, or ordering scientific and technical reports and summaries from DoD.
• Department of Defense Environmental Cleanup – Provides information from DoD's Cleanup Office and Defense Environmental Restoration Program (DERP), which are charged with reducing risks to human health and the environment at active, formerly used, and closing bases and former DoD properties.
• Department of Defense Explosives Safety Board (DDESB) – Provides objective advice to the Secretary of Defense and Service Secretaries on matters concerning explosives safety and prevention of hazardous conditions to life and property on and off Department of Defense installations from the explosives and environmental effects of DoD titled munitions.
• DoD Environmental Security Technology Certification Program – ESTCP's goal is to demonstrate and validate promising, innovative technologies that target the Department of Defense's most urgent environmental needs. These technologies provide a return on investment through cost savings and improved efficiency.
• National Defense Center for Environmental Excellence (NDCEE) – Serves as a national leadership organization to address high priority environmental problems for the Department of Defense, other government organizations, and the industrial community.
• Air Force Center for Engineering & the Environment – Provides Air Force leaders with the comprehensive expertise they need to protect, preserve, restore, develop and sustain our nation's environmental and installation resources
• Edwards Air Force Base Environmental Management – As home of the Air Force Flight Test Center, focuses focuses on helping the flight testers maintain access to the unique physical environment the desert provides for flight testing and other operations, while not upsetting the delicate balance of the desert ecosystem.
• Army Environmental Center (AEC) – Provides central planning, management, coordination, oversight, and technical support to the Army's environmental programs. Develops, executes, and provides management oversight of Army environmental programs in support of ACSIM and Office of the Director Environmental Programs, including restoration of contaminated lands, pollution prevention, technology transfer, reporting and tracking of Army programs, conservation of natural and cultural resources, and compliance with environmental standards and criteria.
• Army Corps of Engineers (USACE) Headquarters – Provides information on USACE's mission, organizational units, and the environmental and other services USACE provides to the military and the public.
• Environmental Division – Cleans up sites contaminated with hazardous waste, radioactive waste, or ordnance and complies with Federal, State, and local environmental laws and regulations.
• Environmental and Munitions Center of Expertise – Provides information and assistance on topics related to environmental remediation and environmental compliance, including innovative technologies, environmental risk assessment, ecological risk assessment, environmental engineering, cost recovery, and military munitions.
• Innovative Technology Program – Provides synopses of applying innovative technologies at a variety of sites, and solving a wide range of contaminant problems. This web site includes the USACE points of contact and their telephone number for each featured site.
• Wetlands Research and Technology Center – Facilitates and coordinates wetlands scientific and engineering work, wetlands training, and interagency coordination efforts and responds to wetlands-related questions from DoD, other Federal, and State agencies as well as from academia, industry, and the general public.
• Naval Facilities Engineering Command (NAVFAC) – Provides timely and effective facilities engineering solutions and push the envelope for innovative, technology-leveraged strategies and alternatives in a variety of areas, including base realighnment and closure and environmental programs.
• Naval Facilities Engineering Service Center (NFESC) – List of services through which the Navy provides customers with professional assitance in solving environmental cleanup, compliance, and pollution prevention problems.
• Navy Environmental Leadership Program (NELP) – Identifies environmental issues affecting Navy and Marine Corps ships, commands or activities, demonstrates and validates innovative technologies and/or processes for addressing these issues, and disseminates Lessons Learned throughout the Naval and Marine Corps communities. NELP activities are carried out by Naval Air Station (NAS) North Island in Coronado , California and Naval Station Mayport, Florida .
• Navy Technology Transfer Page – Highlights technology transfer efforts conducted by the Navy's environmental community and Navy efforts to increase the use of innovative technologies and approaches to reduce environmental cleanup costs.
• Office of Environmental Management (EM) – Office responsible for centralized management of DOE waste management operations, environmental restoration programs and activities, and related applied research and development. EM also provides direction, policy, and management oversight to the DOE Operations Offices at Idaho (ID), Ohio (OH), Rocky Flats (RF), Richland (RL), Savannah River (SR), and the Office of River Protection (ORP) at Richland .
• Data Quality Objectives (DQO) – A systematic procedure for defining the criteria that a data collection design should satisfy, including when to collect samples, where to collect samples, the tolerable level of decision error for the study, and how many samples to collect, balancing risk and cost in an acceptable manner.
• DOE Information Bridge – Provides an open source to full-text and bibliographic records of DOE research and development reports in physics, chemistry, materials, biology, environmental sciences, energy technologies, engineering, computer and information science, renewable energy, and other topics produced by the DOE National Laboratories and grantees since 1995.
• EM Paths to Closure – Web page containing a site-by-site, project-by-project description of the projected technical scope, cost, and schedule required to complete the DOE's remaining cleanup sites in the United States.
• Office of Engineering and Technology – Environmental Management (EM) Office of Engineering and Technology activities identify and advances technologies, processes, and technical practices that improve the performance of environmental management projects over their entire lifecycle, from planning to disposal. These efforts provide the highest level of interdisciplinary engineering consultation, guidance, expertise, and continuity in the organization. It provides DOE with development and implementation of engineering concepts, practices, programs and advance technologies for improvement of design, construction, and system/facilities management activities.
• Office of Site Closure – The Office of Site Closure has consolidated management of all cleanup/operations for seven of the Department of Energy's Office of Environmental Management (EM) field offices. The Office has redirected its program to create a culture of closure with the sole focus of achieving cleanup and closing sites.
• Hazardous Waste Cleanup Information (CLU-IN) – World Wide Web site offering comprehensive information designed to assist hazardous waste cleanup professionals in finding the latest information on innovative hazardous waste treatment technologies, including information on programs, organizations, publications, and access to data bases and other tools for cleanups. CLU-IN users include EPA staff, other Federal and State personnel, consulting engineers, technology vendors, remediation contractors, researchers, community groups, and the public.
• Brownfields Cleanup and Redevelopment – Information on efforts to cleanup and reuse abandoned, idled, or under-used industrial and commercial facilities, known as Brownfield sites, where redevelopment is complicated by real or perceived environmental contamination.
• Dense Nonaqueous Phase Liquids (DNAPLs) – This website compiles available information related to the cleanup of dense nonaqueous-phase liquids (DNAPLs) at hazardous waste sites. The site addresses the most common DNAPL contaminants: chlorinated ethenes (e.g., tetrachloroethene and trichloroethene) and multi-component wastes (creosotes, coal tars, and heavy oils), with an emphasis on source zone cleanup. It provides information about available remediation technologies, such as bioremediation, in situ flushing and oxidation, and thermal processes. U.S. EPA's Office of Superfund Remediation and Technology Innovation plans to add new resources as they become available, and future expansion may include ethers, halogenated alkanes, polychlorinated biphenyls, and other chemicals that form DNAPLs.
• Environmental Technology Verification Program (ETV) – Verifies the performance of innovative technical solutions to problems that threaten human health or the environment. Managed by EPA's Office of Research and Development, ETV was created to substantially accelerate the entrance of new environmental technologies into the domestic and international marketplace. ETV verifies commercial-ready, private sector technologies through 12 programs.
• Federal Facilities Restoration & Reuse Office – Provides links to documents containing comprehensive information on existing and potential treatment technologies for remediation of hazardous waste at Federal facilities.
• Office of Solid Waste and Emergency Response (OSWER) – Responsible for EPA programs to protecting public health and the environment through safely managing waste, preparing for, and preventing chemical and oil spills, accidents and emergencies cleaning up and reusing contaminated property.
• Superfund Innovative Technology Evaluation (SITE) Program – Established by EPA's Office of Solid Waste and Emergency Response and the Office of Research and Development in response to the 1986 Superfund Amendment and Reauthorization Act, which recognized a need for an "Alternative or Innovative Treatment Technology Research and Demonstration Program."
• Training Exchange – Provides a range of training information to EPA, other Federal agency, State, Tribal, and local staff involved in hazardous waste management and remediation.
• Technology Transfer Highlights – Information on technology transfer projects and support from the Agency's National Risk Management Research Laboratory (NRMRL). The laboratory conducts research in a variety of areas, including protection of water quality in public water systems; remediation of contaminated soils, sediments and ground water; and restoration of ecosystems.
• Vendor and Developer Support – Provides technology developers and vendors with tools to help advance technologies through all stages of product development from bench scale to full commercialization. The materials cover a broad range of topics that include business planning, marketing, financing, and technical issues and sources.
• U.S. Fish and Wildlife Service Division of Environmental Quality – The U.S. Fish and Wildlife Service (Service) is the main federal agency dedicated to protecting wildlife and their habitat from pollution's harmful effects, helping to create a healthy world for all living things.
• U.S. Geological Survey Toxic Substances Hydrology Program – Provides objective scientific information to improve characterization and management of contaminated sites, to protect human and environmental health, and to reduce potential future contamination problems.
National Aeronautics and Space Administration (NASA)
• Environmental Management Division – Provides leadership, policy, oversight and coordination for NASA institutional and programmatic environmental issues, including those directed toward advancing environmental stewardship, and ensuring environmental statutory and regulatory compliance.
• NASA Innovative Partnerships Program – Provides online access to a national network of programs, organizations and services sponsored by and affiliated with the IPP at NASA Headquarters and to access opportunities for technology transfer, development and collaboration with NASA.
Selected Technology-Related Research and Partnership Organizations
• Federal Demonstration Partnership (FDP) – A cooperative initiative among Federal agencies and institutional recipients of Federal funds. It was established to increase research productivity by streamlining the administrative process and minimizing the administrative burden on principal investigators while maintaining effective stewardship of Federal funds. FDP members include academic and research institutions, Federal agencies, and professional organizations. Given the ever-increasing Federal regulatory environment and the strain on the relationship between academia and the Federal government, FDP provides a unique forum for dialogue, demonstration, and debate among all the key players.
• Federal Integrated Biotreatment Consortium – Operates under the Strategic Environmental Research and Development Program (SERDP) to develop implementable, cost-effective bioremediation technologies for addressing explosives, high molecular weight polycyclic aromatic hydrocarbons (PAHs), chlorinated solvents, polychlorinated biphenyls (PCBs).
• Interstate Technology & Regulatory Council (ITRC) – A national coalition of State environmental regulatory agencies working with Federal agencies and other stakeholders to improve the acceptance and deployment of innovative environmental technologies. ITRC programs focus on building national/regional partnerships and establishing interstate verification standards and mechanisms that encourage regulators and regulated entities to explore innovative solutions to environmental protection, site restoration, and resource conservation problems.
• National Research Council – The National Research Council (NRC) functions under the auspices of the National Academy of Sciences (NAS), the National Academy of Engineering (NAE), and the Institute of Medicine (IOM). The NAS, NAE, IOM, and NRC are part of a private, nonprofit institution that provides science, technology and health policy advice.
• Sediment Dredging at Superfund Megasites: Assessing the Effectiveness (2007) – This report was produced by the National Research Council (NRC) for the U.S. EPA and evaluates dredging as a cleanup technique. The report finds that, based on a review of available evidence, dredging's ability to decrease environmental and health risks is still an open question. Analysis of pre-dredging and post-dredging at about 20 sites found a wide range of outcomes in terms of surface sediment concentrations of contaminants: some sites showed increases, some no change, and some decreases in concentrations.
• Strategic Environmental Research and Development Program (SERDP) – DoD's corporate environmental research and development program, planned and executed in full partnership with the DOE and U.S. EPA, with participation by numerous other Federal and non-Federal organizations. Within its broad areas of interest, the Program focuses on cleanup, compliance, conservation, and pollution prevention technologies. SERDP identifies, develops, and transitions environmental technologies that relate directly to defense mission accomplishment.
• Superfund Basic Research Program (SBRP) – Focuses on acquiring new scientific and engineering knowledge that advances society's understanding of the human and ecological risks from hazardous substances and the development of new technologies for the cleanup of Superfund sites. Results of SBRP efforts serve as the basis for subsequent basic or applied research in these areas, but also provides a foundation for practical benefits such as lower cleanup costs on hazardous waste sites and improvements in human and ecological health risk assessment.
How Current is This? (a) Criminal Contempt.— In a trial for criminal contempt for violating an injunction or restraining order issued under this chapter, the violation of which is also a violation of this chapter, the defendant may demand a jury trial. The defendant shall be tried as provided in rule 42(b) of the Federal Rules of Criminal Procedure (18 App. U.S.C.). (b) Subpenas For Witnesses.— A subpena for a witness required to attend a district court of the United States in an action brought under this chapter may be served in any judicial district. (c) Review of Agency Action.— Except as provided in section 20104 (c) of this title, a proceeding to review a final action of the Secretary of Transportation under this part or, as applicable to railroad safety, chapter 51 or 57 of this title shall be brought in the appropriate court of appeals as provided in chapter 158 of title 28 .
U.S. EPA awards $200,000 to clean up future site of 52 affordable homes in San Diego 's Diamond Neighborhoods
Part of $3 million invested in revitalization efforts across state
WASHINGTON - The U.S. Environmental Protection Agency has awarded the San Diego, Calif., based Jacobs Center for Neighborhood Innovation a $200,000 Brownfields cleanup grant which will be used to transform the pesticide and lead contaminated Trolley Residential site into the future home of 52 units of affordable housing at The Village at Market Creek.
“This funding will rid the soils of contamination at this site, the first step in the construction of green, affordable rental homes,” said Jared Blumenfeld, EPA's Regional Administrator for the Pacific Southwest. “We are pleased to collaborate with the Jacobs Center and the San Diego Redevelopment Agency in their efforts to revitalize the Diamond Neighborhoods. The results will prove that a cleaner environment can sustain a healthier community, bringing new opportunities and new jobs.”
Southeastern San Diego suffers from a severe lack of affordable housing. The 52 new homes will not only be constructed near public transportation lines but will meet LEED-Silver certification criteria including green building materials, water conservation utilities, solar power and drought resistant landscaping.
Last year, EPA awarded the nonprofit Jacobs Center for Neighborhood Innovation a $175,000 planning grant as one of the 23 nationwide Brownfields Area-Wide Planning Pilot Program recipients. This grant also supports The Village at Market Creek, a future sustainable community emerging in the Diamond Neighborhoods, an underserved, brownfields-impacted area in the center of an economically distressed, highly diverse community of 84,300 residents located in southeastern San Diego .
Centered around a major transit hub, The Village will eventually transform over 60 acres of blighted land into productive use, replace substandard housing with approximately1,000 quality affordable homes, and restore nearly 5,500 linear feet of wetlands. Over 1.6 million square feet of new construction will bring more than $300 million in contracts to the community, attracting over 250 new businesses and creating 2,000 jobs.
Today's award is part of the nationwide funding of over $76 million in brownfields grants to communities in 40 states and 3 tribes. The funding will be used to investigate and clean up brownfields properties, including abandoned gas stations, old textile mills, closed smelters, and other abandoned industrial and commercial properties.
The brownfields program encourages redevelopment of America 's estimated 450,000 abandoned and contaminated waste sites. As of March 2011, EPA's brownfields assistance has leveraged more than $16.3 billion in cleanup and redevelopment funding, and 68,900 jobs in cleanup, construction, and redevelopment. These investments and jobs target local, under-served and economically disadvantaged neighborhoods – places where environmental cleanups and new jobs are most needed. Cleaning up our communities is one of EPA Administrator Lisa P. Jackson's priorities, which leads not only to health and environmental benefits but also economic development and prosperity.
Since the beginning of the brownfields program in 1995, EPA has awarded 1,895 assessment grants totaling $447.6 million, 279 revolving loan fund grants totaling more than $273.1 million, and 752 cleanup grants totaling $140.8 million.
The $3,000, 000 awarded to California will be distributed as follows: Brea Redevelopment Agency, $1,000,000; Los Angeles Community Redevelopment Agency, $200,000; Los Angeles , Communitywide Assessment, $400,000, Fresno Redevelopment Agency, $400,000, East Palo Alto Redevelopment Agency, $200,000; Mt. Shasta , Communitywide Assessment, $400,000.
The EPA Clean Air Excellence Award recognizes the work of the county's air pollution control district in diverting Lake Tahoe area forest debris from burn piles.
"By transporting this forest residue out and instead of burning it in burn piles we are reducing pollution put into the atmosphere," said Supervisor Jim Holmes, who is in Washington, D.C., to accept the award.
Removing the wood scraps from the forest floor also reduces the risk of a catastrophic wildfire. The biomass is transported out of the basin, but officials are considering building a 1- to 3-megawatt biomass plant to turn the slash into energy. Locating the plant has proved more controversial.
The EPA award is in its twelfth year.
"EPA's history is marked by innovations that have made our communities cleaner, healthier and more prosperous. This year's Clean Air Excellence Award winners are continuing that tradition," EPA Administrator Lisa Jackson said.
Among the 12 recipients were Pacific Gas and Electric Co. for innovations in electric vehicle charging stations and the Santa Monica-based California Cartage Company for its fleet of liquefied natural gas "green trucks" in use at port facilities.
Today's subcommittee hearing is the third in a series of hearings designed to prop up the Obama EPA's aggressive regulatory regime. This hearing nominally focuses on air quality and children's health. But there is no question that we all support clean air and that we all care for the well-being of children.
Taken at face value, one might assume the Obama EPA has only the public good in mind. But the truth about Obama's regulatory agenda is inescapable: it's designed make the energy we use more expensive. But don't take my word for it. The Energy Secretary Stephen Chu said in 2008, “[s]omehow we have to figure out how to boost the price of gasoline to the levels in Europe ” and don't forget that the President himself stated that under his cap-and-trade plan “electricity prices would necessarily skyrocket.”
Advocates for this agenda hope that strict regulations can be used to choke off traditional, American energy so that prices will increase to the point that “green” energy is the only alternative. But these green subsidies are undermining the economy and hurting working families.
Over the past two years, EPA has moved forward with an unprecedented number of rules that will have enormous consequences for families, businesses , and the nation's fiscal well-being. Known as the “EPA train wreck,” this regulatory agenda is driving energy costs up, and hitting those who can least afford it-the working poor, the elderly, and veterans-the hardest.
Take for example, EPA's new greenhouse gas (GHG) cap and trade regulations. EPA admits they will have no impact on global temperatures, yet they will come at an estimated cost of $300 to $400 billion annually. The Agency's voluntary reconsideration of the national ambient air quality standards for ground-level ozone - a decision based on outdated data that could lead to significant economic constraints on the country - is another Agency action of dubious merit. EPA projects the cost of this rule could rise to $90 billion. Meanwhile, the agency is planning to tighten the standards again in just two years.
The EPA is also aggressively moving forward with standards to reduce hazardous air emissions from industrial boilers, cement manufacturers and from electric power generators. Now, reducing hazardous emissions is a goal that we all support. But alarmingly, the benefits the EPA associates with the rules come almost entirely from reducing particulate matter (PM) - not the hazardous emissions. So here we have the Agency justifying new mandates that will cost thousands of jobs on PM benefits - even though we already have a specific program designed to address PM directly, the national ambient air quality standard for PM.
Recently, I called for this Committee to fulfill its oversight responsibilities and hold hearings on EPA's “train wreck” regulations. Yet, we are having a hearing next week whose title, ominously, resembles that of today's. Chairwoman Boxer, in the coming weeks I look forward to working with you on additional oversight hearings where we can begin to take a detailed look at the Obama EPA's aggressive regulatory agenda.
No Second Guessing EPA: CERCLA Citizen Suit Cannot Interfere With Ongoing Cleanup
When I was a kid one of my favorite shows was a cartoon about a space-age family that tooled around in a flying, spaceship-like car. Cool. “I hope we have that when I'm a dad,” I thought.
While my mode of transportation is earthbound, some of the show's futuristic gadgets have actually come to pass: I call home with a pocket-sized phone, video conferencing is here, and many of us spend our workdays surrounded by banks of computer screens—even if we don't make sprockets.
I recently got another glimpse of our emerging high-tech future when EPA joined its research partners from the National Institutes of Environmental Health Sciences (NIEHS) National Toxicology Program, the National Institute of Health (NIH) Chemical Genomics Center , the Food and Drug Administration (FDA), and others to unveil a high-speed robot screening system. The robots are set up to test chemicals for their potential to trigger health problems.
The system consists of robot arms that continually move rectangle “plates” through the toxicity testing process. Each plate contains 1536 small wells that can hold a dab of chemical solution and cells (human and non-human animal), and the arm precisely moves each plate though exposure testing and computer analysis. Take a look at this video to see it in action.
The robot system, housed at the National Institutes of Health Chemical Genomics Center (NCGC) in Rockville , Maryland , was purchased as part of the Tox21 collaboration between the EPA, NIEH's National Toxicology Program, NCGC, and FDA. Tox21 merges existing resources—research, funding and testing tools—to develop ways to more effectively predict how chemicals will affect human health and the environment.
Tox21 partners have already screened more than 2,500 chemicals for potential toxicity using robots and other innovative chemical screening technologies, such as ToxCast. EPA tapped such technologies to test oil dispersants for potential endocrine disrupting activity following the BP spill in the Gulf of Mexico last year.
The 10,000 chemicals the robot system will screen include those found in industrial and consumer products, food additives, and drugs. Testing results will provide information useful for evaluating if these chemicals have the potential to disrupt human body processes enough to lead to adverse health effects.
While I'm still looking forward to my first flying car, knowing the future should contain fewer potentially harmful chemicals is pretty exciting, too. Especially now that I'm a dad.
About the author: Aaron Ferster is the editor of Science Wednesday and a frequent contributor.
Expanding the Conversation on Environmentalism and Working for Environmental Justice: We have begun a new era of outreach and protection for communities historically underrepresented in EPA decision-making. We are building strong working relationships with tribes, communities of color, economically distressed cities and towns, young people and others, but this is just a start. We must include environmental justice principles in all of our decisions. This is an area that calls for innovation and bold thinking, and I am challenging all of our employees to bring vision and creativity to our programs. The protection of vulnerable subpopulations is a top priority, especially with regard to children. Our revitalized Children's Health Office is bringing a new energy to safeguarding children through all of our enforcement efforts. We will ensure that children's health protection continues to guide the path forward.
Building Strong State and Tribal Partnerships : States and tribal nations bear important responsibilities for the day-to-day mission of environmental protection, but declining tax revenues and fiscal challenges are pressuring state agencies and tribal governments to do more with fewer resources. Strong partnerships and accountability are more important than ever. EPA must do its part to support state and tribal capacity and, through strengthened oversight, ensure that programs are consistently delivered nationwide. Where appropriate, we will use our own expertise and capacity to bolster state and tribal efforts.
We will also focus on improving EPA's internal operations, from performance measures to agency processes.
We operate a small summer law clerk program. For our summer 2011 program, we expect to invite up to four second year law students to participate in our 10-week program. Our summer law clerk program generally begins in late May or early June.
If our budget does not allow us to provide paid clerkships, we may ask students to come as volunteers, in which case they may wish to defray costs by seeking grants from their law schools. If the budget permits, paid clerkships will be offered at a rate of GS-9 Step 1 for law students entering their third year. (Visit Office of Personnel Management for the most current federal locality pay table for the San Jose/San Francisco area) .
Summer law clerk applications (cover letter, resume, legal writing sample and law school transcript, if available) should be submitted by October 15, 2010. Interviews will be conducted by telephone in November and it is expected that final decisions will be made in December 2010. A writing sample will be requested prior to all interviews.
If you have questions, please contact John Lyons (lyons.john@epa.gov) at (415) 972-3889.
Application Process
Law students should e-mail or send their resumes to: John Lyons (lyons.john@epa.gov).
Applicants should mail their resumes to:
John Lyons
Law Clerk Coordinator (ORC-3)
Office of Regional Counsel
U.S. Environmental Protection Agency
75 Hawthorne Street
San Francisco, California 94105
Note: e-mail submissions should include "Summer Law Clerk Application" in the subject line of the message. Documents may be attached in Word, WordPerfect, or PDF formats.
Interns
During the school year, we accept law students as volunteer interns receiving credit in connection with a clinical program. If you have questions, please contact John Lyons (lyons.john@epa.gov), Assistant Regional Counsel at (415) 972-3889.
EPA is an equal opportunity employer. Selection for any position will be based solely on merit without regard to race, color, religion, age, gender, national origin, political affiliation, disability, sexual orientation, marital or family status or other differences.
EPA provides reasonable accommodations to applicants with disabilities. If you need a reasonable accommodation for any part of the application and hiring process, please notify the Agency. The decision on granting reasonable accommodation will be made on a case-by-case basis.
national origin, sex, sexual orientation, handicap, marital status or political affiliation. If you have any other inquiries regarding employment opportunities, please contact our HR Office at (415) 972-3817.
Every American wants their air and water to be clean and the land where they live, work, play and learn to be free of pollution. But President Obama knows that these cleaner, healthier communities are also better places to buy a home or start a business – boosting local economies and creating jobs often in areas where they're needed most. That's why this Administration is investing in clean, green, sustainable communities that will help us win the future.
Since EPA's brownfields program began less than a decade ago, it has spurred almost 70,000 American jobs. To build on this record of success, I'm in Lansing, Michigan today where I'm announcing $76 million in clean-up grants that will be used for projects throughout the nation.
With the help of local workers, we'll turn tainted factories, deserted gas stations, closed smelters and some of the more than 450,000 other abandoned or contaminated sites throughout America into vibrant residential and retail districts filled with opportunities for American workers.
I chose Lansing to make this announcement because of the progress they've seen thanks to EPA and local funding that has helped to revitalize a distressed community. In recent years, a troubled auto industry put many Lansing residents out of work, while leaving in its wake vacant and often contaminated lots. But the community rallied back, and with the help of a $2 million brownfields grant, they leveraged about $230 million in private investments. Today they're receiving additional funding to continue expanding their success.
We'll soon see stories like this one unfold throughout the nation with the help of the funding being awarded today. Like in Chicago, where 575 children will benefit from a new school being built in a disadvantaged neighborhood where a vacant industrial property now lies. Or like in Nassau County, New York, where a park, hotel, affordable housing, and restaurant and retail space will be built on top of unused waterfront property – creating more than 7,700 local jobs. Eight-hundred more jobs will be created in Milwaukee, where a modern business park will replace a contaminated site that's threatening the health of locals. And in Springfield, Missouri, a clean-up grant will transform a former rail yard into parks and leverage $6 million in private investments.
In reinvigorating these abandoned and often polluted sites – and hundreds of others across our country – we'll improve our health at the same time that we strengthen our economy. These cleaner, healthier and more prosperous communities will also be more resilient and sustainable for our future.
Iron Mountain Pirates - Judges David Levy & John Mendez ......Bnei Ravrevaya. The raiser shall cease evils and wickedness, for thy commit falsehood, ...
12:8 He left from there to the mountain on the east of Beit'el, and pitched his tent ...... 6:2 Nasraya text: "b'nai ravravaya"; Onqelos: "b'nai ravrevaya"; ...
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The COURT shall attach to the petition, as exhibits, copies of the order, report, or decision of the agency. The clerk shall serve a true copy of the petition on the agency and on the Attorney General by registered mail, with request for a return receipt.
This week, the Ninth Circuit ruled that the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) does not give a federal district court jurisdiction to adjudicate claims for past noncompliance with an order issued by the Environmental Protection Agency (EPA). The decision, Pakootas v. Teck Cominco Metals, Ltd ., affirms that CERCLA's citizen suit provision cannot be used to second guess an ongoing CERCLA cleanup action.
From 1905 to 1995, slag from defendant Teck Cominco Metals Limited's (Teck Cominco) smelter located in British Columbia was dumped into the Columbia River, ten miles north of the border with Washington . The pollution flowed downstream from Canada into the United States . In 1999, parties petitioned EPA to investigate the environmental contamination in the Columbia River and Lake Roosevelt . In 2003, EPA determined that the site was eligible for inclusion on CERCLA's so-called “Superfund List” as a top priority for cleanup.
Because no agreement was reached between EPA and Teck Cominco to cleanup the site, in December 2003, EPA issued a unilateral administrative order commanding Teck Cominco to conduct a remedial investigation and feasibility study to assess the site conditions and to implement a cleanup. Teck Cominco did not comply with the order and EPA took no action to enforce it. Various parties (Plaintiffs) brought a citizen suit under CERCLA seeking to enforce the order and for penalties for Teck Cominco's noncompliance with the order. While that action was pending, in June 2006, EPA and Teck Cominco reached a settlement in which Teck Cominco agreed to perform the cleanup in exchange for EPA agreeing not to sue Teck Cominco for penalties or injunctive relief for noncompliance with the unilateral administrative order. EPA withdrew the order and took no action to collect penalties against Teck Cominco for its two and half years of noncompliance with the order. The Plaintiffs amended their complaint to seek only penalties for Teck Cominco's past noncompliance with the order.
The Ninth Circuit affirmed the lower court's finding that CERCLA, 42 U.S.C. § 9613(h) barred the Plaintiffs' challenge. The court found that the statute strips the court of jurisdiction to review challenges to ongoing CERCLA cleanup actions because “Congress made a choice to protect the execution of a CERCLA plan during its pendency from lawsuits that might interfere with an expeditious cleanup effort.” The court rejected the Plaintiffs' contention that because they only sought past penalties, and not additional requirements for the cleanup, the action was not a challenge.
The court noted that EPA and Teck Cominco made a deal to accomplish the cleanup, which included EPA's agreement to not seek penalties for Teck Cominco's past noncompliance. EPA, and not the Plaintiffs, has the right to seek penalties if Teck Cominco does not comply with the settlement agreement. The court was also concerned that the imposition of penalties may interfere with Teck Cominco's ability to pay for the cleanup. In this respect, the action would pose a challenge to the ongoing cleanup effort.
This ruling helps bring more certainty to parties entering into agreements with EPA to cleanup contaminated properties. Had the Ninth Circuit allowed the challenge to proceed, parties would be faced with the possibility that even though they have settled with EPA for past violations in exchange for cleaning up the site, they still may be subject to penalties for past noncompliance. This certainty should help further encourage settlement with EPA.
The views expressed in this document are solely the views of the author and not Martindale-Hubbell. This document is intended for informational purposes only and is not legal advice or a substitute for consultation with a licensed legal professional in a particular case or circumstance.
It is hard to make sense of many grants the U.S. gives to nations from whom it is simultaneously borrowing. The federal government's profligate spending through grant programs is starting to get some notice—for example, on Fox News as well as The Foundry .
For example, the Environmental Protection Agency (EPA) has provided a grant to the United Nations Environmental Program so it may help implement “Russia's National Plan of Action for Protection of the Arctic Marine Environment from Anthropogenic Pollution.” With yet another grant, EPA is helping Interpol (the International Criminal Police Organization) police carbon trading markets which, apparently, has not been going so well.
In January, European carbon trading “ ground to a halt ” after the computer-based theft of more than $70 million in allowances. Carbon trading is ostensibly designed to save humanity from catastrophic global warming. In truth, it is a way to impose a tax on energy without admitting it. Under the scheme, those who emit carbon dioxide (CO 2 ) have to buy allowances (permits) to do so from others. Government issues the permits and therefore controls the supply. The fewer it issues or the more it eventually withdraws from the “market,” they more they cost. The more the permits cost, the less people can afford to emit CO 2 .
CO 2 is the byproduct of producing energy from fossil fuels—oil, coal and natural gas. These energy sources are among the most affordable and reliable and therefore heavily used. Trading—really, taxing—CO 2 increases the price of these energy sources. Energy, which physicists define as “the capacity to do work,” is at the root of the economy. It powers machines used to gather food, fiber, and minerals and to convert these natural resources to usable goods. It fuels the Internet, over which orders for goods are placed, and the trains, planes, ships, and trucks that ferry them to end users. When you increase the amount of work you do—when you are more productive—you foster economic growth that creates jobs and prosperity. Doing this requires energy. When we tax energy, we make it more expensive to do anything productive and stifle economic growth. Euphemistically, the greens call this “sustainable development.” The reality is that “sustainable development” is code for less: less energy, less productivity, less economic growth, and fewer jobs.
This economic reality has blocked the left from legislatively imposing a carbon-trading regime here in the United States , even though its advocates were in a majority that controlled both houses of Congress with a sympathetic President. The President said he would make it so expensive for people to build new coal-fired power plants that it would bankrupt them. Heritage analysis found one carbon-trading legislative proposal would, for some years, lead to job losses exceeding 2.5 million. This kind of brutal economic impact forced the left to switch to plan B. The Administration is now attempting to limit CO 2 through Environmental Protection Agency (EPA) regulation under the Clean Air Act.
In its regulatory ramblings , EPA has hinted that it may have the ability to simply conjure up such a carbon-trading scheme here in the United States . And EPA may not be just rattling its carbon-trading saber at the American economy. According to a database of grants distributed by the agency, in October of last year EPA awarded a grant to Interpol. While modest, some $150,000, it is not the amount of the grant that is interesting but one of its curious purposes. EPA reports :
The major work to be accomplished will be the development of a program website, support of a climate change project which will ensure that markets operate properly, and that fraud is detected promptly with regard to carbon trading…
We are giving money to Interpol to police carbon trading? Do the embarrassments of the European scheme need to be cleaned up to pave the way? Are we so flush with cash that this makes any sense? Make no mistake, EPA is ever so serious about imposing its worldview upon the nation—and it is not despite the economic consequences, but because these costs are integral to its mantra of sustainable development. Perhaps we should rename this bureaucracy the Employment Prevention Agency.
Pollution from 1-5 farms targeted in lawsuit threat
Growers along I-5 have made progress in cleanup, but new ruling upsets fishers, environmentalists
Recalling one of the nation's worst wildlife disasters, a coalition of environmentalists and fishing groups said Tuesday it would sue to clean up toxic farm runoff that makes its way into San Francisco Bay .
The lawsuit threat affects about 100,000 acres of farmland along Interstate 5 that contain high levels of salt and selenium, an element that was blamed for widespread deformities and deaths among birds at the Kesterson National Wildlife Refuge in the early 1980s.
After that disaster, farmers who drained their runoff to the refuge could no longer do so and tests showed high selenium and salt levels in an area immediately to the north known as Grasslands.
It is the hundreds of farmers in the Grasslands area who could be affected by the threatened lawsuit.
Although they have dramatically reduced polluted discharges, the farmers in the fall were given another 10 years to meet water quality requirements put in place by state regulators more than a decade ago.
"They've done a lot, but what they've done is take the low-hanging fruit," said Bill Jennings, executive director of the California Sportfishing Protection Alliance. "Now, they're up against an incredibly difficult problem. We can't just look the other way and pretend the problem doesn't exist."
The notice is the latest in an escalating series of lawsuits, legislative maneuvers and public relations efforts in the battle over limited water supplies in the Delta.
addition to Jennings ' group, the threat to sue was filed by the environmental group Friends of the River and two associations that represent commercial fishers, the Pacific Coast Federation of Fishermens Associations and the San Francisco Crab Boat Owners Association.
Grasslands' farmers have reduced selenium pollution by 87 percent and salt pollution by 70 percent since the mid 1990s, said Joe McGahan, the drainage coordinator for the Grasslands Bypass Project.
Asked if a successful lawsuit could put farmers out of business, McGahan said, "Why would you do something like that to the most successful agricultural drainage project in California ?"
Farm runoff pollution was slashed by using far less water, which reduces the amount of selenium and salt that leaches out of the ground, and by reusing drain water to irrigate salt-tolerant grasses, McGahan said.
A $15 million pilot treatment plant should be built in the coming years to test the ability to clean up the rest of the drain water, McGahan said.
But Jennings said it is highly unlikely the drain water can be cleaned up at an acceptable price.
To the farmers' critics, some of the land in the San Joaquin Valley was never suitable for irrigated agriculture because of drainage problems caused by the area's geology and the presence of potentially toxic elements like selenium and arsenic, as well as high salt content.
The high water demand from the Delta and the return of polluted discharges affects not only wildlife, but commercial fishers, said Larry Collins, president of the San Francisco Crab Boat Owners Association.
"If you retired that land, you'd do two things: You'd lessen the amount of selenium and you'd have more water going into the bay," Collins said. "It's hard living downstream from those guys."
Commercial fishing representatives have been increasingly frustrated by San Joaquin Valley farmers' complaints that environmental regulations are preventing them from growing crops. The fishers say farmers' demand for water drove down salmon numbers and prevented commercial anglers from working in 2008, 2009 and most of 2010.
Because state regulators gave the Grasslands farmers another 10 years to meet water quality standards, the lawsuit seeks to shift oversight to federal regulators by filing the lawsuit under the federal Clean Water Act. That law generally exempts farm runoff, but the groups filing the threat say that Grasslands does not fit that exemption because it also discharges tainted groundwater.
GSA Awards Key Network Infrastructure Task Order for DHS Headquarters Consolidation Project at St. Elizabeths Campus
DHS Technology Integration Program moves agency closer to “One DHS” mission
to protect and serve the American people.
GSA# 10800
June 7, 2011
Sara Merriam, 202-525-8165
sara.merriam@gsa.gov
WASHINGTON – The U.S. General Services Administration, on behalf of the Department of Homeland Security, today awarded a seven-year task order to General Dynamics to develop an integrated network infrastructure for the consolidated Department of Homeland Security headquarters at the St. Elizabeths campus in Southeast Washington . The award helps ensure that DHS's Technology Integration Program, or TIP, is developed in concert with construction of the campus, which will bring together 22 DHS agencies in one central location.
“The DHS St. Elizabeths campus will be a showcase for the value of integrating technology, people, and processes in a consolidated environment that will truly help DHS achieve its critical mission to protect the nation's security," GSA Administrator Martha N. Johnson said. "All of GSA is partnering with DHS to create a model campus that is green, energy-efficient, and secure, with an integrated technology backbone that can accommodate IT, physical security, and smart building networks for the agency well into the future."
GSA's Federal Systems Integration and Management Center awarded the task order as part of the Alliant governmentwide acquisition contract. The task order has a ceiling of $867 million if all options are exercised. FEDSIM will continue to provide project, acquisition, and financial management support to DHS throughout the duration of the project.
“The work accomplished through the DHS TIP is critical to the success of the Department of Homeland Security and our consolidation efforts,” said Richard Spires, DHS Chief Information Officer. “The culture of trust and partnership with DHS, GSA, and General Dynamics will be vital to the alignment needed to support our critical information technology efforts.”
The project scope covers design, procurement, configuration, installation, testing, securing, and maintaining an integrated network infrastructure to transport all DHS voice, video, and data across the consolidated DHS headquarters campus.
“The DHS TIP project at St. Elizabeths is yet another DHS project that uses the acquisition and project management expertise that FEDSIM brings to the table on behalf of federal agencies,” said FAS Commissioner Steven J. Kempf. “For many years, FEDSIM has served as trusted adviser to DHS, using GSA's expertise to carry out mission-critical technology integration procurements. This is what the FEDSIM team does best, and our long-standing relationship with DHS is a testament to that.”
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As the federal government's workplace solutions provider, the U.S. General Services Administration works to foster an effective, sustainable and transparent government for the American people. GSA's expertise in government workplace solutions include:
• Effective management of government assets including more than 9,600 government-owned or leased buildings and 215,000 vehicles in the federal fleet, and preservation of historic federal properties;
• Leveraging the government's buying power through responsible acquisition of products and services making up approximately 14 percent of the government's total procurement dollars;
• Providing innovative technology solutions to enhance government efficiency and increase citizen engagement; and,
• Promoting responsible use of federal resources through development of governmentwide policies ranging from federal travel to property and management practices.
On May 20, three briefs were filed with the Washington DC Circuit Court of Appeals laying out petitions to challenge the Environmental Protection Agency's (EPA) regulatory initiatives concerning greenhouse gas emissions (and how the initiatives came to be). Of the three petitions, two were from a conglomerate of states led by Texas and Virginia, and the other was by a 80-odd member grouping on non-state parties with a variety of interests in the EPA's regulations. A fourth brief from a collection of climate scientists followed week later.
By and large, most of the arguments laid out by these Petitioners echo previous arguments made directly to the EPA during the various public comment opportunities as the EPA was considering whether or not greenhouse gases endangered public health and welfare—a finding which would then require the EPA to develop regulations to restrict the emissions of greenhouse gases. Despite copious cogent arguments as to why the EPA should not find that greenhouse gases engager the public health and welfare, the EPA not only made such a finding, but subsequently denied all petitions to reconsider its findings that were submitted as revelations of scientific misconduct came to light with the release of the Climategate emails.
But, when dealing with the EPA, their decision in not necessary the final one. In fact, there is another avenue of redress—the courts.
The EPA must work under the directives given to it by Congress which are a matter of law. As such, the EPA's interpretations of those laws can be challenged in courts. In fact, the Clean Air Act (the authority under which EPA is acting to restrict greenhouse gas emissions) explicitly states that the Washington DC Court of Appeals has exclusive jurisdiction over final action taken by the EPA's Administrator.
Taking a federal agency involved in technical matters (as is EPA) to court isn't so easy. The principal of “Chevron Deference” established by the Supreme Court in 1984 states that the courts should be loathe to direct the applications of statutes by such agencies because, it is assumed, the agencies possess expertise that the courts do not. This is one reason why Massachusetts v. EPA , the 2007 Supreme Court case in which directed EPA to limit carbon dioxide emissions via the Clean Air Act (if they found and “endangerment”) was viewed as a breathtaking and bold reversal of established jurisprudence in the name of environmental micromanagement of a technical agency.
At any rate, after repeatedly falling on deaf ears at the EPA, and with Administrator Jackson issuing her final action on the matter, many of the challengers to greenhouse gas regulations have taken the EPA to court, with claims that the EPA did not properly and/or adequately justify either its Endangerment Finding, that it improperly denied petitions to reconsider that finding, and that its violated a host of procedures under which the Clean Air Act required the EPA to act when making such a finding (and when crafting regulations).
Browsing the Petitions, the case made against the EPA on each of the above considerations seems strong and the apparent EPA shenanigans are astounding. We encourage our readers to look through the various Petitions for more detail concerning the arguments forwarded. Below we provide links, and a few summaries from the various Petitions.
OPENING BRIEF FOR STATE PETITIONERS TEXAS AND VIRGINIA ON DENIAL OF RECONSIDERATION OF THE ENDANGERMENT FINDING AND OF STATE PETITIONERS AND SUPPORTING STATE INTERVENORS ON ENDANGERMENT FINDING DELEGATION ISSUES
(full brief available here )
Outline of Argument
A. The [EPA] Administrator was obligated to grant reconsideration because Petitioners demonstrated that their timely objections were based on evidence of central relevance to the outcome of the endangerment finding
B. The Administrator erroneously applied the central relevance standard
C. The Administrator erred by making determinations without notice or comment
D. EPA impermissibly delegated its statutory authority to outside entities
E. EPA‘s reasons for relying on the IPCC were undermined by the Climategate data provided in the reconsideration petitions which data compel the conclusion that the Endangerment Finding fails to meet essential Information Quality standards such that reconsideration is required.
BRIEF OF TEXAS FOR STATE PETITIONERS AND SUPPORTING INTERVENORS
(full brief available here )
EPA's Endangerment Finding suffers from numerous flaws, but State Petitioners will address only two of the most significant problems. First, the arbitrary-and-capricious standard requires an agency to “articulate a satisfactory explanation for its action,” see State Farm , 463 U.S. at 43, and the Endangerment Finding fails this test because EPA never bothered to define or apply standards or criteria for assessing when GHG emissions or climate change harm public health or welfare. In addition, the arbitrary-and-capricious test precludes agency actions that “entirely fail[] to consider an important aspect of the problem,” id., and EPA's Endangerment Finding refuses to consider voluntary (nonregulatory) adaptation to and mitigation of climate change, even as EPA acknowledges that these factors will reduce the negative impact of climate change. Each of these grounds warrants vacatur and remand.
JOINT OPENING BRIEF OF NON-STATE PETITIONERS AND SUPPORTING INTERVENORS
(full brief available here )
The suite of rules challenged in these coordinated cases involves what is assuredly the most burdensome, costly, precedent-setting, and far-reaching set of regulations ever adopted by the U.S. Environmental Protection Agency. EPA's Endangerment Rule, challenged here, is the cornerstone of EPA's decision to regulate a new category of emissions under the Clean Air Act [CAA]. As demonstrated below, the Rule is the product of serious legal, evidentiary, and procedural errors. These errors can fairly be said to reflect EPA's rush to judgment and its decision to disregard statutory text, settled rules of construction, and the specific terms of the Supreme Court's decision and remand in Massachusetts v. EPA , 549 U.S. 497 (2007). The errors are further reflected in the Agency's remarkable and implausible contention that the Act must be read to compel a chain reaction of multiple rules leading to what it frankly concedes are “absurd” results, contrary to Congress's intent.
Many errors infecting EPA's final rule stem from a fundamental misreading and misapplication of CAA Section 202(a)(1). Section 202(a)(1) requires EPA, in addressing endangerment, to make a determination that informs and directly ties to the need for, and contours of, automobile emissions standards that address the risk identified. But after forty years of following that integrated approach, EPA now interprets the statute to require an abstract agency risk assessment divorced from the essential regulatory policy judgments its risk assessment entails. Premised on its new interpretation of Section 202(a)(1), EPA not only disavows any obligation, but concludes it lacks any discretion, to consider the regulatory consequences of its Endangerment Rule. This flouts the plain meaning of Section 202(a)(1) and basic tenets of reasoned decisionmaking.
Although EPA ostensibly exercised statutory authority to address perceived dangers to health and welfare caused by new automobile emissions, in fact it made no showing that the Endangerment Rule or any of its other greenhouse gas (“GHG”) rules will effectively remove dangers to health or welfare that might otherwise occur. EPA disclaimed any obligation or authority to define its ultimate regulatory objectives, its chosen means of achieving them, or its conception of successful regulation. Although EPA's regulatory actions are premised on assertions about “changes” to “climate” — including the claim that it is 90-99% certain that human-caused climate change threatens public health and welfare, 74 Fed. Reg. at 66,518 & n.22, nowhere does EPA say what constitutes a “safe climate,” acceptable global temperature ranges, “safe” levels of GHGs in the atmosphere, or even how its regulatory actions will have discernable effects that ameliorate actual dangers to the public. Without a showing of how its automobile regulations will ameliorate the abstract endangerment it posits, even after being in effect for many years, neither EPA, nor the public, nor this Court, can accurately judge whether EPA has achieved a congressionally defined goal.
Although Section 202(a)(1) unambiguously requires the Administrator to exercise independent judgment connecting her risk assessment to a reasoned regulatory response, she left the gathering and sifting of the evidence supporting the Endangerment Rule to an international non-governmental organization chartered to study human-caused climate change. But the conclusions the Administrator borrowed from this organization fall far short of the evidence and analysis necessary to justify EPA's asserted high confidence in its conclusions. Those conclusions rest primarily on modeling projections based on speculative assumptions and modeling results contradicted by real-world observations. Given the multiple, admitted uncertainties of the modeling EPA relied on, the Agency's professed high confidence in its endangerment assessment is unsupported and legally unjustified.
For all these reasons and others, the Endangerment Rule should be vacated and remanded to EPA.
BRIEF OF AMICI CURIAE SCIENTISTS IN SUPPORT OF PETITIONERS SUPPORTING REVERSAL
[Note: The amici curiae brief from the climate scientists was not filed in accordance with the previous court orders and therefore a motion was made for acceptance. The court has not yet decided on whether to grant or deny this motion.]
The data presented in this brief fatally undermine the EPA's finding that human-caused CO2 emissions have already led to, or can be expected to lead to, significant adverse changes in the Earth's climate system. The EPA failed to examine this “relevant data.” FCC v. Fox Television Stations, Inc ., 129 S.Ct. 1800, 1810 (2009) (quoting Motor Vehicles Mfrs. Ass'n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co ., 463 U.S. 29, 43 (1983)). These data, moreover, confirm that EPA's endangerment finding is not “rational” and therefore arbitrary and capricious. Fox, 129 S.Ct. at 1812.
Multiple sets of data show that the Earth's climate is not changing in an unusual or anomalous fashion. The EPA relied on instrumental data that were adjusted to exaggerate the increase in global temperatures. But other much more reliable data show that the Earth's temperature is not changing in an anomalous manner. Since 1979, when satellite data first became available, regional temperature trends have refuted the notion of global warming: the statistical trend shows no change in the tropics and a decrease in temperature in Antarctica.
These satellite data are confirmed by balloon and buoy data. The only regional temperature increase can be found north of 20º North latitude. But these recent temperatures are nothing compared to those in the 1930s, which produced most of the currently existing record temperatures and heat waves in the United States and high temperatures in the Arctic. Other empirical observations substantiate these temperature data: droughts are not becoming longer and more intense, floods are not increasing, hurricanes and tropical storms are not becoming stronger, and the rate of increase in sea levels has actually been declining. Some would expect the opposite if the Earth's temperatures were increasing. At any rate, the data show that the Earth's temperatures are not increasing in an unusual fashion.
Even if the Earth's climate were changing erratically—and it is not—multiple sets of data show that CO2 atmospheric concentration, at most, has only a minor effect on temperature. According to climate models relied on by the EPA, rising CO2 levels should have caused a “greenhouse gas fingerprint”—that is, in the tropics, the atmosphere four to ten miles above the Earth's surface should have been steadily warming at a faster rate than lower levels of the atmosphere. But balloon data (from the creators of the climate data and models relied on by the EPA) from 7.5 miles above the Earth's surface shows no change in temperature trend. Satellite data also confirms that the temperature trend in lower levels of the atmosphere is also flat. And two different sets of tropical ocean buoy data further confirm these findings. Thus, there is no empirically validated reason why further increasing CO2 levels will cause future harm.
Now that temperatures have actually been decreasing in recent years, some have begun to rely solely on climate models—instead of historical data—to argue that CO2 emissions will change the Earth's climate in the future. This assertion is belied by the data just mentioned, because (1) the Earth's climate is not changing in an anomalous fashion and (2) CO2 does not significantly affect the Earth's climate system. Moreover, these global climate models do not perform well in simulating the climate and forecasting the impact of increased levels of CO2. Kevin Trenberth, a lead author of a United Nations report in favor of CO2 regulation, admitted this many times, frankly stating: “The fact that we cannot account for what is happening in the climate system makes any consideration of geoengineering quite hopeless as we will never be able to tell if it is successful or not! It is a travesty!” Tellingly, these CO2 climate models did not forecast the recent decline in global temperatures.
In actuality, data establish that various other factors cause typical, short-term (multi-decadal or shorter) changes in the Earth's climate system. The sun, volcanic activity, and oscillations in ocean temperature behavior, for example, can all affect the Earth's temperature over relatively short and long time scales. The Earth's climate may be changing, as it always naturally has, but the data do not establish that any changes are caused by CO2 emissions.
In toto, all of these filings form a consistent package that would be hard to deny. But whatever decisions are rendered, it is likely that somewhere, somehow, global warming is going to bump its way back up to the Supremes. Expect the judicial system to be involved in global warming for the foreseeable (and probably the unforeseeable) future.
Benefit from putting NOAA in Interior Department
June 08, 2011 12:00 AM
A proposal to combine two federal departments could bring significant changes to the policies that control commercial fishing.
A bill filed in Washington two weeks ago by North Carolina Republican Sen. Richard Burr would combine the departments of Commerce and Labor into a new Department of Commerce and the Workforce.
"In his State of the Union address this year," Burr said, "the president proposed merging and consolidating federal agencies, and this bill advances that proposal. This common-sense approach reduces duplication by combining offices with similar functions within these two agencies and would streamline our approach to comprehensive economic policy."
Enactment would transfer the Small Business Administration into the new department, and, most importantly for the fishing industry, it would transfer the National Oceanic and Atmospheric Administration to the Department of the Interior.
The "intangibles" of such a change could fill the hold of a Russian factory ship, but there is plenty of food for thought in the idea.
The Commerce Department, which today controls NOAA, is about to lose its leader, as Gary Locke was nominated by President Obama in March to be the next ambassador to China . Nominated to replace him is John Bryson.
Bryson is a co-founder of the Natural Resources Defense Council. This has pricked up the ears of fishing interests, who are wary, to say the least, of how badly things could go, considering how bad they already are.
Stifling regulations and capricious enforcement of the industry in the Northeast have idled the region's boats, putting fishermen and the businesses that support them under stress and, frequently, out of business.
And while Locke has recently admitted errors in enforcement, what it took to get that admission gives little hope for long-term improvement in the department's treatment of the industry.
Those looking at Bryson as the future of the Department of Commerce have tried to temper their skepticism of the co-founder of the NRDC, a group Reps. Barney Frank and John Tierney called one of "those environmental organizations that has reflexively attacked the fishing industry inaccurately and without any real environmental basis."
More charitable critics have noted that Bryson hasn't been with the group for 15 years. His attitude now remains to be seen.
Another of Bryson's credentials is that he is a senior adviser for Kohlberg Kravis Roberts & Co., which has been a partner since 2008 with the Environmental Defense Fund, a frequent antagonist for commercial fishing interests.
Working under the secretary is NOAA chief administrator Jane Lubchenco, who before being named by the president to run the agency was a board vice chairman for the Environmental Defense Fund.
Presumably, if NOAA were to move to the Department of the Interior, Lubchenco would go with it, but there are some characteristics of that department that are worth keeping in mind.
Interior Secretary Ken Salazar runs a department that overseas approximately one-fifth of the land in the U.S. It oversees the National Park Service and the U.S. Fish and Wildlife Service.
Environmental groups weren't pleased at the time of his nomination, because they worried he wouldn't properly balance their concerns and those of energy developers. The groups are not unaccustomed to expressing their outrage with Salazar's decisions on mining and energy exploration.
No one can say whether putting NOAA under Interior instead of Commerce would improve the lot of Northeast fishermen, but Interior's mission is more suited to the regulation of natural resources and has services already dealing with common issues.
If the regulatory process were to take a turn toward the fishing industry, the risk of overfishing exists, but we're confident the EDF and its allies will continue to be vocal. It would be good for the process if some other voices could be given an equal hearing for a change.
NOAA, Commerce still have more to repay
By Reidar Bendiksen
Reidar Bendiksen lives
in Dartmouth .
June 08, 2011 12:00 AM
For NOAA and the Department of Commerce to actually come out, apologize, and admit wrongdoings is a first, but to actually pay reparations to people who they put out of business at first glance looks like they are finally getting major egg on their faces.
In the case of Larry Yacubian, it was a very excessive penalty, indeed, and he rightfully deserves to get most of the fines down to a reasonable level. But the $400,000 that is being returned to him amounts to a Band-aid applied to a wound that requires at least a dozen stitches. What about the expenses to fight this case? What about his operators permit, his scalloping permit, and his boat, that at today's market would be worth $4 million to $5 million? And to top it off, the loss of opportunity to participate in the last 10 year's scalloping gold rush-like rewards?
The other side of the matter is he did break the rules, but so did many others at that time. Scalloping was a hard business. Boats were working at a thousand pounds a day or less, and outlook for the future was rather dim. A few years after the world court gave the northeast peak of Georges Bank to the Canadians, scallops showed up across the line in Canadian waters. This unleashed a flurry of poaching activity among a group of scallopers. Both the Canadian and U.S. Coast Guards were going nuts trying to keep them from violating boundary laws. Some boats even steamed into Canadian waters on Christmas Eve, figuring patrols take a break over Christmas.
This and the scallop meat count law created a cat and mouse game between fishermen, Coast Guard and enforcement. I suspect from these situations, closed area No. 1 was strategically placed there with dual purposes: to keep scallopers from poaching and to create a sanctuary for fish. When they finally caught someone doing something illegal, they often made an example out of them even if the punishment didn't fit the offense. As in the case with Yacubian, the judge at the head of that government kangaroo court absolutely ruined his fishing career.
Let us revisit the Catch Share Sector system that is responsible for evicting 50 percent of formerly active participants mainly because of lack of allocations. I read in The Standard-Times the Cape Cod Commercial Hookers Association received three times their historical landings in quota, plus special access to grounds closed to the trawler fleet. The CCCHA was able to sell 70 percent of its allocations to trawlers and still have enough for the year. No wonder they brag about the Catch Share system.
On the flip side, the region's small and medium-size trawlers' quota allotments amounted to only 20 percent of their historical landings. Sixty percent of the fleet was effectively driven out of business because there was not enough quota to go around. So, what laws did these people break to deserve such harsh treatment? Treatment resulting in losing their boats, houses, livelihood and even in some cases their family! Is NOAA and Commerce going to apologize to them? I think they should, because NOAA, NMFS, EDF, NEFMC still don't acknowledge that they ever existed. When you mention any of this to anyone from the above mentioned agencies you only get a blank stare in return, no comment.
It is one thing to evict people from their livelihoods for a just reason, a violation, breaking the rules and so on, but it is a completely different matter when innocent people get this treatment from the stroke of a pen, a council vote or because certain groups just don't want them around for whatever reason. The end result is the same. I cannot believe how the CCCHA could be rewarded three times allocations. It must be NOAA stole quota from the draggers' already sparse allocations to give to the Hookers Association so they were sure to have a very successful model sector.
This is supposed to be a country of freedom and justice. I remember my father once told me: "In this country, if someone has a chance to make personal gains from other people's demise and misfortunes, they consider them people smart over here." I can see what he meant. I cannot believe it also pertains to NOAA. I think apologies and reparations should also be handed out to innocent catch share victims, with even greater urgency than the lawbreakers, no matter how serious or minor their offences were. I think NOAA and the Department of Commerce ought to take a good look at who and how many people have gotten hurt because of their "playing God" schemes and do the right thing for a change. And perhaps we can save what is left of this very important industry.
The Global Debt Crisis, How We Got In It, and How to Get Out
Countries everywhere are facing debt crises today, precipitated by the credit collapse of 2008. Public services are being slashed and public assets are being sold off, in a futile attempt to balance budgets that can't be balanced because the money supply itself has shrunk. Governments usually get the blame for excessive spending, but governments did not initiate the crisis. The collapse was in the banking system, and in the credit that it is responsible for creating and sustaining.
Contrary to popular belief, most of our money today is not created by governments. It is created by private banks as loans. The private system of money creation has grown so powerful over the centuries that it has come to dominate governments globally. The system, however, contains the seeds of its own destruction. The source of its power is also a fatal design flaw.
The flaw is that banks advance “bank credit” that must be paid back with interest, while having no obligation to spend the interest they collect so that borrowers can earn it again and again, as they must in order to retire the debt. Instead, this money is invested in various casinos beyond the borrowers' reach. This leads to a continual systemic need for more new bank credit money, more debt with more interest attached, to prevent widespread defaults and deflationary collapse.
Today this problem is particularly evident in the EU. The Euro is a fixed currency system that does not allow for expansion to meet the demands of the private lending casino. The result is that EU member nations collectively are being crippled by debt.
There are more sustainable ways to run a banking and credit system, as will be shown.
How Banks Create Money
The process by which banks create money was explained by the Chicago Federal Reserve in a booklet called “ Modern Money Mechanics .” It states:
“The actual process of money creation takes place primarily in banks.” [p3]
“[Banks] do not really pay out loans from the money they receive as deposits. If they did this, no additional money would be created. What they do when they make loans is to accept promissory notes in exchange for credits to the borrowers' transaction accounts. Loans (assets) and deposits (liabilities) both rise [by the same amount].” [p6]
“With a uniform 10 percent reserve requirement, a $1 increase in reserves would support $10 of additional transaction accounts.” [p49]
A $100 deposit supports a $90 loan, which becomes a $90 deposit in another bank, which supports an $81 loan, etc.
That's the conventional model, but banks actually create the loans FIRST. (Picture how a credit card works.) Banks need deposits to clear their outgoing checks, but they find the deposits later. Banks create money as loans, which become checks, which go into other banks. Then, if needed to clear the checks, they borrow the money back from the other banks. In effect, they borrow back the money they just created, pocketing the spread between the interest rates as their profit. The rate at which banks can borrow from each other in the U.S. today (the Fed funds rate) is an extremely low 0.2%.
How the System Evolved
The current system of privately-issued money is traced in “Modern Money Mechanics” to the 17th century goldsmiths. People who left gold with the goldsmiths for safekeeping would be issued paper receipts for it called “banknotes.” Other people who wanted to borrow money were also happy to accept paper banknotes in place of gold, since the notes were safer and more convenient to carry around. The sleight of hand came in when the goldsmiths discovered that people would come for their gold only about 10% of the time. That meant that up to ten times as many notes could be printed and lent as the goldsmiths had gold. Ninety percent of the notes were basically counterfeited.
This system was called “fractional reserve” banking and was institutionalized when the Bank of England was founded in 1694. The bank was allowed to lend its own banknotes to the government, forming the national money supply. Only the interest on the loans had to be paid. The debt was rolled over indefinitely.
That is still true today. The U.S. federal debt is never paid off but just continues to grow, forming the basis of the U.S. money supply.
The Public Banking Alternative
There are other ways to create a banking system, ways that would eliminate its ponzi-scheme elements and make the system sustainable. One solution is to make the loans interest-free; but for Western economies today, that transition could be difficult.
Another alternative is for banks to be publicly-owned. If the people collectively own the bank, the interest and profits go back to the government and the people, who benefit from decreased taxes, increased public services, and cheaper public infrastructure. Cutting out interest has been shown to reduce the cost of public projects by 30-50%.
In the United States , this system of publicly-owned banks goes back to the American colonists. The best of the colonial models was in Benjamin Franklin's colony of Pennsylvania , where the government operated a “land bank.” Money was printed and lent into the community. It recycled back to the government and could be lent and relent. The system was mathematically sound because the interest and profits were returned to the government, which then spent the money back into the economy in place of taxes. Private banks, by contrast, generally lend their profits back into the economy, or invest in private money-making ventures in which more is always expected back than was originally invested.
During the period that the Pennsylvania system was in place, the colonists paid no taxes except excise taxes, prices did not inflate, and there was no government debt.
How Private Banknotes Became the National U.S. Currency
The Pennsylvania system was sustainable, but some early American colonial governments just printed and spent, inflating the money supply and devaluing the currency. The British merchants complained, prompting King George II to forbid the colonists to issue their own money. Taxes had to be paid to England in gold. That meant going into debt to the English bankers. The result was a massive depression. The colonists finally rebelled and went back to issuing their own money, precipitating the American Revolution.
In an international first, the colonists funded a war against a major power with mere paper receipts, and won. But the British counterattacked by waging a currency war. They massively counterfeited the colonists' paper money, at a time when this was easy to do. By the end of the war, the paper scrip was virtually worthless. After it lost its value, the colonists were so disillusioned with paper money that they left the power to issue it out of the U.S. Constitution.
Meanwhile, Alexander Hamilton, the first U.S. Treasury Secretary, was faced with huge war debts, and he had no money to pay them. He therefore resorted to the ruse used in England known as fractional reserve banking. In 1791, Hamilton set up the First U.S. Bank, a largely private bank that would print banknotes “backed” by gold and lend them to the government.
The ruse worked: the paper banknotes expanded the money supply, the debts were paid, and the economy thrived. But it was the beginning of a system of government funded by debt to private bankers, who lent banknotes only nominally backed by gold.
During the American Civil War, President Lincoln avoided a crippling war debt by returning to the system of government-issued money of the American colonists. He issued U.S. Notes from the Treasury called “Greenbacks” rather than borrowing at usurious interest rates. But Lincoln was assassinated, and Greenback issuance was halted.
In 1913, the privately-owned Federal Reserve was authorized to issue its own Federal Reserve Notes as the national currency. These notes were then lent to the government, eliminating the government's own power to issue money (except for coins). The Federal Reserve was set up to prevent bank runs, but twenty years later we had the Great Depression, the greatest bank run in history. Robert H. Hemphill, Credit Manager of the Federal Reserve Bank of Atlanta , wrote in 1934:
“We are completely dependent on the commercial Banks. Someone has to borrow every dollar we have in circulation, cash or credit. If the Banks create ample synthetic money we are prosperous; if not, we starve.”
For the bankers, however, it was a good system. It put them in control.
Setting the Global Debt Trap
Prof. Carroll Quigley was an insider groomed by the international bankers. He wrote in Tragedy and Hope in 1966:
“The powers of financial capitalism had another far reaching aim, nothing less than to create a world system of financial control in private hands able to dominate the political system of each country and the economy of the world as a whole.
“The apex of the system was to be the Bank for International Settlements [BIS] in Basle , Switzerland , a private bank owned and controlled by the world's central banks which were themselves private corporations. Each central bank... sought to dominate its government by its ability to control Treasury loans…."
The debt trap was set in stages. In 1971, the dollar went off the gold standard internationally. Currencies were unpegged from gold and allowed to “float” in currency markets, competing with other currencies, making them vulnerable to speculation and manipulation.
In 1973, a secret agreement was entered into in which the OPEC countries would sell oil only in dollars, and the price of oil would be dramatically increased. By 1974, oil prices had increased by 400% from 1971 levels. Countries lacking oil had to borrow dollars from U.S. banks.
In 1981, the Fed funds rate was raised to 20%. At 20% compound interest, debt doubles in under four years. As a result, most of the world became crippled by debt. By 2001, developing nations had repaid the principal originally owed on their debts six times over; but their total debt had quadrupled because of interest payments.
When debtor nations could not pay the banks, the International Monetary Fund stepped in with loans -- with strings attached. The debtors had to agree to “austerity measures,” including:
· cutting social services
· privatizing banks and public utilities
· opening markets to foreign investors
· letting currencies “float.”
Today, austerity measures are being imposed not just in developing countries but in the European Union and on U.S. States.
The BIS: Apex of the Private Central Banking Pyramid
What Professor Quigley foretold about the Bank for International Settlements (BIS) has also come to pass. The BIS now has 55 member nations and heads the global financial pyramid.
The power of the BIS was seen in 1988, when it raised the capital requirement of its member banks from 6% to 8% in an accord called Basel I. The result was to cripple the Japanese banks, which until then were the world's largest creditors. Japan entered a recession from which it has not yet recovered.
U.S. banks managed to escape by dodging the capital requirement. They did this by moving loans off their books, bundling them up as “securities,” and selling them to investors.
To persuade the investors to buy them, these mortgage-backed securities were protected against default with “derivatives,” which were basically just bets. The “protection seller” collected a premium for agreeing to pay in the event of default. The “protection buyer” bought the premium. Owning the asset was not required. Like gamblers at a horse race, derivative players could bet without owning a horse.
Derivatives became a very popular form of gambling. The result was the mother of all bubbles, exceeding $500 trillion by the end of 2007.
Because of securitization and derivatives, credit mushroomed. Virtually anyone who walked in the door could get a loan.
The tipping point came in August 2007, with the collapse of two hedge funds. When the derivatives scheme was exposed, the market for derivative-protected securities suddenly dried up. But the U.S. stock market did not collapse until November 2007, when new accounting rules were imposed. The rules grew out of the Basel II Accords initiated by the BIS in 2004. “Mark to market” accounting required banks to value their assets according to market demand that day. Many U.S. banks, like those in Japan in the 1990s, suddenly had insufficient capital to make new loans. The result was a credit crisis from which the U.S. has not yet recovered.
The BIS has now become global regulator, just as Quigley foresaw. In April 2009, the G20 nations agreed to be regulated by a Financial Stability Board based in the BIS, and to comply with “standards and codes” set by the Board. The codes are only guidelines, but countries that fail to comply risk downgrades in their credit ratings, something so costly that the guidelines have effectively become laws.
An article on the BIS website states that central banks in the Central Bank Governance Network should have as their single or primary objective “to preserve price stability.” That means governments should not devalue the national currency by inflating the money supply; and that means not “printing money” or borrowing credit created by their own central banks. Like the American colonies after King George took away their power to issue their own money, governments must fund their deficits by borrowing from private banks. The bankers' global control over currency issuance has become virtually complete.
The effects of this policy are particularly evident in the European Union, where EU rules allow deficits of only 3% of government budgets and prevent member countries from either issuing their own money or borrowing credit advanced by their own central banks. Member nations must borrow instead from the European Central Bank, private international banks, or the IMF. The result has been forced austerity measures, as seen in Greece and Ireland . The system is so unsustainable that commentators are predicting that the EU may break up.
The Way Out: Return the Money Power to Public Control
To escape the debt trap of the global bankers, the power to create the national money supply needs to be restored to national governments. Alternatives include:
· Legal tender issued directly by national treasuries and spent on national budgets.
· Publicly-owned central banks empowered to advance the nation's credit and lend it to the government interest-free.
· Nationalization of bankrupt banks considered “too big to fail” (after expunging or writing down bad debts on inflated bubble assets). These banks could then issue credit to the public and serve the public's banking needs, with the profits recycling back to the government, defraying the tax burden on the people.
· Publicly-owned local banks (state, provincial, or municipal).
Publicly-owned banks have been successfully established and operated in many countries, including Australia , New Zealand , Canada , Germany , Switzerland , India , China , Japan , Korea , and Malaysia .
In the United States there is currently only one state-owned bank, the Bank of North Dakota. The model, however, has proven to be highly successful. North Dakota is the only U.S. state to have escaped the credit crisis unscathed. In 2009, while other states floundered, North Dakota had its largest budget surplus ever. In 2008, the Bank of North Dakota (BND) had a return on equity of 25%. North Dakota has the lowest unemployment rate in the country and the lowest default rate on loans. It also has the most local banks per capita.
North Dakota has had its own bank since 1919, when farmers were losing their farms to the Wall Street bankers. They organized, won an election, and passed legislation. The state is required by law to deposit all its revenues in the BND. Like with the sustainable model of the bank of colonial Pennsylvania , interest and profits are returned to the government and to the local economy.
A growing movement is afoot in the United States to copy this public banking model in other states. Fourteen U.S. state legislatures have now initiated bills for state-owned banks.
The model could also be replicated in other countries. In Ireland , for example, where the major banks are insolvent and are already nationalized or soon will be, the government could deposit its revenues in its own publicly-owned banks, add sufficient capital to meet capital requirements, and leverage these funds to create interest-free credit for its own local needs. That is exactly what Alexander Hamilton did when faced with government debts that were impossible to repay: he put the government's existing funds in a bank, then borrowed the money back several times over, employing the accepted “fractional reserve” model.
Japan 's solution is also a variant of what Alexander Hamilton proposed two centuries earlier. Japan retains its status as the third largest economy in the world although it has a debt to GDP ratio of 226%. Japan has “monetized” the national debt, turning it into the national money supply. The government-owned Bank of Japan holds Japanese government debt equal to 100% of the nation's GDP; and because the government owns the bank, this loan is interest-free and can be rolled over indefinitely. An interest-free loan rolled over indefinitely is the equivalent of issuing money.
Ellen Brown developed her research skills as an attorney practicing civil litigation in Los Angeles . In Web of Debt, her latest book, she turns those skills to an analysis of the Federal Reserve and “the money trust.” She shows how this private cartel has usurped the power to create money from the people themselves, and how we the people can get it back. Her earlier books focused on the pharmaceutical cartel that gets its power from “the money trust.” Her eleven books include Forbidden Medicine, Nature's Pharmacy (co-authored with Dr. Lynne Walker), and The Key to Ultimate Health (co-authored with Dr. Richard Hansen). Her websites are www.webofdebt.com and www.ellenbrown.com .
Disclaimer: The views expressed in this article are the sole responsibility of the author and do not necessarily reflect those of the Centre for Research on Globalization. The contents of this article are of sole responsibility of the author(s). The Centre for Research on Globalization will not be responsible or liable for any inaccurate or incorrect statements contained in this article.
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The uncertain and often lengthy time to get permitting decisions is always near the top of the list of industry complaints. Section 165 of the Clean Air Act provides some relief by requiring certain permit decisions to be made within one year. Last week, in Avenal Power Center v. EPA , District Judge Richard Leon, in what may comfortably be described as a strongly-worded opinion, held that EPA may not circumvent the one-year limit on permit decisions by carving out from the one-year period the time spent by the Environmental Appeals Board reviewing EPA's permit decision.
In March 2008, Avenal Power filed an application for a PSD permit necessary to construct a new gas-fired power plant in the San Joaquin Valley in California. When EPA had not issued a decision within two years, Avenal sued. In February 2011, Gina McCarthy, head of EPA's air office, announced that EPA would issue a permit decision by May 27, 2011. However, Judge Leon found EPA's commitment to be “disingenuous,” because EPA's permit decision would be subject to EAB review, and EPA acknowledged that EAB review could take 6-18 months.
Judge Leon's analysis was, in keeping with the statutory language, quite simple. Section 165 requires permit decisions within one year. EPA's decision to provide appeals of permits to the EAB is a creature of regulation, not statute. The notion that EPA's regulatory process could trump the statutory requirements is, to Judge Leon, “absurd.”
It is axiomatic that an act of Congress that is patently clear and unambiguous - such as this requirement in the CAA - cannot be overridden by a regulatory process created for the convenience of an Administrator, no matter how much notice and comment preceded its creation. "The rulemaking power granted to an administrative agency charged with the administration of a federal statute is not the power to make law. Rather it is the power to adopt regulations to carry into effect the will of Congress as expressed by the statute."
EPA apparently tried to persuade the court that section 165 is sufficiently ambiguous to give EPA discretion regarding whether it must squeeze the EAB process into the one-year time frame. Judge Leon's response to what he called EPA's “self-serving misinterpretation of Congress's mandate”?
"Horsefeathers! "
One parochial note for my Massachusetts readers: Massachusetts DEP has recently announced that its permits – although labeled as “Final” – are not final until DEP's own internal adjudicatory hearing process has been completed. Massachusetts law has nothing comparable to Section 165 of the CAA, so MassDEP's interpretation adds the insult of delay inherent in adjudicatory proceedings to the injury caused by the length of the normal permit process..
A federal lawsuit is to be filed to get water pollution control standards enforced and to restore the ecological health of the San Joaquin River and Bay-Delta estuary, says a group of fishing and conservation groups Tuesday.
The notice to sue is required under the Clean Water Act.
The planned lawsuit contends that irrigating crops on the west side of the San Joaquin Valley leaches selenium from the soil, eventually sending it to the San Joaquin River and from there into the Sacramento-San Joaquin Delta and San Francisco Bay.
“For decades, state and federal officials have looked the other way and refused to enforce water pollution control standards that restrict the discharge of this toxic substance into the San Joaquin River and other tributaries of the Bay-Delta Estuary,” say the groups bringing the lawsuit, Pacific Coast Federation of Fishermen's Associations, California Sportfishing Protection Alliance, Friends of the River and San Francisco Crab Boat Owners Association.
The legal action was trigged by a March 17 announcement by the U.S. Environmental Protection Agency that it would allow selenium discharges to continue another 10 years, “in direct violation of the Clean Water Act's mandate that the nation's waters be both swimmable and fishable,” the groups say.
“For decades, these west side irrigators have received a free pass to pollute,” says Bill Jennings of the California Sportfishing Protection Alliance. “It's time to enforce the law and make these polluters meet protective water quality standards.”
Arkansas-based NanoMech, Inc. will host Dr. Arun Majumdar, founding Director of the Department of Energy's Advanced Research Projects Agency (ARPA-E), at the company's Springdale manufacturing plant and laboratory at 10 a.m. Tuesday, June 7. Majumdar's visit was arranged by U.S. Rep. Steve Womack of Rogers after the Congressman visited NanoMech with U.S. Secretary of the Treasury, Mr. Timothy Geithner.
ARPA-E is the country's only agency devoted to transformational energy research and development, and Majumdar is the agency's first director. He also serves as Senior Advisor to U.S. Secretary of Energy Dr. Steven Chu, a Nobel Prize winner. Dr. Majumdar is a distinguished member of the National Academy of Engineering (NAE). Majumdar will be accompanied on his trip by Peder Maarbjerg, Assistant Director for External Coordination at ARPA-E, and Nick Cizek, an ARPA-E fellow.
During Majumdar's visit, NanoMech will reveal and share a new lubricant additive invention produced under its revolutionary NanoGlide ® technology platform. NanoGlide has been described as the world's first multi-component nanomanufactured lubricant. This radical innovation virtually eliminates friction and wear at “energy hungry” mating surfaces under the harshest frictional conditions, called boundary lubrication. This scientific and product innovation breakthrough originated from partial support by the Department of Energy (DOE), the Department of Defense (DOD) and the National Science Foundation (NSF) and will greatly reduce friction and wear for critical energy sectors using machinery in extreme pressure conditions. NanoGlide delivers a drop-in advanced material solution ready to plug into the $50 billion global grease and oil lubricant market. Near future developments for NanoGlide are in form factors such as oil additives which extend life of oil by 10-30 percent.
NanoMech Chief Executive Officer Jim Phillips said NanoMech plays a vital role in creating next generation energy-conserving solutions and performance advancements for a country dependent on foreign oil. By increasing the reliability and energy efficiency of vehicles, locomotives, wind turbines, diesel-powered trucks and other vital transport and machines, NanoMech directly solves the most critical challenges facing our country by dramatically increasing the use of renewable energy sources, reducing dependence on foreign energy sources and increasing productivity of U.S. industries.
As the Director of ARPA-E, Majumdar is responsible for finding and funding innovative energy technologies such as NanoGlide.
The breakthrough invention of NanoGlide was partially the result of a $1 million plus grant for innovation research from the Department of Energy through stimulus funding.
“DOE provided the funding, and we delivered results and simulated knowledge based job growth. And we did it in half the time expected for launch Gen 1.0 grease product,” said Dr. Ajay P. Malshe, NanoMech founder and Chief Technology Officer. Many other energy solutions are in various stages of development in NanoMech labs that would qualify for DOE grants.
“This radical improvement in technology is something we can do now. It can be dropped into existing products around the world for sustainable future,” said Malshe. He estimates NanoGlide can extend the life of oil by up to 30 percent.
Terry Noland, Vice President and General Manager for NanoMech's fast-growing NanoGlide division, described its impact on the lubrication industry: “A reduction in friction and wear of 5 percent is considered a paradigm shift. What we're introducing is a 25-percent reduction. We didn't create grease, we just made it better,” he said.
The TRAIN Act would create a multi-million dollar committee to conduct cost-benefit analyses of 10 EPA regs aimed at curbing GHGs and other pollutants
By Elizabeth McGowan, SolveClimate News
WASHINGTON—Those perceiving the Clean Air Act as a lumbering locomotive intent on flattening U.S. jobs, economic competitiveness and energy reliability hope the "TRAIN Act" makes more than a whistle-stop tour through Capitol Hill.
Conservationists, however, have an opposite take.
For them, the wheels can't come off soon enough from House legislation that is saddled with a cumbersome name — Transparency in Regulatory Analysis of Impacts on the Nation Act of 2011 — to create a cutesy but memorable acronym that lends itself to ridicule.
Press Release
Contact: Vaughn Jennings 202.225.2211
TRAIN Act Clears Energy and Power Subcommittee with Bipartisan Support
Washington, May 24 -
Today, Congressman John Sullivan, Vice Chairman of the Energy and Power Subcommittee, issued the following statement after the panel passed H.R. 1705, the Transparency in Regulatory Analysis of Impacts on the Nation Act of 2011 (TRAIN Act). The bipartisan Sullivan/Matheson legislation requires an interagency committee to analyze the cumulative and incremental impacts of certain significant rules issued by the EPA in an effort to better understand how these regulations are impacting America's global economic competitiveness, electricity and fuel prices, employment, and reliability of electricity supply. The study will also analyze cumulative cost and benefit impacts and discuss the cumulative effects of EPA's rules on consumers; small businesses; state, local and tribal governments; labor markets; and agriculture.
“Today's bipartisan vote on the TRAIN Act sends a clear signal that there is support across the board for reining in the EPA's regulatory train wreck. Regulations being pushed by the Obama Administration will cost our country billions of dollars, negatively impacting everything from energy reliability, jobs, manufacturing to the overall global competitiveness of the United States. Simply put, the American people and this Congress deserve to know exactly how much these regulations are costing our economy, and the TRAIN Act will bring the full impact of the EPA's regulatory train wreck to light. I applaud my colleagues for passing this legislation and taking an important step towards protecting families, businesses and states across the country from burdensome regulations that drive up the cost of energy and place American jobs in jeopardy.”
H.R. 1705 was passed by voice vote and now moves to the full Energy and Commerce committee for further consideration.
Satellite Technology Feature Article
June 07, 2011
Tea Party in Space Supports Democratic Senators on Heavy Lift Rocket Competition
Agriculture Secretary Vilsack and Partners Urge Action to Feed More Hungry Children This Summer
USDA Kicks-off First-Ever National Summer Food Service Program Awareness Week
WASHINGTON, June 6, 2011 – Agriculture Secretary Tom Vilsack today kicked-off the first-ever National Summer Food Service Program Week: " Food That's In When School Is Out ," a week-long awareness campaign to promote USDA's Summer Food Service Program (SFSP) and other initiatives across the country to feed low-income children during summer when school is out. The SFSP, a federally funded program designed to alleviate hunger during the summer, operates through partnerships between USDA, state agencies and local organizations.
"When it comes to our children, we must do everything possible to provide them the nutrition needed to be healthy, active and ready to win the future," said Vilsack. "But we also recognize that government cannot address this challenge alone, which is why this week we join our valued partners to raise awareness about the nutrition gap low-income children face when school is out of session. Working together, government, non-profit and faith-based organizations, as well as the public, can make sure children have access to nutritious food year round."
Today, at least 17 million children in the United States face a higher risk for hunger during the summer. Although more than 20 million children nationwide receive free and reduced-priced meals through the National School Lunch Program during the regular school year, little more than 3 million kids are fed in summer meal programs.
This week, USDA and its partners will redouble efforts to highlight the important nutrition benefits provided by the SFSP and other healthy meal options available for low-income children across the country. This summer:
- Let's Move! Faith and Communities (part of First Lady Michelle Obama's Let's Move! initiative) will work with partners to host new feeding sites at congregations and neighborhood organizations;
- the Corporation for National and Community Service's 515 AmeriCorps VISTA Summer Associates will work at anti-hunger organizations across the country to feed more children in programs, including the SFSP;
- several states will test innovative enhancements to the SFSP, including the provision of food backpacks to provide assistance over weekends, and meal delivery to reach children in rural areas.
"Each summer, millions of families struggle to provide their children with nutritious meals when schools close," said Kevin Concannon, Under Secretary for Food, Nutrition, and Consumer Services. "SFSP fills this gap by marshalling resources to curb food insecurity and end hunger for our nation's children.
To find a summer feeding site in your community, call the National Hunger Hotline at 1-866-3-Hungry or 1-877-8-Hambre." To find more ways you can help, search for volunteer opportunities at www.serve.gov/endhunger .
Improving child nutrition is the focal point of the Healthy, Hunger-Free Kids Act signed into law by President Obama in December 2010. The legislation reauthorized the Summer Food Service Program and USDA's other child nutrition programs. The Act allows USDA, for the first time in over 30 years, the chance to make real reforms to school meals and increase access to these critical programs. The Healthy, Hunger-Free Kids Act is also the legislative centerpiece of First Lady Michelle Obama's Let's Move! initiative to end childhood obesity in a generation.
USDA's Food and Nutrition Service (FNS) oversees the administration of 15 nutrition assistance programs, including the Summer Food Service Program and other child nutrition programs, that touch the lives of one in four Americans over the course of a year. These programs work in concert to form a national safety net against hunger. Visit www.fns.usda.gov for information about FNS and nutrition assistance programs and go to http://www.fns.usda.gov/ech/ to see how you can help end childhood hunger.
Please read, comment, share ( click here ): David vs Goliath. You vs Fedzilla. Tenth Amendment Center vs the establishment. The odds always seem pretty much stacked against the good guys. But, no matter how difficult things may seem, no matter how helpless it may feel, it's always essential for us to do what's right. And, for the TAC, doing what's right is pretty straightforward… The Constitution. Every issue, every time. No exceptions, no excuses. Standing on principle has become easy for us since the organization was founded in 2006. In the past five years we've been regularly called communists by neo-cons and racists by neo-libs. Both sides agree that strict adherence to the Constitution – as we relentlessly demand – is dangerous to their mission of centralized power. In just a short time, we've grown to be a force on the political scene. Five years ago, the word “nullification” was only something for history buffs. Today, it's becoming part of the national discussion. So much, in fact, that both Heritage Foundation on the right and the Southern Poverty Law Center on the left have both attacked our work. If you're not catching any flak, you're not over the target. And little TAC, with a few dozen dedicated volunteers and just two barely-paid staffers, Bryce Shonka and myself, is definitely catching flak.
Michael Constantinou
University at Buffalo-SUNY
Civil, Structural and Environmental Engineering
132 Ketter Hall, Amherst Campus
Buffalo, NY 14260-4300
tel.: 716-645-2114, ext: 2404
fax: 716-645-3733
email: constan1 [at] eng.buffalo.edu
C. B. Crouse
URS Corp
1501 4th Ave., Suite: 1400
Seattle, WA 98101-1616
tel.: 206-438-2700
fax: 206-438-2699
e-mail: cb_crouse [at] urscorp.com
James Harris
J.R. Harris & Company
1776 Lincoln Street, Suite: 1100
Denver, CO 80203
tel.: 303-860-9021
fax: 303-860-9537
e-mail: Jim.Harris [at] JRHarrisAndCo.com
Jon A. Heintz , Program Manager
Applied Technology Council
201 Redwood Shores Parkway, Suite: 240
Redwood City, CA 94065
tel.: 650-595-1542
fax: 650-593-2320
e-mail: jheintz [at] atcouncil.org
William T. Holmes
Rutherford & Chekene Consulting Engineers
55 Second Street - Suite: 600
San Francisco, CA 94105
tel.: 415-568-4403
fax: 415-618-0684
e-mail: wholmes [at] ruthchek.com
Jack Moehle
University of California, Berkeley
775 Davis Hall
Berkeley, CA 94720-1710
tel.: 510-642-0697,
fax: 510-643-8928
e-mail: moehle [at] berkeley.edu
Andrew Whittaker
University at Buffalo-SUNY
Civil, Structural and Environmental Eng.
230 Ketter Hall
Buffalo, NY 14260-4300
tel.: 716-645-2114, ext: 2418
fax: 716-465-3733
e-mail: awhittak [at] buffalo.edu
OVERNIGHT ENERGY: Reg-review battle reaches Capitol Hill
By Andrew Restuccia and Ben Geman - 06/02/11 07:13 PM ET
State of Play: Cass Sunstein, the White House's regulatory point man, will face House Republicans Friday for the first time since the administration outlined a sweeping plan to review a slew of agency rules last week.
Sunstein will appear before the House Energy and Commerce Committee's Oversight and Investigations panel, where he's certain to get peppered with questions about whether the administration's plan goes far enough to ensure that regulations are not overly burdensome.
Expect Sunstein — administrator of the White House Office of Information and Regulatory Affairs — to get some tough questions from Republicans about the Environmental Protection Agency's review plan.
For a hint of what's to come tomorrow, here's full committee Chairman Fred Upton's (R-Mich.) take on the administration's regulatory review plan, from a statement provided to The Hill Thursday:
"Much more must be done to rein in the Obama administration's regulatory bonanza. We need a chainsaw, not a scalpel in [the] fight against the unnecessary bureaucratic red tape that is choking our economic recovery and sending jobs overseas."
Industry groups have taken aim at EPA's plan. The American Petroleum Institute, the country's most powerful oil-and-gas trade group, said Wednesday that EPA's plan doesn't go far enough .
The group said the plan doesn't address two regulations the industry is very concerned about: pending greenhouse gas regulations for stationary sources like power plants and refineries, and upcoming rules setting more stringent ozone standards.
EPA's review plan identifies 31 regulations that the agency will re-evaluate. The agency will take immediate steps to review 16 of the regulations. The other 15 reviews will take place over a longer period of time.
In the plan, EPA pledges to “harmonize” fuel-efficiency regulations and eliminate requirements for gas stations to have technology to capture air pollution vapor, among other things.
The committee will hear from stakeholder groups in a second panel tomorrow. Sure enough, U.S. Chamber of Commerce Senior Vice President William Kovacs will blast EPA's regulatory review plan.
“And in the case of EPA, its look-back does little to nothing in the way of addressing the bulk of rulemakings of significant concern to the Chamber and its members,” he will say, according to his written testimony.
James Gattuso, senior research fellow at the Heritage Foundation, and David Goldston, director of government affairs at the Natural Resources Defense Council, will also testify at Friday's hearing.
The following proposed rule is undergoing a review by the Office of Management and Budget's (OMB) Office of Information and Regulatory Affairs.
• The Environmental Protection Agency (EPA) has proposed a rule to significantly reduce air pollution from power plants in 31 states and the District of Columbia. The rule would focus on the reduction of sulfur dioxide and nitrogen oxide emissions to protect the ozone and human health and would guide states to meet specific agency-calculated state-by-state “allowance allocations.” Limited amounts of these allocations, under the EPA's preferred tactic, could be traded between power plants as long as all states met their “pollution control obligations.” The reduction requirements would be incremental, necessitating lower emissions in 2012 and then 2014 from the selected states. Even though the rule would cost approximately $2.8 billion annually, the agency estimates approximately $120 billion to $290 billion in annual health benefits in 2014 alone. The rule replaces the controversial Clean Air Interstate Rule, which a judge struck down in 2008. The EPA is allowed to keep CAIR in place until the new rule is in place.
Public comment periods are closing soon for the following proposed rules:
• The Food and Drug Administration is complying with the Patient Protection and Affordable Care Act of 2010 by proposing that calorie and other nutrition facts be disclosed on menus for restaurants with 20 or more locations. The restaurants would need to be serving similar menus and be listed under the same name to be subjected to the rule. The comment period ends June 6.
• The Bureau of Economic Analysis has proposed a rule that would eliminate several survey requirements regarding direct investments. The eliminated information regarding foreign direct investment into the U.S. seafood market and other data is no longer required because the same records are being collected in other surveys by the bureau. The comment period for the rule ends June 6.
• The U.S. Nuclear Regulatory Commission has proposed a rule that would certify standard plant design for the Economic Simplified Boiling Water Reactor. Utility licensees aiming to build and operate their own power plant would be able to reference this already certified safe design in future applications if the rule passes. GE-Hitachi Nuclear Energy applied for full certification of this reactor, which lasts 15 years if granted. The commission is accepting comments until June 7.
• The Department of Health and Human Services is seeking comments about a proposed rule that would encourage the growth of Accountable Care Organizations under the Medicare Shared Savings Program. These health providers would sign a three-year contract with the Centers for Medicare and Medicaid Services to work with other hospitals, doctor's offices and long-term care facilities in hopes of providing the best care at the lowest cost for Medicare patients. The rule was created as part of the Affordable Care Act and would allow participating providers to receive additional payments beyond service fees if they meet or exceed quality standards. The comment period ends June 6.
NEWS BITES:
Whitfield eyes fast action on EPA air rules, Keystone pipeline bill : A top House Energy and Commerce Committee Republican said Thursday that he hopes to move bills through his subcommittee in mid-June that would delay two EPA air pollution rules.
Rep. Ed Whitfield (R-Ky.), who heads the Energy and Power subcommittee, said the bills would address hazardous air-pollution rules for cement plants and boilers. Republicans and industry groups call the rules overly burdensome and say they will kill jobs.
“We are going to go on and try to move our cement and boiler MACT legislation the week we get back,” Whitfield said, referring to EPA's “maximum achievable control technology” rules. The House is out next week but returns the week of June 13.
Whitfield is also targeting the week that the House will return for introducing legislation to thwart EPA's proposed air-toxics rules for power plants, called the “utility MACT.” He suggested that bill would go beyond just delaying EPA's plan.
“There may be some aspects of the utility MACT that we may try to do a little bit more than that, because that regulation is pretty broad ... but we haven't completed the legislation yet,” Whitfield told reporters in the Capitol. “Hopefully we will get that introduced the first week back.”
He also said that he'd like the subcommittee to act “quickly” on legislation aimed at expediting the Obama administration's decision on whether to green-light TransCanada's proposed Keystone XL pipeline.
The committee's GOP leadership backs the project that would bring oil from Alberta's oil sands projects to Gulf Coast refineries.
Sanders to float bill forcing CFTC's hand on oil-position limits: Sen. Bernie Sanders (I-Vt.) will introduce legislation next week to force the Commodity Futures Trading Commission to immediately impose new limits on investors in oil markets in an effort to curb “excessive” speculation.
Sanders and other Senate Democrats argue that such speculation is to blame for high oil-and-gas prices.
The legislation, known as the End Excessive Oil Speculation Now Act, would require the chairman of the CFTC to use emergency authority to impose position limits, or caps on the number of futures contracts that a market player can hold, for crude oil.
The bill — which is still a “work in progress,” according to a Sanders spokesman — would compel the CFTC to act within 48 hours.
The spokesman, Michael Briggs, said Sanders is shopping the proposal around to other senators in an effort to gather co-sponsors.
Sanders and six other Senate Democrats met with CFTC Chairman Gary Gensler last week to call on the agency to immediately implement the position limits.
But Gensler told the lawmakers that a proposal on the issue must undergo additional review before being finalized.
Sanders told reporters after the meeting that the CFTC needs to move more quickly, pointing to high gas prices.
“There is nothing that I heard from him which suggests any sense of urgency about the need to protect consumers or, in fact, to protect our economy,” he said. “I was disappointed by the tone of the meeting, the lack of urgency, the lack of specific ideas, and that's something we're just going to have to deal with.”
The CFTC proposed reworked limits in January based on provisions in the Dodd-Frank financial reform bill that required the commission to implement aggregate position limits on energy commodities. But the CFTC has yet to finalize the rules even though the law called for their completion within 180 days of enactment.
House Dems' report outlines plan for cutting oil dependence : A group of House Democrats joined with the Center for American Progress and the Association for Commuter Transportation Thursday in releasing a report calling for new transportation policies to lower the country's dependence on oil.
The report, titled “Freedom from Oil,” calls for increased fuel economy, investments in alternative vehicles and “pay-as-you-drive” insurance, among other things.
“Because our transportation system is almost entirely dependent on petroleum, policymakers can have the most — and most immediate — impact by focusing their efforts on providing and encouraging a range of transportation options,” the report says.
The report was unveiled Thursday by Reps. Earl Blumenauer (D-Ore.), Jim Moran (D-Va.), Lois Capps (D-Calif.) and Peter Welch (D-Vt.).
ON TAP FRIDAY:
Broad energy bill under the microscope: A House Energy and Commerce Committee panel will hear from a top Energy Department official and others Friday when it meets to review a sweeping energy bill sponsored by Rep. Devin Nunes (R-Calif.).
The bill, which has more than 70 co-sponsors, would open vast offshore areas to oil-and-gas drilling, and require permitting of scores of new nuclear reactors over 30 years.?? The bill also opens up the Arctic National Wildlife Refuge (ANWR) to oil drilling; steers substantial federal revenues from ANWR and offshore development into a trust fund for renewable power projects; and blocks EPA climate-change rules.
It seeks to boost development of oil shale in western states and requires the Defense Department to construct a plant to make transportation fuels from coal.
The legislation is largely a messaging vehicle because it's stuffed with provisions that have no chance of passing the Senate. Also, GOP leaders have adopted a strategy of moving more targeted energy bills rather than a single sweeping measure.
But the Energy and Power subcommittee hearing will nonetheless provide a venue for a broad debate on energy. Witnesses include David Sandalow, the Energy Department's assistant secretary for policy and international affairs, and representatives from Rand Corp., the Heritage Foundation, Hudson Clean Energy Partners and more.
House panel to survey critical minerals plans : A panel of the House Natural Resources Committee will review a pair of bills aimed at surveying U.S. supplies of rare-earth minerals and other strategic elements, and boosting domestic development.
The hearing comes amid concerns over reliance on China for materials that are vital to key defense and clean-energy technologies, as well as other applications. More on the hearing here .
The topic is generating a substantial amount of attention on Capitol Hill.
On Friday, Rep. Randy Hultgren (R-Ill.) will introduce a bill that would require the Energy and Interior Department's to team up to improve assessments “energy critical elements.”
The assessment would encompass potential resources, production and other matters. The bill also seeks to bolster research aimed at expanding availability of these elements.
Washington, D.C.-Sen. James Inhofe (R-Okla.), Ranking Member on the Senate Committee on Environment and Public Works, together with Senators David Vitter (R-LA), Mike Crapo (R-ID), John Boozman (R-AR), Thad Cochran (R-MS), and Jim Risch (R-ID), yesterday introduced The Small System Safe Drinking Water Act of 2011 (S. 999)-a bill that helps small water systems comply with Federal drinking water standards by requiring that the Environmental Protection Agency (EPA) utilize all the affordability provisions provided under the 1996 Safe Drinking Water Act amendments (SDWA), which are designed to help water systems in smaller communities come into compliance.
Details about The Small System Safe Drinking Water Act of 2011
Specifically, this bill requires EPA to update its affordability criteria, which it admitted in 2006 is unfair to small systems. Currently, EPA assumes that families can afford water rates of 2.5 percent of their annual median household income, or $1,000 per household. For some families, paying $83 a month for water may not be a hardship but for so many more, it is nearly impossible. This bill guarantees that there is some flexibility inserted into the calculation that determines the ability of the truly disadvantaged to pay these costs-it will make sure small systems get the help they need to meet these requirements.
It provides EPA with practical steps to take to help small systems cope with drinking water rules by reauthorizing the technical assistance program and identifying barriers to new technologies. The bill creates a pilot program to demonstrate new technologies and approaches for systems of all sizes to comply with these complicated rules.
Most importantly this bill requires the federal government to pay for these unfunded mandates created by laws and regulations: In 1995, Congress passed the Unfunded Mandates Reform Act to ensure that the Federal government pays the costs incurred by state and local governments in complying with Federal laws. The bill ensures that EPA cannot take an enforcement action against a system serving less than 10,000 people, without first ensuring that it has sufficient funds to meet the requirements of the regulation.
National River Cleanup™ provides a tangible way for you and your community to make a difference on your local river. Just a few hours outside can remove tons of trash from the rivers and streams that provide your drinking water.
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Registration Summary for
Ted Arman, Site Owner, Mayor of Minnesota
Registration ID: 653116641 Seminar Title: Evaluation of Ecosystem Services at Remediation Sites: InVEST Tool Analysis for Iron Mountain Mine Date: August 24, 2011 Time: 1:00 PM - 3:00 PM, Eastern Daylight Time (10:00 AM - 12:00 PM Pacific Daylight Time) Call-In Phone Number: 1-866-299-3188 or 1-706-758-1822 (outside US) Access Code: 7036039904# Seminar Web Site:http://www.clu-in.org/conf/tio/invest/
Registration Summary for
John Hutchens, Local Government Vice-Warden & Head-Master, Naturalist & Custodian of the Spring Creek School
SOLICITOR: The title of the chief law officer of a government body or department, such as a city, town, or Municipal Corporation .
In U.S. v. Rowe, 96 F.3d 1294 (9th Cir. 1996), a law firm launched an investigation after learning that one of its lawyers may have mishandled client funds by assigning two associates to investigate his conduct and report back their findings. Subsequently, a grand jury subpoenaed the associates, and the firm asserted the attorney-client privilege. Even though the associates were never told they were acting as the firm's attorneys, did not keep time records or bill the firm for their time, and were taking direction from a senior partner, Judge Kozinski found that they were, in effect, in-house counsel and that the privilege would attach to their confidential communications with the members of the firm. Id. at 1296-97. The Court of Appeals relied exclusively on federal law for this result.
Lost Oxboro of Old Shakopee Minnesota Perdido Cabecera del Rio Buena Ventura California Precinct Caucus Delegate and Regional Representative.
Fons Capitas Aquarium Curator
Subject:
[FWD: Water News Release (HQ): EPA Seeks Input from Small Entities on Revisions for the Lead and Copper Rule]
Thank you for the invitation to participate as Small Entity Representatives (SERs) for a Small Business Advocacy Review (SBAR) Panel. I focus on the agency's development of a rule that proposes revisions to the lead and copper rule.
I represent small businesses and small non-profit entities directly and economically significantly affected by these rule making decisions.
EPA seeks self-nominations directly from the small entities that may be subject to the rule requirements.
Obediently yours to serve as SERs,
John Hutchens
-------- Original Message --------
Subject: Water News Release (HQ): EPA Seeks Input from Small Entities
on Revisions for the Lead and Copper Rule
From: "U.S. EPA" <usaepa@govdelivery.com>
Date: Tue, June 28, 2011 11:29 am
To: john@ironmountainmine.com
EPA Seeks Input from Small Entities on Revisions for the Lead and Copper Rule
WASHINGTON -- The U.S. Environmental Protection Agency (EPA) is inviting small businesses, governments, and non-profit organizations to participate as Small Entity Representatives (SERs) for a Small Business Advocacy Review (SBAR) Panel. The panel will focus on the agency’s development of a rule that proposes revisions to the lead and copper rule.
EPA’s reconsideration of the current rule is based on a national review of the implementation of the lead and copper rule. The review identified several areas of concern about the effectiveness of the existing regulations. The changes under consideration are intended to improve the effectiveness of the measures to safeguard public health to control lead and copper in drinking water.
The Regulatory Flexibility Act requires EPA to establish an SBAR Panel for rules that may have a significant economic impact on a substantial number of small entities. The panel will include federal representatives from the Small Business Administration, the Office of Management and Budget, and EPA. The panel asks a selected group of SERs to provide advice and recommendations on behalf of their company, community, or organization to inform the panel about the potential impacts of the proposed rule on small entities.
EPA seeks self-nominations directly from the small entities that may be subject to the rule requirements. Other representatives, such as trade associations that exclusively or at least primarilyrepresent potentially regulated small entities, may also serve as SERs.
CONTACT Dale Kemery (News Media Only) kemery.dale@epa.gov
202-564-7839
202-564-4355
FOR IMMEDIATE RELEASE
July 12, 2011
EPA Strengthens Key Scientific Database to Protect Public Health
WASHINGTON – The U.S. Environmental Protection Agency today announced plans to improve its Integrated Risk Information System (IRIS) program as part of an ongoing effort initiated in 2009 to strengthen the program. IRIS is a publicly available on-line database that provides high quality science-based human health assessments used to inform the agency’s decisions on protecting public health and the environment
“Decision makers rely on the IRIS program for accessible, science-based health assessments of environmental contaminants,” said Paul Anastas, assistant administrator of EPA's Office of Research and Development. “Further strengthening the IRIS program is part of EPA’s commitment to continuous improvement and ensuring we use the best possible science to protect human health and the environment.”
The improvements announced today will make IRIS even stronger. All new IRIS assessment documents will be shorter, clearer and more visual, concise, and transparent. IRIS users can expect to see a reduced volume of text and increased clarity and transparency of data, methods, and decision criteria. Documents will be rigorously edited to eliminate inconsistencies and address redundancies and will include more graphical and tabular representations of data. Related discussions will also be consolidated into concise narrative descriptions.
To make the scientific rationale behind the assessments and toxicity values as transparent as possible, EPA will evaluate and describe the strengths and weaknesses of critical studies in a more uniform way. EPA will also indicate which criteria were most influential in evaluating the weight of the scientific evidence supporting its choice of toxicity values.
The latest actions are in direct response to recommendations received on April 8, 2011, from the National Academy of Sciences (NAS).
EPA is working closely with the agency’s Science Advisory Board on how to bring to bear its expertise on an ongoing basis to focus on the quality, transparency and scientific rigor of IRIS assessments and guide EPA’s response to the NAS recommendations.
EPA will also create a new peer consultation step early in the development of major IRIS assessments to enhance the input of the scientific community as assessments are designed.
In 2009, EPA implemented an improved IRIS process to ensure scientific quality, integrity, transparency, and the timeliness of EPA’s efforts to manage chemical risks.
The process now includes a streamlined review schedule, ensuring that the majority of assessments will be finalized within two years of their start date, opportunities for input from EPA scientists, federal agency reviewers, and the public, and greater transparency by making the scientific studies used to develop assessments available through the Health and Environmental Research Online database.
The IRIS database includes more than 540 chemical substances, containing crucial information about how they impact human health. Combined with exposure information, governments and private entities use IRIS to help characterize the public health risks of chemical substances, thereby supporting risk management decisions designed to protect public health.
This is a FREE web-based slide presentation with a companion audio portion. We provide two options for accessing the audio portion of the seminar: by phone line OR streaming audio simulcast (not both). By selecting one registration option below, you are registering for the web-based slides and the audio method of your choice.
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This will allow you to listen to the audio portion of the seminar online while viewing the seminar materials in your browser. You will not be able to participate by telephone. However, you will be able to submit questions online for the presenters to answer during the seminar.
In addition to our four core partners, we work closely with experts across Stanford and Minnesota's campuses and from many institutions in the public, private and non-profit sectors.
In short, we engage leaders in key institutions and meld world-class research and development with influential, on-the-ground conservation programs.
Advancing natural capital approaches by engaging leaders in key institutions
Our demonstration projects are designed for replication and scaling. Through these projects, and by engaging leaders in key institutions, we are advancing the use of natural capital approaches worldwide. We seek a global, deep, and game-changing transformation in how governments and businesses factor the values of nature into policy and decision-making.
The Nature Conservancy pursues non-confrontational, pragmatic, market-based solutions to conservation challenges. This makes it essential for us to work collaboratively with partners—with communities, companies, government agencies, multilateral institutions, individuals and other non-profit organizations around the globe.
Governmental Agencies
In the United States, we work with federal government agencies, such as the Environmental Protection Agency (EPA), the U.S. Department of Agriculture (USDA), the U.S. Agency for International Development (USAID), the U.S. Department of the Interior (DOI), the National Park Service (NPS) and the Department of Defense (DOD); as well as agencies at the state and local level.
The Conservancy and Dow Chemical Company are working together on a breakthrough collaboration that will ultimately help Dow incorporate the value of nature into its company-wide goals, strategies and business objectives..
We are using science to help large companies like Coca-Cola determine their “water footprint” – a key strategy for keeping more water available for people, plants and animals.
Learn more about how we are collaborating with companies for conservation.
Non-Profit Organizations
The Conservancy works with other like-minded organizations, ranging from large non-profit conservation groups like Conservation International and NatureServe, to local land trusts. For example:
Explore the Natural Capital Project, a partnership among the Conservancy, WWF, and Stanford University designed to make conservation economically attractive and commonplace throughout the world.
The Conservancy works in cooperation with private landowners and local stakeholders, such as ranchers, farmers and fishermen, to ensure good ecological management while continuing to support the local economy. For example:
Learn how the Conservancy is working with local ranchers in California's Mount Hamilton Project
Learn how the Conservancy is using sustainable aquaculture in Long Island's Great South Bay.
Indigenous and Traditional Communities
Most of the world’s biodiversity exists in areas inhabited by people. Effective conservation cannot be achieved unless the people who live and rely on those lands are an integral part of the conservation process. For more than 50 years, The Nature Conservancy has depended upon partnerships with indigenous people and local communities to conserve some of the most biologically critical and threatened ecosystems on Earth.
Although our primary conservation method since The Nature Conservancy began working outside the U.S. has been allocating and designing funding sources for conservation, more and more we are understanding that successful conservation strategies must include partnerships with governments, lending institutions, and other non-governmental organizations at all levels local, national and international. For example:
In 2002, the Conservancy worked with the World Wildlife Fund using funding from the US Agency for International Development to launch the Indonesia Illegal Logging Project, a $10 million partnership that addresses illegal logging supply side issues in Indonesia and demand side issues in major international markets such as China and Japan.
The Conservancy has partnered with UNDP and others in the Equator Initiative, which was launched at the World Summit on Sustainable Development in Johannesburg, South Africa in September 2002.
The Conservancy established a new network of organizations collaborating on conservation finance initiatives—the Conservation Finance Alliance (CFA). Members as of May 2003 were: The Nature Conservancy, Ramsar Convention on Wetlands, Wildlife Conservation Society, Conservation International, World Wildlife Fund, USAID, German Government Agency for Technical Assistance (GTZ), National Parks Conservation Association (US), and RedLAC.
The Global Conservation Program Leader with Associates Cooperative Agreements is a $75 million biodiversity program supported by USAID and six other conservation partners: African Wildlife Foundation, Conservation International, Enterprise WorksWorldwide, Wildlife Conservation Society, World Wildlife Fund, and The Nature Conservancy.
The goal of the GCP is to conserve globally significant areas of biodiversity through broad programs that are sustainable, focused and adaptive. The GCP has awarded the Conservancy with funding to Kimbe Bay in Papua New Guinea, Komodo National Park, Wakatobi National Park and Raja Ampat in Indonesia, the MesoAmerican Reef system just off the Caribbean coast of Mexico, Belize, Guatemala and Honduras and the Pantanal/Chaco region in Paraguay. At these sites, the Conservancy is investing in innovative conservation finance mechanisms along with site-based conservation initiatives with partners and local communities.
Ecosystem services is the term applied to the life-sustaining benefits that nature provides, such as waste decomposition, clean water, and flood control. Knowledge of the ecosystem services available at a contaminated site is necessary in order to identify and adopt measures to reduce impacts on those services during remediation activities. To understand and quantify these ecosystem services, there is a need to identify tools and develop methodologies for characterizing their value to inform site decisions during remedy design and implementation.
The InVEST (Integrated Valuation of Ecosystem Services and Tradeoffs) program, developed by the Natural Capital Project, is a set of tools designed to model and map the delivery, distribution, and economic value of distinct ecosystem services. EPA will host an interactive Internet Seminar to: (1) present a brief background on ecosystem services; (2) discuss a case study of the InVEST tools at the Iron Mountain Mine Superfund Site; and (3) offer insights, lessons learned, and general considerations about ecosystem service evaluation at remediation sites. An open forum will be held after the presentation during which participants will be able to submit questions and feedback to the speakers.
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Welcome to TechDirect, a free service from the U.S. EPA Technology Innovation and Field Services Division (TIFSD). TechDirect highlights new publications and events of interest to site remediation and site assessment professionals. Once a month, TechDirect will send you an e-mail message describing new publications and upcoming events. Our short messages will describe the publication or event and direct you to places to obtain further information.
TIFSD produces numerous one-time and periodic publications and electronic information on technologies and markets for soil and ground water remediation. We strive to provide relevant information to technology developers, academics, consulting engineers, and state and federal regulators. Our mission is to advance the use of new technologies for hazardous waste site characterization and remediation.
TechDirect will not focus solely on our products and events. We will feature publications and events we believe are relevant to your needs, be they from EPA, other federal agencies, or elsewhere. TechDirect is a moderated list. Therefore, subscribers may not post messages directly to the ListServ. If you know of a current document that is relevant to site characterization or waste remediation, contact Jeff Heimerman at heimerman.jeff@epa.gov.
Most of the information highlighted in TechDirect resides on our Clean-Up Information (CLU-IN) web site at http://clu-in.org. CLU-IN contains information on policies, programs, organizations, publications and databases useful to waste remediation professionals. The site contains technology descriptions and reports as well as current news on business aspects of waste site remediation. However, TechDirect will also highlight documents resident on other web sites.
If you have any questions or comments concerning this service, please contact TIFSD at (703) 603-9910 or e-mail Jeff Heimerman at heimerman.jeff@epa.gov.
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RCRA for OSCs explains the Resource Conservation and Recovery Act (RCRA) requirements that apply or are relevant and appropriate to most cleanups under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). This session will focus on specific technical and regulatory issues that OSCs address in treating, transporting, and disposing of waste.
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OSC Readiness Presents...Natural Resource Trustees and the Laws They are Required to Enforce
Natural Resource Trustees and the Laws They are Required to Enforce provides a general understanding of natural resources, Federal, State, and Tribal Natural Resource Trustees, and Trustee resources. The session will provide practical information on the definition of natural resources and examples of resources under Federal, State, and Tribal trusteeship. Participants will also learn the legal and regulatory basis for EPA's notification and coordination activities with Natural Resource Trustees.
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OSC Readiness Presents...Constitutional Issues and the OSC
Constitutional Issues and the OSC focuses on providing participants with an overview and basic understanding of the U.S. Constitution and those laws that have a direct effect on the OSC. Participants will gain information on such topics as takings, due process, liability, and just compensation.
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OSC Readiness Presents...Debris Management Issues during Natural Disasters
The Debris Management Issues during Natural Disasters session will discuss debris-related roles of Emergency Support Function-3 (ESF-3) and ESF-10: the division of responsibilities and coordination between the two ESFs during natural disaster and contaminated debris responses.
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OSC Readiness Presents...RAD Emergency Response Plan
RAD Emergency Response Plan will provide participants with a basic understanding of the RAD Emergency Response Plan. The session will also provide an update and status on the EPA Protective Action Guides (PAGs)and other resources available to OSCs regarding radiation.
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Environmental Statutes Basics provides a basic history and describes the major provisions of some of the EPA statutes, including the Toxic Substances Control Act (TSCA) and the Clean Water Act (CWA). Participants will also receive a brief history of the EPA and how statutes and regulations are developed.
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Curso de Capacitación sobre Remediación de Sitios Contaminados (el primer día)
Una buena caracterización de los sitios contaminados es esencial antes de embarcarse en proyectos de restauración. Para tal fin, es necesario obtener datos de calidad y características acordes a las necesidades del proyecto y que conformen con normativas medioambientales en vigor. En este seminario de dos días se tratarán los procedimientos administrativos para la caracterización de sitios, los procesos de supervisión y verificación del cumplimiento normativo, y los plazos de respuesta de la autoridad.
Metas del seminario: (1) describir los tipos de análisis químicos y físicos para la caracterización de sitios contaminados (métodos, equipos, y limitaciones); (2) interpretar los resultados de los principales tipos de análisis utilizados en la caracterización de sitios contaminados; (3) describir la preparación y el contenido de un estudio de caracterización de pasivos ambientales; y (4) proporcionar estudios de casos reales sobre evaluación de los riesgos ambientales y de salud.
Si tiene alguna dificultad con el proceso de registración en esta página, favor de comunicarse con Carlos Pachon, EPA, mediante correo electrónico a: pachon.carlos@epa.gov o al teléfono +1-703-603-9904.
Content Questions?
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Curso de Capacitación sobre Remediación de Sitios Contaminados (de dos días)
Una buena caracterización de los sitios contaminados es esencial antes de embarcarse en proyectos de restauración. Para tal fin, es necesario obtener datos de calidad y características acordes a las necesidades del proyecto y que conformen con normativas medioambientales en vigor. En este seminario de dos días se tratarán los procedimientos administrativos para la caracterización de sitios, los procesos de supervisión y verificación del cumplimiento normativo, y los plazos de respuesta de la autoridad.
Metas del seminario: (1) describir los tipos de análisis químicos y físicos para la caracterización de sitios contaminados (métodos, equipos, y limitaciones); (2) interpretar los resultados de los principales tipos de análisis utilizados en la caracterización de sitios contaminados; (3) describir la preparación y el contenido de un estudio de caracterización de pasivos ambientales; y (4) proporcionar estudios de casos reales sobre evaluación de los riesgos ambientales y de salud.
Si tiene alguna dificultad con el proceso de registración en esta página, favor de comunicarse con Carlos Pachon, EPA, mediante correo electrónico a: pachon.carlos@epa.gov o al teléfono +1-703-603-9904.
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Bioavailability-Based Remediation of Metals Using Soil Amendments: Considerations & Evaluation Techniques: Part 2
Attend this session to learn about soil contaminant bioavailability-based remediation of metal contaminants with soil amendments. You'll learn about what we've done and learned and where we need to focus for future success.
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Seminars Hosted by Partner Organizations
The following seminars are being advertised as a public service for the CLU-IN audience. You may register for these seminars, which will be held on other websites, through the 'More Information & Registration' links below.
The land of milk and subsidies
Monday, July 11, 2011
Did everyone already know that the 2nd Congressional District racks up the most federal farm subsidies of any of the 50-plus districts in California?
I might have guessed, but I'm not sure I've ever seen it broken down. In any case, News 10 from Sacramento says it's so in this report on farmers preparing for deficit-driven federal cutbacks:
The 2nd Congressional District of Republican Rep Wally Herger ranked first from 1995-2010, pulling in $2.3 billion.
Local Food Systems and Brownfields Redevelopment
As interest in urban agriculture continues to accelerate, communities have begun to implement innovative programs that seek to address the "big picture" of the entire local food system, and how previously developed, potentially contaminated sites can play a role in that system. For communities interested in learning more about these initiatives, and for brownfield professionals seeking information on how to be involved in them, this webinar will provide national and local perspectives on new programs, resources, and best practices. From the national perspective, Ann Carroll will discuss some of the best new initiatives across the country, and how some of them fit into job training goals for local communities. Dr. Sabine Martin will provide an overview of urban agriculture resources for brownfield programs, along with best management practices and examples. Jenn Bildersee from Portland Oregon will provide a local perspective on how the Portland Brownfield Program tailored its program to the rising demand for urban agriculture. There, the community has set a goal of creating 1000 new community gardens by the end of 2012, and the Brownfields Program is an active partner in realizing that goal.
Content Questions?
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Seminars Sponsored by the Interstate Technology and Regulatory Council
Decision Framework for Applying Monitored Natural Attenuation Processes to Metals and Radionuclides in Groundwater
Sites contaminated with metals and radionuclides present unique challenges to the development of effective remedial alternatives that also provide long-term protection to human health and the environment. The high costs of ongoing conventional treatment, total removal, and/or management combined with the scale of potential health and environmental risks make it important to evaluate attenuation-based remedial alternatives. Sites that have been identified as having metal and/or radionuclide contamination include federal facilities, industrial (e.g., mines) sites, disposal sites, and transportation corridors. Common metals include arsenic, cadmium, chromium, lead, nickel, copper, and selenium. For radioactive hazardous substances, uranium, radium, strontium, technetium, tritium, and thorium are the most common contaminants of concern. The attenuation processes affect most metals and radionuclides by changing their valence state, which in turn affects their solubility and therefore mobility. When properly employed, Monitored Natural Attenuation (MNA) is an effective knowledge-based remedy where a thorough engineering analysis informs the understanding, monitoring, predicting, and documenting of natural processes. In order to properly employ this remedy, there needs to be a strong scientific basis supported by appropriate research and site-specific monitoring implemented in accordance with quality systems.
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Incorporating Bioavailability Considerations into the Evaluation of Contaminated Sediment Sites
The U.S. Environmental Protection Agency estimates that approximately 10 percent (over a billion cubic yards) of the sediment underlying our nation's surface water is sufficiently contaminated with pollutants to pose potential risks to fish and to humans and wildlife that eat fish. Based on current average costs for managing contaminated sediments, this volume of material could cost several trillion dollars to dredge. Methods to assess the potential effect of sediment contamination on human or ecological health are historically based on total contaminant concentrations in the bulk sediment. However, research conducted over the past fifteen years has shown that the bioavailability of many of these contaminants to receptors is much less than the total amount of contaminant in the sediment. "Bioavailability processes," as defined by the National Research Council, are the "individual physical, chemical, and biological interactions that determine the exposure of plants and animals to chemicals associated with soils and sediments." Only the bioavailable fraction of an environmental contaminant may be taken up and subsequently result in an effect on an organism. Incorporating bioavailability considerations in the calculation of risk can optimize the extent of cleanup required to be protective, improve site decision-making, and can be an important factor in balancing the risks caused by remedial action with the risks addressed by remedial action.
ITRC's web-based Technical and Regulatory Guidance, Incorporating Bioavailability Considerations into the Evaluation of Contaminated Sediment Sites (CS-1, 2011) and associated Internet-based training are intended to assist state regulators and practitioners with understanding and incorporating fundamental concepts of bioavailability in contaminated sediment management practices. This guidance and training describe how bioavailability considerations can be used to evaluate exposure at contaminated sediment sites, the mechanisms affecting contaminant bioavailability, available tools used to assess bioavailability, the proper application of those tools, and how bioavailability information can be incorporated into risk-management decisions. This guidance and training also contain summaries of case studies where bioavailability has been assessed and considered in the contaminated sediment remedial decision making process. This guidance and training provide insight on how bioavailability assessments can be used to understand, mitigate, and manage risk at a contaminated sediment site, often at a reduced overall project cost.
The intended users of this guidance and training participants are individuals who have a working knowledge of contaminated sediment management but seek additional information about bioavailability. Prior to the training class, participants are encouraged to review the following documents:
ITRC's web-based Technical and Regulatory Guidance, Incorporating Bioavailability Considerations into the Evaluation of Contaminated Sediment Sites (CS-1, 2011) http://www.itrcweb.org/contseds-bioavailability
U.S. Environmental Protection Agency, "Ecological Risk Assessment Guidance for Superfund: Process for Designing and Conducting Ecological Risk Assessment"- Interim Final, June 1997 http://www.epa.gov/oswer/riskassessment/ecorisk/ecorisk.htm
U.S. Environmental Protection Agency, "Risk Assessment Guidance for Superfund (RAGS)" Volume 1 -- Human Health Evaluation Manual, Supplement to Part A: Community Involvement in Superfund Risk Assessments, 1989 http://www.epa.gov/oswer/riskassessment/ragsa/ci-ra.htm
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Use and Measurement of Mass Flux and Mass Discharge
Most decisions at groundwater contamination sites are driven by measurements of contaminant concentration -- snapshots of contaminant concentrations that may appear to be relatively stable or show notable changes over time. Decisions can be improved by considering mass flux and mass discharge. Mass flux and mass discharge quantify the source or plume strength at a given time and location resulting in better-informed management decisions regarding site prioritization or remedial design as well as lead to significant improvements in remediation efficiency and faster cleanup times. The use of mass flux and mass discharge is increasing and will accelerate as field methods improve and practitioners and regulators become familiar with its application, advantages, and limitations. The decision to collect and evaluate mass flux data is site-specific. It should consider the reliability of other available data, the uncertainty associated with mass flux measurements, the specific applications of the mass flux data, and the cost-benefit of collecting mass measurements.
The ITRC technology overview, Use and Measurement of Mass Flux and Mass Discharge (MASSFLUX-1, 2010), and associated Internet-based training provide a description of the underlying concepts, potential applications, description of methods for measuring and calculating, and case studies of the uses of mass flux and mass discharge. This Technology Overview, and associated internet based training are intended to foster the appropriate understanding and application of mass flux and mass discharge estimates, and provide examples of use and analysis. The document and training assumes the participant has a general understanding of hydrogeology, the movement of chemicals in porous media, remediation technologies, and the overall remedial process. Practitioners, regulators, and others working on groundwater sites should attend this training course to learn more about various methods and potential use of mass flux and mass discharge information.
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Use of Risk Assessment in Management of Contaminated Sites
The ITRC Risk Assessment Resources team developed a document titled Use of Risk Assessment in Management of Contaminated Sites (RISK-2, 2008). This Internet-based training is taken from the RISK-2 document and highlights variation of risk-based site management and how to improve the use of risk assessment for making better risk management decisions. This training course looks at how various risk-based approaches and criteria are applied in various states and programs throughout the processes of screening, characterization, and management of contaminated sites.
The document and training course are intended for risk assessors and project managers involved with the characterization, remediation, and/or re-use of sites. Together they provide a valuable tool for federal and state regulatory agencies to demonstrate how site data collection, risk assessment, and risk management may be better integrated. This training course explains:
Variation in risk assessment parameters/approaches in various states and their influence on risk management
Insights into the use of risk assessment in risk management process through use of specific case study examples
An improved process of using risk assessment in risk management
This course builds on the Risk Team's previous work identifying variation in the development of risk-based numerical criteria, specifically soil screening levels. A prerequisite to this training course is the Risk Team's previous Internet-based training (archive is available from http://cluin.org/live/archive.cfm?sort=title#itrc) based on ITRC's Risk Assessment and Risk Management: Determination of Risk-Based Values (RISK-1, 2005). The Electronic Risk Resource Sheet published by the ITRC Risk Team is recommended as an excellent resource for supplemental materials related to risk assessment and risk management.
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This amendment would save roughly ten percent from this appropriations bill, or $3 ¼ billion, by getting the federal government out of the energy subsidy business.
For more than 30 years, the Department of Energy has squandered billions of dollars subsidizing research and development that no private investor would touch – with the promise it would make our nation energy independent. Every year we have spent untold billions on these programs and every year we’ve become more dependent on foreign oil.
We are now running a deficit that threatens to bankrupt our country, and this requires us to cast a critical eye on every expenditure that has failed to achieve its objectives. And none has failed so spectacularly as the Department of Energy’s subsidy of energy research which has left us billions of dollars poorer and stuck with mediocre technologies that only survive on a lifeline of public subsidies.
The opposition will attempt to depict this amendment as a Luddite reaction to “green technology.”
It is exactly the opposite. By stopping the government from doling out dollars to politically favored industries – by stopping it from picking winners and losers among emerging technologies competing for capital – we restore the natural flow of that capital toward those that are the most economically viable and technologically feasible.
For example, this amendment cuts funding to the Energy Efficiency and Renewable Energy Program, which functions as an R&D department for every solar, biomass, geothermal and wind energy company in the country.
We’re not funding the most viable research in these technologies. Private capital beats a path to the door of viable technology. These expenditures are for research considered so dubious that no private investor in his right mind would risk his own capital. And yet this Congress has been more than willing to risk our constituents’ capital in the form of their tax dollars. And it shouldn’t surprise us that those investments have not paid off.
This misallocation of resources not only destroys jobs in productive ventures in order to create jobs in subsidized ones, it ends up reducing our energy potential instead of expanding it and destroying wealth instead of creating it.
Politicians love to appear at ribbon cuttings and issue self-congratulatory press releases at government-supported “alternative energy” businesses, but fall strangely silent when asked to actually account for the billions of our dollars they’ve wasted.
The best thing we did for shale oil and gas technology was to have gotten the government out of the business of funding it.
Guess what happened? Once we got the government out, it took the productive sector just a few years to develop remarkable new drilling techniques that have unleashed a cornucopia of American energy into the market. Is there really a question as to which of these models actually work?
This appropriations act proposes to spend $200 million for vehicle technology research. Isn’t that what auto manufacturers should do, and used to do, with their own capital? And if they are not willing to risk their own capital, what right has this Congress to risk our constituents’ earnings?
These amendments move the government out of all sectors of subsidizing research – biomass, nuclear, solar, wind, fossil fuels – all across the board.
Does that mean that research and development will stop on all these technologies? On the contrary. It means that all of the distortions that government intervention has made in the energy sector can be corrected, and that private capital can once again flow freely to those technologies that offer the greatest return at the lowest cost.
Thirty years of government energy subsidies promised to reduce our dependence on foreign oil, and yet our dependence has become vastly greater.
All we have done is to squander billions of dollars of our nation’s treasure and distorted and impeded the natural flow of investment dollars that could have produced far greater returns in viable technology.
We are left with a bankrupt and energy deficient and dependent nation while propping up a few politically well-connected interests producing ethanol and solar panels at a staggering expense – an expense we have hidden from consumers with their own tax dollars.
Our energy policy over the last thirty years simply proves that Thomas Jefferson was right when he observed, “were we directed from Washington when to sow and when to reap, we should soon want bread.” For thirty years, we have been directed from Washington how to develop our energy. It should surprise no one that we now lack energy.
A federal judge has again shut down production at a Mosaic Co. phosphate mine in central Florida, though the Plymouth-based fertilizer maker said Monday that it will likely appeal the decision.
Mosaic, one of the world's top fertilizer producers, has been battling with environmental activists for over a year about extending its mining operations in Fort Meade, Fla. Phosphate is a crucial fertilizer ingredient, and the South Fort Meade mine is the firm's biggest.
In 2010, after seven years of hearings and reviews, the U.S. Army Corps of Engineers issued Mosaic a permit to expand the mostly played-out mine by over 10,000 acres.
But the Sierra Club and other environmental groups successfully sued to halt the project, saying that it would damage wetlands and that the Corps' review process had been faulty.
Under a preliminary injunction issued last July, mining at South Fort Meade was shut down until November, when it was allowed to resume.
Then in April, Mosaic informed the judge that it would start mining about 700 acres of "uplands," or non-wetlands, at South Fort Meade, saying such work wouldn't require a federal clean water permit.
The environmental groups objected, and on Friday U.S. District Judge Henry Lee Adams Jr. agreed with them, signing a preliminary injunction to halt mining. "Any harm to Mosaic is largely self-inflicted," Adams wrote.
Mosaic said in a news release that Adams' ruling "may bring significant hardship to our employees and local communities." Mosaic shares fell $3.59 Monday to $66.99.
The company says that despite the South Fort Meade shutdown, it will meet customer demand through its 2012 fiscal year. Among other things, Mosaic says it will increase output at other Florida phosphate mines and buy phosphate from other companies.
In a news release, Mosaic General Counsel Richard Mack said the company was "surprised and disappointed" by Adams' ruling. "The inclusion of uplands mining in the injunction is particularly unwarranted because such mining does not require a federal permit."
Mosaic said it intends to seek a stay of Adams' preliminary injunction, pending an appeal of "uplands-only" mining.
The Sierra Club said in a news release that Adams found that the areas Mosaic was mining were covered in the Corps permit that the court shot down last year.
"The court has recognized that the Corps of Engineers review of this project was deeply flawed and needs to be redone," Bev Griffiths of Sierra Club Florida said in a statement.
Mike Hughlett • 612-673-7003
press release
Silver Horn Mining Ltd. Acquires the Historic Tip Top Mine
PHOENIX, Jul 11, 2011 (GlobeNewswire via COMTEX) -- Silver Horn Mining Ltd. SILV-1.75% is pleased to announce that the Company has acquired the Tip Top Mine in Yavapai County, AZ. Along with the "76" Mine, the Tip Top property will strengthen Silver Horn Mining's foothold in the mineral rich Bradshaw Mountains.
Tip Top produced approximately 6 Million ounces of high-grade silver between 1876 and the 1930's, according to historic data. Assays records from that time period mention an average of 360 ounces of silver per ton, with assays running as high as 2,985 ounces of silver per ton.
The company plans to initiate a work program at Tip Top consisting of sampling the ore dumps and the underground workings as well as mapping the property and assaying to identify potential drill targets in the area.
Only 12 miles from a major highway and less than 50 miles from the metropolis of Phoenix, AZ., Silver Horn Mining's Tip Top and "76" are well positioned in a historic mining district. Additionally, Yavapai County is a mining friendly jurisdiction and Arizona has a successful history of mining across the state.
Company President, Daniel Bleak, states, "We are very excited to begin a new era in the historic Tip Top Mining District. Although silver has been the main focus in the district, the area has also produced tungsten and gold. We are committed to increasing shareholder value with these strategic acquisitions and we will continue to search for other properties to add to our portfolio."
About Silver Horn Mining Ltd.
Silver Horn Mining Ltd. ("Silver Horn") is a mining and resources company focused on exploring and developing mineral resources, with an emphasis on silver. Silver Horn's corporate strength lies in its management's expertise in the natural resource industry. Silver Horn will target and acquire projects with previous production and/or exploration and work towards fully developing those projects to build core reserves and drive revenues.
Safe Harbor Statement
Except for the statements of historical fact contained herein, the information presented in this news release constitutes "forward-looking statements" as such term is used in applicable United States and Canadian laws. These statements relate to analyses and other information that are based on forecasts of future results, estimates of amounts not yet determinable and assumptions of management. Any other statements that express or involve discussions with respect to predictions, expectations, beliefs, plans, projections, objectives, assumptions or future events or performance (often, but not always, using words or phrases such as "expects" or "does not expect", "is expected", "anticipates" or "does not anticipate", "plans", "estimates" or "intends", or stating that certain actions, events or results "may", "could", "would", "might" or "will" be taken, occur or be achieved) are not statements of historical fact and should be viewed as "forward-looking statements". Such forward looking statements involve known and unknown risks, uncertainties and other factors which may cause the actual results, performance or achievements of the Company to be materially different from any future results, performance or achievements expressed or implied by such forward-looking statements. Such risks and other factors include, among others, the actual results of exploration activities, variations in the underlying assumptions associated with the estimation or realization of mineral resources, the availability of capital to fund programs and the resulting dilution caused by the raising of capital through the sale of shares, accidents, labor disputes and other risks of the mining industry including, without limitation, those associated with the environment, delays in obtaining governmental approvals, permits or financing or in the completion of development or construction activities, title disputes or claims limitations on insurance coverage. Although the Company has attempted to identify important factors that could cause actual actions, events or results to differ materially from those described in forward-looking statements, there may be other factors that cause actions, events or results not to be as anticipated, estimated or intended. There can be no assurance that such statements will prove to be accurate as actual results and future events could differ materially from those anticipated in such statements. Accordingly, readers should not place undue reliance on forward-looking statements contained in this news release and in any document referred to in this news release.
This news release was distributed by GlobeNewswire, www.globenewswire.com
EPA Seeks Public Input on Cleanup Plan for Crown Vantage Landfill Superfund Site in Alexandria Township, New Jersey
Release date: 07/11/2011
Contact Information: Elias Rodriguez, 212-637-3664, rodriguez.elias@epa.gov
(New York, N.Y.) – The U.S. Environmental Protection Agency announced a proposed plan to cleanup the Crown Vantage Landfill Superfund site in Alexandria Township, Hunterdon County, New Jersey. The former landfill is contaminated with volatile organic compounds, polychlorinated biphenyls and other pollutants. Volatile organic compounds are a group of chemicals that evaporate easily into the air and have serious health effects. Polychlorinated biphenyls are potentially cancer-causing in people and build up in the fat of fish and animals. The landfill is 10 acres and a small portion sits on the eastern bank of the Delaware River. The EPA has already completed most of the cleanup work at the site, including removing over 2,450 drums and related waste from the landfill, and the site does not present an imminent risk to public health.
EPA’s proposed cleanup plan will ensure that the remaining pollutants from the site are contained under an existing forested cover and bordered by a stabilization wall. EPA’s proposed plan will put into place new deed restrictions to prevent any activity that would disturb the site and prohibit any future construction at the site. The plan also requires long term monitoring to ensure that the existing forested cover and slope stabilization wall continue to prevent direct contact with underlying wastes and to protect against erosion. EPA will hold a public meeting on the proposed plan and welcomes comments on July 12, 2011 at 7:00 p.m. at the Milford Firehouse, 21 Water Street, Milford, New Jersey. Public comments will be accepted through July 30, 2011.
“Long after they stop accepting waste, landfills often leaves a legacy of pollution that must be controlled,” said EPA Regional Administrator Judith A. Enck. “By containing the remaining landfill materials and taking other control measures, EPA is ensuring that conditions at the Crown Vantage Landfill Site protect human health and the environment. EPA encourages public input on the proposed plan.”
In the past, EPA oversaw the digging up and backfilling with clean fill of the area and the construction of an engineered wall that stabilizes the landfill and prevents landfill materials from reaching into the Delaware River. Fencing and signage have also been installed to discourage trespassers from disturbing the existing surface of the site. EPA’s proposed plan incorporates and builds upon these earlier cleanup actions.
Crown Vantage was used as a landfill from in the 1930s and until the early 1970s. Access to the landfill area is restricted by locked chain-link fencing. The landfill reportedly was utilized by the adjacent Curtis Specialty Papers mill, as well as by other nearby Riegel Paper Company facilities for the disposal of waste beginning in the late 1930s through the early 1970s.
In November 2004, EPA completed shoring up specific areas of the Crown Vantage Landfill that were severely damaged by flooding. In addition, EPA repaired flood-damaged sections of the fence along the northern and southern edges of the site and placed warning signs along the perimeter. EPA added the Crown Vantage Landfill Site to the federal Superfund list in 2005.
EPA is requesting public comments on the proposed plan and will hold a public meeting to explain the plan and receive comments July 12, 2011 at 7:00 pm at the Milford Firehouse, 21 Water Street, Milford, New Jersey. Comments will be accepted until July 30, 2011. Written comments may be mailed or emailed to:
Alison Hess
Remedial Project Manager
Special Projects Branch
U.S. Environmental Protection Agency
290 Broadway, 19th Floor
New York, New York 10007-1866
Tel. 212-637-3959 hess.alison@epamail.epa.gov
House Transportation and Infrastructure Committee Chair Mica, R-Fla., and Ranking Member Rahall, D-W.V., have introduced HR 2018, which would prevent EPA from overriding state decisions regarding implementation plans for water quality programs. The Clean Water Cooperative Federalism Act of 2011’s purpose is to restore the long-standing relationship between states and EPA as co-regulators under the Clean Water Act (CWA).
The CWA does not contemplate a single federal water quality program. Instead, it sets up a system whereby states can receive EPA approval to implement water quality programs under state law, in lieu of federal implementation. These states are called “authorized states.” The CWA also does not establish uniform national water quality standards. Instead, under the Act, states establish water quality standards for the water bodies in that state and EPA has the authority to approve or disapprove the state standard. However, once EPA has approved a state standard, its implementation/interpretation is left to the state.
The sponsors of HR 2018 introduced this legislation amid concerns that EPA had exceeded its role as the approver of programs/standards and attempted, instead, to directly implement water quality programs in approved states. The bill would limit EPA’s ability to override approved state standards and permits.
Home | News | $3.8 BILLION INVESTMENT IN HUMAN GENOME PROJECT DROVE $796 BILLION IN ECONOMIC IMPACT CREATING 310,000 JOBS AND LAUNCHING THE GENOMIC REVOLUTION
$3.8 BILLION INVESTMENT IN HUMAN GENOME PROJECT DROVE $796 BILLION IN ECONOMIC IMPACT CREATING 310,000 JOBS AND LAUNCHING THE GENOMIC REVOLUTION
“Genomic Revolution” Forging Major Breakthroughs in Medicine, Agriculture, Security & Justice, and Energy and Promises to Create Significantly More Jobs in the Future
WASHINGTON, D.C. — The $3.8 billion the U.S. government invested in the Human Genome Project (HGP) from 1988 to 2003 helped drive $796 billion in economic impact and the generation of $244 billion in total personal income, according to a study released today by Battelle. In 2010 alone, the human genome sequencing projects and associated genomics research and industry activity directly and indirectly generated $67 billion in U.S. economic output and supported 310,000 jobs that produced $20 billion in personal income. The genomics-enabled industry also provided $3.7 billion in federal taxes during 2010.
The report also outlines significant breakthroughs the Human Genome Project, and a companion private project from Celera Genomics, have made possible in just the first ten years since the reference human genomes were published. Advancements include new approaches to medicine, greater productivity in agriculture and potential sources of renewable energy. The study also forecasts the creation of significantly more jobs in the future as new companies and new industries continue to form around the expanded knowledge of human DNA model organism genomes and advances in genomics technology.
“From a simple return on investment, the financial stake made in mapping the entire human genome is clearly one of the best uses of taxpayer dollars the U.S. government has ever made,” said Greg Lucier, chief executive officer of Life Technologies, whose foundation sponsored Battelle’s analysis. “This project has been, and will continue to be, the kind of investment the government should foster…ones with tangible returns.
“The initial dollar investment has already been returned to the government via $49 billion paid in taxes. Now we sit at the dawn of the ‘Genomics Revolution’ and all humankind will reap the benefits as we transfer what we now know about the human genome into major breakthroughs including: new forms of ‘personalized medicine’ and genetics therapy better suited to solving the problems we all care so much about, such as cures for cancer, cardiovascular diseases, Alzheimer’s, HIV/AIDS and many more terrifying diseases. These major advancements are rapidly creating multiple new industries and companies and those companies are creating quality jobs for thousands of people. Life will be even better for all of us thanks to the HGP,” Lucier said.
Battelle Conclusions Simon Tripp, Senior Director of Battelle's Technology Partnership Practice, or TPP, (co-author of the Battelle report with TPP Research Leader Marty Grueber) noted, "What is truly impressive is the extent to which genomics technologies have advanced under the driving force of the human genome sequencing projects. Today high-speed sequencing and advancements in genomic data analysis are empowering unprecedented advancements in biological sciences and being applied to the most pressing issues facing the world—human health and medicine, feeding a rapidly expanding global population, developing advanced biofuels, and protecting the environment. The ability of modern science to address these large-scale issues via genomics stands as testimony to the vision and foresight shown by HGP supporters, leaders and participants."
The four main conclusions reached in the Battelle study are:
The economic and functional impacts generated by the sequencing of the human genome are already large and widespread. Between 1988 and 2010 genome sequencing projects, associated research and industry activity—directly and indirectly—generated an economic (output) impact of $796 billion, created 3.8 million job-years of employment (310,000 jobs in 2010) with personal income exceeding $244 billion (an average of $63,700 in personal income per job-year).
The federal government invested $3.8 billion in the HGP from 1990–2003 ($5.6 billion in 2010 dollars). This investment was foundational in generating the economic output of $796 billion above, and thus shows a return on investment (ROI) to the U.S. economy of 141 to 1, meaning that every $1 of federal HGP investment has contributed to the generation of $141 in the economy.
Overall, however, the impacts of the human genome sequencing are just beginning—large scale benefits in human medicine and many other diverse applications are still in their early stages. The best is truly yet to come.
The HGP is arguably the single most influential investment to have been made in modern science and a foundation for progress in the biological sciences moving forward.
About the Human Genome Project “Sequencing of the human genome represented the largest single undertaking in the history of biological science and stands as a signature scientific achievement,” the Battelle report states. It took just 13 years to sequence human DNA under the Human Genome Project (HGP), an international public project led by the United States, and a complementary private program. Sequencing the human genome involved determining the complete sequence of the three billion DNA base pairs and identifying each human gene. It required advanced technology development and the assembly of an interdisciplinary team of biologists, physicists, chemists, computer scientists, mathematicians and engineers. President Bill Clinton called it “the very blueprint of life” in his January 27, 2000 State of the Union address.
The “Genomics Revolution” in Action Scientists are using the reference genome, the knowledge of genome structure, and the data from the HGP as the foundation for fundamental advancements in science and medicine and the development of applied genomics tools, techniques and technologies.
Genomics also has become a tool for applications in the field of justice and security. For homeland security, the ability to genotype suspicious infectious pathogens and trace their origin is a national security priority. Law enforcement is also using genomics in tracing illegal importation of protected animal species tissue, while the identification of human remains from disasters is another application.
Modern genomics, advanced by the HGP is not only being applied to human biomedical sciences. The “genomic revolution” is influencing renewable energy development, industrial biotechnology, agricultural biosciences, veterinary sciences, environmental science, forensic science and homeland security, and advanced studies in evolution, zoology, anthropology and other academic disciplines.
Next Steps in the “Genomics Revolution” While the primary impacts of the “Genomics Revolution” have not yet been felt in most areas of daily clinical practice, that day is accelerating towards us. The Battelle report lists a number of example advancements we can expect in the future due to the HGP and genomics advancements:
Agricultural productivity to increase considerably, working towards the challenge of feeding the world’s rapidly expanding population in a sustainable manner.
Not only will food availability increase, but the impact of its production on the global environment will reduce as crops and livestock are developed with traits suited to nitrogen use efficiency, no-till agriculture, water use efficiency and reduced waste production.
Currently low-value biomass, especially low-value cellulosic biomass, will be converted into higher-value liquid fuels, energy sources, bio-based chemicals, plastics and materials. These products will increasingly displace petroleum and other fossil-based inputs, contributing to reduced carbon emissions and associated climate and environmental benefits.
An increasingly two-way flow of diagnostics, therapeutics and prevention tools will move between human medicine, veterinary medicine and agriculture as the cost of genomic technologies reduces and the applications of discoveries in one area can be applied to another because of comparative genomics and other genomic advancements.
The legacy of pollution on the planet caused by human activity will be addressed increasingly through the application of genetically engineered, modified or synthetic organisms designed to perform remediation and mitigation functions.
About Battelle As the world’s largest independent research and development organization, Battelle provides innovative solutions to the world’s most pressing needs through its four global businesses: Laboratory Management; National Security; Health and Life Sciences; and Energy, Environment and Material Sciences. It advances scientific discovery and application by conducting $6.5 billion in global R&D annually through contract research, laboratory management and technology commercialization. Headquartered in Columbus, Ohio, Battelle oversees 22,000 employees in more than 130 locations worldwide, including seven national laboratories which Battelle manages or co-manages for the U.S. Department of Energy and the U.S. Department of Homeland Security and a nuclear energy lab in the United Kingdom.
Battelle also is one of the nation’s leading charitable trusts focusing on societal and economic impact and actively supporting and promoting science, technology, engineering and mathematics (STEM) education.
WASHINGTON, April 26, 2011 – A partnership the Defense and Energy departments formed last year to conserve energy in the military is the perfect union to lead the nation in conservation, Deputy Defense Secretary William J. Lynn III said at the White House Energy Security Forum today.
“The key to this partnership is focusing [the Energy Department's] unique knowledge on meeting defense requirements,” Lynn said. “By taking technologies from labs to the battlefield, the Department of Energy can enroll its scientific ingenuity in the service of our nation's most important national mission: national security.”
Additionally, Lynn said, the departments' collaboration can improve the operational effectiveness of the armed forces and serve as a catalyst for the civilian world. “By serving as a sophisticated first user and early customer for innovative energy technologies,” he said, “the military can jump-start their broader commercial adoption, just as we have done with jet engines, high-performance computing and the Internet.”
Deputy Energy Secretary Daniel B. Poneman agreed.
“Through our national laboratory system, the [Energy] department brings tremendous scientific expertise to bear across a whole portfolio of national energy and scientific priorities,” he said. “Coupled with the scale of the Defense Department's operations and its potential to act as a test bed for innovative technologies, this partnership is a crucial vehicle to strengthen our national security and to build a clean energy economy for America.”
Forum speakers noted the importance President Barack Obama has placed on energy conservation, but added that the issue goes back at least as far as the administration of President Richard M. Nixon, who acknowledged that American reliance on foreign oil raises national security risks. NATO's ongoing military operations in Libya and the spike of oil prices due to political unrest in the Middle East is just the latest example of the problem, Poneman said.
Under the departments' agreement, a committee of Defense and Energy leaders will steer investments into conservation-related technologies for U.S.-based installations and battlefield operations, Lynn said. Dorothy Robyn, deputy undersecretary of defense for installations and environment, and Sharon E. Burke, assistant secretary of defense for operational energy plans and programs, are leading those efforts and took part in the forum.
Highlights
Copper is a naturally occurring element.
The Food and Nutrition Board of the Institute of Medicine has developed recommended dietary allowances (RDAs) of 340 micrograms (µg) of copper per day for children aged 1-3 years, 440 µg/day for children aged 4-8 years, 700 µg/day for children aged 9-13 years, 890 µg/day for children aged 14-18 years, and 900 µg/day for adults. This provides enough copper to maintain health. Copper has been found in at least 906 of the 1,647 current or former NPL sites.
Zinc is a naturally occurring element. Zinc has been found in at least 985 of the 1,662 current or former NPL sites.
Zinc is one of the most common elements in the earth's crust. It is found in air, soil, and water, and is present in all foods. Pure zinc is a bluish-white shiny metal.
Zinc has many commercial uses as coatings to prevent rust, in dry cell batteries, and mixed with other metals to make alloys like brass, and bronze. A zinc and copper alloy is used to make pennies in the United States.
Zinc combines with other elements to form zinc compounds. Common zinc compounds include zinc chloride, zinc oxide, zinc sulfate, and zinc sulfide. Zinc compounds are widely used in industry to make paint, rubber, dyes, wood preservatives, and ointments.
Zinc is also a trace mineral nutrient and as such, small amounts of zinc are needed in all animals.
The National Academy of Sciences (NAS) estimates an RDA for zinc of 11 mg/day (men). Eleven mg/day is the same as 0.16 mg per kilogram (kg) of body weight per day for an average adult male (70 kg). An RDA of 8 mg/day, or 0.13 mg per kg of body weight for an average adult female (60 kg), was established for women because they usually weigh less than men. Lower zinc intake was recommended for infants (2-3 mg/day) and children (5-9 mg/day) because of their lower average body weights. The RDA provides a level of adequate nutritional status for most of the population. Extra dietary levels of zinc are recommended for women during pregnancy and lactation. An RDA of 11-12 mg/day was set for pregnant women. Women who nurse their babies need 12-13 mg/day.
Recognizing the importance of the property rights granted by the United States Constitution; affirming the duty of each Member of this body to support and defend such rights; and asserting that no public body should unlawfully obtain the property of any citizen of the United States for the benefit of another private citizen or corporation.
Whereas there is no greater expression of freedom and liberty than the defense of the God-given right of an individual to hold, possess, and use private property;
Whereas John Locke, the great political philosopher lauded by so many of the Founders of this Nation, stated, `the preservation of property [is the reason] for which men enter into society' and that `no [government] hath a right to take their [property], or any part of it, without their own consent, for this would be in effect to leave them no property at all.';
Whereas William Blackstone, whose lectures shaped and helped inspire the Declaration of Independence, Constitution, and primal laws of America, wrote: `So great moreover is the regard of the law for private property, that it will not authorize the least violation of it; no, not even for the general good of the whole community.';
Whereas Samuel Adams, the political writer, statesman, and signer of the Declaration of Independence, declared that our rights included: `First, a right to life; Secondly, to liberty; Thirdly, to property; together with the right to support and defend them.';
Whereas John Adams, diplomat, signer of the Declaration of Independence, and President of the United States, firmly proclaimed: `The moment the idea is admitted into society, that property is not as sacred as the laws of God, and that there is not a force of law and public justice to protect it, anarchy and tyranny commence.' and that `Property is surely a right of mankind as real as liberty.';
Whereas John Adams also affirmed: `Property must be secured or liberty cannot exist.';
Whereas James Madison, author of the Constitution, and President of the United States, announced: `Government is instituted to protect property. . . . This being the end of government, that alone is a just government, which impartially secures to every man, whatever is his own.';
Whereas John Dickinson, signer of the Constitution, stated: `Let these truths be indelibly impressed on our minds: (1) that we cannot be happy without being free; (2) that we cannot be free, without being secure in our property; (3) that we cannot be secure in our property, if, without our consent, others may, as by right, take it away.';
Whereas Thomas Jefferson, the mind behind the Declaration of Independence, and President of the United States, wrote: `The true foundation of republican government is the equal right of every citizen in his person and property and in their management.' and `The first foundations of the social compact would be broken up were we definitely to refuse to its members the protection of their persons and property while in their lawful pursuits.';
Whereas Thomas Jefferson also affirmed: `Charged with the care of the general interest of the nation, and among these with the preservation of their lands from intrusion, I exercised, on their behalf, a right given by nature to all men, individual or associated, that of rescuing their own property wrongfully taken.';
Whereas Noah Webster, the `Father of American Scholarship and Education', stated: `It is admitted that all men have an equal right to the enjoyment of their life, property and personal security; and it is the duty as it is the object, of government to protect every man in this enjoyment.';
Whereas John Jay opined: `No power on earth has a right to take our property from us without our consent.'; and
Whereas Fisher Ames, framer of the Bill of Rights and Massachusetts Representative to the first four Congresses, said: `The chief duty and care of all governments is to protect the rights of property.': Now, therefore, be it
Resolved, That--
(1) these ideals did motivate and continue to justify the drafting of article 1, section 8 of the United States Constitution, which states that it is the responsibility of Congress `to promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries', and the writing of the 5th amendment to our Constitution, which clearly states: `No person shall be . . . deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.';
(2) since every Member of this body has sworn or affirmed to both support and defend the entire Constitution and `to bear true faith and allegiance to the same', any act not in accordance with that oath is both a betrayal of the United States Constitution and a violation of Federal law; and
(3) in the constant pursuit of a more perfect union, all citizens of the United States should remain secure in the possession of private property, and no court, legislature, or executive shall, by predatory law or tyrannical force, obtain the property of any citizen of the United States for the benefit of another private citizen or corporation.
The term ‘‘Indian tribe’’ means any Indian tribe, band, nation, or other organized group or community. 1 The words ‘‘or the Indian tribe’’ were inserted after the words ‘‘State Government’’ in the previous version of this sentence, but the same law also removed the sentence containing those words and replaced it with this new sentence which does not contain the words ‘‘State Government’’. See sections 107(d)(2) and 207(c)(2)(D) of the Superfund Amendments and Reauthorization Act of 1986.
in accordance with section 553 of title 5, United States Code, the President shall by rule promulgate amendments to the hazard ranking system in effect on September 1, 1984. Such amendments shall assure, to the maximum extent feasible, that the hazard ranking system accurately assesses the relative degree of risk to human health and the environment posed by sites and facilities subject to review.
§ 2344. Review of orders; time; notice; contents of petition; service
How Current is This? On the entry of a final order reviewable under this chapter, the agency shall promptly give notice thereof by service or publication in accordance with its rules. Any party aggrieved by the final order may, within 60 days after its entry, file a petition to review the order in the court of appeals wherein venue lies. The action shall be against the United States. The petition shall contain a concise statement of— (1) the nature of the proceedings as to which review is sought; (2) the facts on which venue is based; (3) the grounds on which relief is sought; and (4) the relief prayed. The petitioner shall attach to the petition, as exhibits, copies of the order, report, or decision of the agency. The clerk shall serve a true copy of the petition on the agency and on the Attorney General by registered mail, with request for a return receipt.
Monopoly
Section 2 of the Act forbade monopoly . In Section 2 cases, the court has, again on its own initiative, drawn a distinction between coercive and innocent monopoly. The act is not meant to punish businesses that come to dominate their market passively or on their own merit, only those that intentionally dominate the market through misconduct, which generally consists of conspiratorial conduct of the kind forbidden by Section 1 of the Sherman Act, or Section 3 of the Clayton Act.
Tempers Flare at Environmental Justice Conference, By Brian Hansen
ARLINGTON, Virginia, December 12, 2000 (ENS) - Members of a federal government advisory panel today lambasted President Bill Clinton, Vice President Al Gore and the U.S. Environmental Protection Agency for failing to aggressively combat the scourge of "environmental racism" that they maintain is afflicting many poor communities and communities of color.
District Court Finds Non-Settling PRP Can Intervene in CERCLA Consent Decree
On January 15, 2010, the U.S. District Court for the Northern District of West Virginia held that a PRP's right to contribution under CERCLA is a significantly protectable interest permitting a non-settling PRP to intervene as of right to challenge a
consent decree between the federal government and a settling PRP.
United States v. Exxon Mobil Corp., No. 08-124
On January 20, 2010, the United States District Court for the Southern District of Illinois granted a CERCLA PRP's motion for leave to file an amended pleading seeking cost recovery under CERCLA § 107(a),
Second Circuit Affirms CERCLA Veil-Piercing to Impose Liability on Former Parent
In an unpublished opinion issued on December 10, 2009, the U.S. Court of Appeals for the Second Circuit affirmed a plaintiff corporation's recovery of CERCLA response costs from a company whose predecessor had once been the plaintiff's parent. Rochester Gas and Elec. Corp. v. GPU, Inc., No. 09-0482-cv, 2009 WL 4673916 (2d Cir. Dec. 10, 2009).
Tenth Circuit Upholds Remand of Class Action Involving “CERCLA Quality Cleanup”
On September 4, 2009, the U.S. Court of Appeals for the Tenth Circuit affirmed a lower court's remand to state court of a state law class action involving injuries allegedly arising out of contamination at a state-remediated site, holding that neither the Class Action Fairness Act (“CAFA”) nor CERCLA provided a basis for federal jurisdiction. Coffey v. Freeport McMoran Copper & Gold, 2009 U.S. App. LEXIS 19996 (10th Cir. Sep. 4, 2009).
Natural Resource Damage Claims Insufficient for Federal
Jurisdiction
On August 21, 2009, the U.S. District Court for the District of the Virgin Islands held that a territory's common law claims for natural recourse damages against manufacturers of dry cleaning chemicals for a site on the National Priorities List are not subject to federal jurisdiction. Mathes v. Vulcan Materials Co., 2009 U.S. Dist. LEXIS 74736 (D.V.I. Aug. 21, 2009).
Destruction of Samples Leads to Preclusion of Contamination Evidence
On May 21, 2009, the U.S. District Court for the District of Connecticut held that when a consulting firm hired by a CERCLA plaintiff to take soil samples did not preserve the samples or the analytical data, and the property was remediated before other parties could sample, plaintiff is precluded from offering any evidence based on the destroyed samples. Innis Arden Golf Club v. Pitney Bowes, Inc., 2009 U.S. Dist. LEXIS 43588 (D. Conn. May 21, 2009).
“Where a court failed to observe safeguards, it amounts to denial of due process of law, court is deprived of juris.” Merritt v. Hunter, C.A. Kansas 170 F2d 739.
Legal Issues: Practice Area Definitions
Below is a reference guide to personal and business legal issues.
The State Bar's commitment to expanding, supporting and improving the delivery of legal services to low- and moderate-income Californians is carried out by the Office of Legal Services (OLS). OLS has two components, the Center on Access to Justice and the Legal Services Trust Fund Program.
The Center on Access to Justice works to increase access to justice through:
The Legal Services Trust Fund Program is the grant-making arm of the Office of Legal Services.
In accordance with legal requirements and the State Bar Rules, the Trust Fund Program administers revenue from the following sources that help fund civil legal services programs serving indigent Californians:
Program staff works with the Legal Services Trust Fund Commission , comprised of 21 voting members and three nonvoting judges, who are responsible for determining applicant eligibility, monitoring recipient compliance and maximizing revenue. In addition to monitoring grantee compliance, the program is responsible for bank and attorney compliance with IOLTA requirements
Aranda Access to Justice Award
(Annual award for a California judge who has demonstrated a long-term committment to equal access in the courts. For information, call 415-538-2534)
The Office of Professional Competence is responsible for administering programs that set and maintain high standards of attorney professional responsibility. Prevention of lawyer misconduct is a primary goal, and the programs are intended to support the State Bar's goals of public protection and the effective administration of justice. A variety of programs and activities are administered by this office:
Angela Marlaud
Office of Professional Competence, Planning and Development
State Bar of California
180 Howard Street
San Francisco, CA 94105-1639
(415) 538-2116
(415) 538-2171 (Fax) angela.marlaud@calbar.ca.gov
ATTORNEY SURROGACY
The State Bar Attorney Surrogacy program provides a model agreement for the designation of an attorney to administer a lawyer's law practice in the event that the lawyer becomes disabled or incapacitated. The agreement details the typical responsibilities of the lawyers involved in an "Agreement to Close Law Practice in the Future" and is intended to facilitate compliance with Business and Professions Code Section 6185 and relevant provisions of the Probate Code.
Pacific Legal Foundation is the oldest public interest legal organization that litigates for property rights, limited government, and free enterprise.
www.pacificlegal.org/ -
College of Public Interest Law
Pacific Legal Foundation introduced its College of Public Interest Law in 1979, offering fellowships to outstanding law school graduates who desired hands-on experience in public interest litigation. Since that time, 73 young attorneys have passed through the program on their way to private practice, public agency law, or a permanent position with Pacific Legal Foundation. While matriculation in the program has varied over time, PLF recently committed to a long-term policy of offering three Fellowships each Fall.
Each Fellow is paired with an experienced attorney mentor, who assists the Fellow as he or she participates in hands-on litigation, including lead attorney responsibilities in both trial level and appellate cases. Fellows also prepare a law review article of publishable quality, as a means to increase their own in-depth expertise of the legal issues which they litigate, as well as adding to the legal scholarship frequently relied on by judges. Fellows also receive on-site training in both substantive legal doctrine and the practice of law for MCLE credit.
Starting salary is $55,000, plus benefits. Fellows also are entitled to defer payment of principal and interest on subsidized student loans and to defer payment of principal on unsubsidized student loans.
Recruitment
PLF begins the recruitment process 13 months before the September start date for new Fellows. Fellowship announcements are posted on the career development office websites of all accredited law schools nationwide. For those schools that lack interactive websites, PLF mails or faxes the announcements. PLF also e-mails announcements to the leaders of all Federalist Society student chapters nationwide and sends open letters to the chambers of judges whose clerks might be good matches for a fellowship. Finally, PLF avails itself of the resources of our sister organizations, sending job announcements through the Institute for Justice's Human Action Network, the Heritage Foundation Job Bank, and the Institute for Humane Studies Liberty Guide/ Job Board. The announcements are re-posted and re-sent as necessary though the Fall and Winter.
Hiring Process
Applicants are required to submit a resume and a personal statement explaining why they are interested in PLF in general, and in a postgraduate fellowship in the College of Public Interest Law in particular. The applicants also must describe what distinguishes themselves from a typical or average student at their school. Once received, applicant materials are forwarded to the hiring committee. Members of the committee review the resumes and personal statements and contact the most promising applicants with a request for a writing sample and references. Applicants who demonstrate outstanding research and writing skills are invited to interview. The interviews last a full day and include individual discussions with members of senior management, staff attorneys, current Fellows, and human resources. The hiring committee then meets and decides which applicants will be extended an offer. This is an ongoing process until all three slots are filled.
PLF has made its mark as the nation's leading freedom fighter by winning important legal precedents in state and federal courts. Because it chooses cases where constitutional rights are at risk, PLF has made repeat appearances before the United States Supreme Court—and won several major cases—a record of success unmatched by any other public interest legal organization.
Nollan v. California Coastal Commission (1987) One of the most important property rights decisions in the Supreme Court's history, Nollan outlawed an egregious form of “shakedown” by land-use regulators; specifically, it said government may not condition the granting of a building permit on the landowner making some payment or surrender of property that has no connection to the impact of the proposed building project.
Keller v. State Bar of California (1990) A First Amendment case holding that a trade or professional organization to which professionals are legally bound to belong may not use their mandatory dues to fund ideologically based lobbying.
Suitum v. Tahoe Regional Planning Agency (1997) This ruling stopped regulators from demanding that an elderly, wheelchair-bound widow sell her minuscule transferable development rights in a nonexistent market before being able to seek judicial relief for denial of her right to build a home.
Palazzolo v. Rhode Island (2001) This ruling held that government is not relieved from its Fifth Amendment obligation to provide compensation for excessive regulations on private property merely because the property has changed hands since the regulations first took effect. PLF defended landowner Anthony Palazzolo who challenged the Rhode Island Coastal Resources Management Council.
Rapanos v. United States (2006) This decision narrowed the scope of federal Clean Water Act jurisdiction, so that landowners who are not close to “navigable waters” may not be subjected to federal micro managing of their property.
Parents Involved in Community Schools v. Seattle School District and Meredith v. Jefferson County Board of Education (2007) Held that school districts that voluntarily adopt student assignment plans that rely on race to determine which schools certain children may attend, violate the Equal Protection Clause of the United States Constitution. As amicus, PLF attorneys participated as second chair at oral argument assisting Meredith's attorney.
VA farm family battles EPA attempt to seize control of their land
Chesapeake, VA; April 11, 2011 : James Boyd and his family have owned the Smith Family Farm in Chesapeake for more than two decades, but the U.S. Environmental Protection Agency is trying to claim that it, not the Boyds, has effective control over their private property.
Today, the Boyds filed an appeal with the U.S. Fourth Circuit Court of Appeals, asking the court to overturn the EPA's claim that the Boyds' land is “wetlands” covered by the federal Clean Water Act and is therefore subject to command and control oversight by federal bureaucrats.
After having paid dearly, out of pocket, for eleven years to defend themselves against the EPA, the Boyd family is now represented, free of charge, by attorneys with Pacific Legal Foundation. Donor-supported PLF is a legal watchdog that litigates, pro bono, for limited government, property rights, and a balanced approach to environmental regulations, in courts nationwide.
“By its high-handed treatment of the Boyd family and their property rights, the EPA is once again demonstrating that it is a bureaucracy that's out of control,” said PLF attorney Damien Schiff.
"Defending against the EPA's enforcement action has cost our family many hundreds of thousands of dollars in legal and expert witness fees."
-- James Boyd “EPA claims that it can dictate what kind of land use and farming practices the Boyds engage in, because the property is supposedly ‘wetlands' subject to federal jurisdiction,” said Schiff. “But the agency has not met the legal requirements to show that the Boyds' property in fact falls under federal jurisdiction.
“As the Supreme Court has clearly ruled, private property isn't covered by the federal Clean Water Act without a significant connection between water on the property and some ‘navigable' water, such as a river, lake, or ocean,” Schiff continued. “Despite repeated visits to the Boyds' farm, at taxpayers expense, to collect data in support of its allegations, the EPA hasn't shown any such connection between the Boyds' farm and any navigable water. In fact, the farm is half a mile away from the nearest navigable water – a tributary of the James River.
“So the EPA is breaking the law by issuing orders to the Boyds about their own private property,” said Schiff.
Flouting the Supreme Court, EPA acts like a national zoning board
EPA is violating the U.S. Supreme Court's 2006 landmark ruling in Rapanos v. United States – a case brought by PLF attorneys. Rapanos overruled federal attempts to use the Clean Water Act as an excuse to assert control over private property wherever water was found. Although the ruling articulated two tests for federal jurisdiction, the majority reaffirmed that the Clean Water Act covers only navigable waters and property with significant connections to them.
“The Supreme Court has clearly said that federal officials don't have a license to micromanage private property wherever they might find water,” said Schiff. “But, as the Boyds have found out, the EPA doesn't like that restriction. The agency is still trying to act as a national zoning board that can issue orders to property owners virtually anywhere. We're asking the Fourth Circuit to put a stop to this lawlessness and force EPA to let the Boyds alone.”
EPA targets traditional farming practices on Smith Farm
Farming families from early American times have been cutting down trees on their land to create paths and clearings. But as part of its illegal claim of control of the Boyds' farm, EPA is trying to punish them for taking down trees without an EPA permit. It has also accused them of discharging a “pollutant” because rain caused silt to collect in the bottom of ditches on their land.
“Because the Boyds' property doesn't have a significant connection to navigable waters, EPA has no business telling them what to do in the first place,” said Damien Schiff. “But even if it had jurisdiction over their land, the orders it is issuing are outrageous. Essentially, EPA is trying to criminalize land use practices that have been standard for farmers in Virginia and throughout America, for centuries.
“EPA is also punishing a family that went the extra mile to avoid any environmental problems and satisfy any possible regulatory concerns,” said Schiff.
The Boyds have owned the 300-acre Smith Farm since 1987, and the property was farmed for at least half a century before that. The troubles with the EPA started after the Boyds made some reasonable efforts to keep their farm viable after a series of events caused seasonal water buildup.
First, in the early 1990s, construction of I-664 had a damming effect on the adjacent land. Later, a large tract of nearby land was clear-cut, allowing rain water to sheet across the Boyds' land. These conditions created seasonal water buildup, hampering the historical uses of Smith Farm.
EPA punishes the Boyds even after they went the extra mile to be environmentally sensitive
To remove excess water, the Boyds' proposed digging some drainage ditches (called “Tulloch” ditches for the court case that held they are a permissible form of drainage). This was before the Rapanos decision had come down, affirming that the Clean Water Act applies only to properties with a clear connection to navigable waters. So, the Boyds took extra precautions to make sure they would not run afoul of any federal concerns. They hired a consultant who had worked for the Army Corps of Engineers for eight years. He produced a letter from the Corps that outlined the procedures to dig such ditches without the need of a special federal “dredge and fill” permit.
Before the Boyds started any land clearing in order to build paths to get to the sites of the ditches, the Boyds met with the Corps and showed the Corps the designs for what they proposed to do. They were advised that they did not need any permits for their project. The Boyds went a step further and asked Corps officials to inspect the site, specifically to ensure that all of their work was in compliance with the law. Pursuant to the Boyds' request, the Corps inspected the site on five separate occasions throughout the ditch excavation project. Despite the Boyds' specific request that the Corps advise them if the inspector observed any problems with the project – and the Boyds offer to cease work if any problems arose – the Corps raised no objections to the work being done, at any time during the project.
However, when the project was completed, the EPA suddenly, without notice, informed the Boyds that it was assuming jurisdiction of the project as a federally controlled “wetland.” EPA officials chose to inspect the site two days after Hurricane Dennis had inundated the area, in 2005. Nine months later, EPA issued a notice alleging multiple violations of the Clean Water Act, including filling wetlands without a permit (i.e., distributing wood chips on the site) and discharging a pollutant when rain caused silt to collect in the bottom of the ditches.
During the hearings that followed, the Boyds learned, for the first time, that the EPA and the Corps had been discussing their ditching project the entire time it was under way. Yet despite the Corps knowing that the Boyds were relying upon their inspections to ensure their full compliance with the law, neither the Corps nor the EPA advised the Boyds of the peril awaiting them.
Fighting EPA's power play has cost the Boyds hundreds of thousands of dollars
When no reconciliation with EPA could be reached, the case was brought before an EPA administrative law judge who held a lenghty trial-like hearing. Then, the EPA's court reporter was unable to provide a transcript of the hearing, so the judge ordered a retrial of the case. These hearings, as well as a third hearing, in each instance lasting six days, along with the appeals and the ensuing litigation, have cost the Boyds dearly. The Boyds have repeatedly tried to settle the case, at one point even offering to fund the building of an entire oyster reef in the nearby Elizabeth River, an offer that would have had substantial benefit to local water quality.
Although the maximum penalty that could be assessed against the farm was $105,000, EPA has steadfastly refused to settle the case. The administrative law judge ultimately ruled against the Boyds, and the EPA Appeals Board upheld that ruling. "Defending against the EPA's enforcement action has cost our family many hundreds of thousands of dollars in legal and expert witness fees, which we can ill afford and which have threatened us with the loss of our property, not to mention the tremendous waste of taxpayers' dollars by the EPA in pursuing this action" said James Boyd.
Statement by James Boyd: The rule of law is at stake
James Boyd issued this statement: “Defending against the EPA's allegations has required my family to endure the financial and emotional hardships of three separate hearings, each of six days duration, and two separate hearings before the EPA's Appeals Board at its headquarters in Washington, D.C. The legal wrangling has already spanned over eleven years and has required the research, drafting, preparation, and filing of over 240 motions, counter motions and briefs.
“For all of this effort and expense, the end result of this litigation has been to have my family found in violation of the Clean Water Act for having scattered wood chips on our property! Those wood chips were generated when debris from indigenous vegetation was chipped up as a necessary part of clearing very limited areas in the woods on our farm to gain access to excavate ditches. The excavation of those ditches was entirely legal. “This case is about freedom, property rights, and the rule of law,” Boyd continued. “It is fundamental that everyone, citizens and the government alike, follow the rule of law. Our family followed the rule of law. The excavation of our Tulloch ditches was entirely legal. We fully complied with the rules and regulations governing that activity. It is ironic and very disturbing that it is the EPA that has violated the law.
“In our case, the EPA has twisted regulatory definitions to regulate that which is clearly legal,” Boyd noted. “On behalf of everyone's liberty and property rights, we felt we had no choice but to fight back. But it has been a grueling and expensive experience which we can ill afford, nor to which any law-abiding citizen should be subjected. When a private citizen fails to obey the rule of law, that's bad for society. When a federal agency like the EPA, with all of its power and resources, fails to obey the rule of law, that's dangerous. Such abuse undermines the whole system under which our society operates. We are so very grateful to the PLF attorneys, and PLF's donors, for coming along side us to stand up to EPA's oppression.”
Said PLF attorney Damien Schiff: “EPA is branding scattered wood chips, and silt, as ‘pollution,' as if we were talking about factory runoff or nuclear waste. This is outrageous. But even more fundamentally, EPA has no business dictating to the Boyds on their property in the first place.
“EPA was set up to protect us from real pollution threats, not to harass Americans from America's farmers and to antagonize law abiding citizens,” Schiff continued. “The EPA has mutated into a toxic danger to property owners and constitutional rights – and the courts must call a halt to the abuses by this rogue agency.”
About Pacific Legal Foundation
Donor-supported Pacific Legal Foundation is the nation's leading legal watchdog organization that litigates, pro bono, for limited government, property rights, free enterprise, and a balanced approach to environmental regulations. View a brief video about PLF's history and mission, including comments by former U.S. Attorney General Edwin J. Meese III, at: http://www.youtube.com/watch?v=HnBSlRQwxKU.
In theory, RDAs spearhead blight removal. In fact, they divert billions of dollars from traditional services, such as schools, parks, and firefighting; use eminent domain to seize property for favored developers; and run up California's debt to pay those developers to construct projects of dubious public value, such as stadiums and big-box stores. Most Californians have long been unaware that these agencies exist. As the activist group Municipal Officials for Redevelopment Reform puts it, RDAs constitute an “unknown government” that “consumes 12 percent of all property taxes statewide,” is “supported by a powerful Sacramento lobby,” and is “backed by an army of lawyers, consultants, bond brokers and land developers.”
...Redevelopment project areas are supposed to expire eventually, but like most government programs, they rarely do. The agencies repeatedly extend the life of the areas and continue floating debt, managing development decisions, and spending tens of millions of dollars to pay the planners, consultants, developers, and attorneys who specialize in the redevelopment process and are an effective lobby to ensure that it never dies. The redevelopment machine has also steadily expanded its footprint. “During the early years of California's redevelopment law, few communities established project areas and project areas typically were small—usually 10 to 100 acres,” the state's Legislative Analyst's Office recently reported. “Over the last 35 years, however, most cities and many counties have created project areas and the size of project areas has grown—several cover more than 20,000 acres each. . . . In some counties, local agencies have created so many project areas that more than 25 percent of all property tax revenue collected in the county [is] allocated to a redevelopment agency, not the schools, community colleges, or other local governments.”
I n Sacramento, Governor Jerry Brown is planning to close California's $26.6 billion structural deficit through spending cuts and tax extensions. Opposition has been spirited but less contentious than expected, probably because of the size of the budget hole. But one item of Brown's plan—something that would save about $1.7 billion annually—has generated heated debates between local officials and the new administration. The governor has proposed eliminating California's approximately 400 redevelopment agencies (RDAs).
In theory, RDAs spearhead blight removal. In fact, they divert billions of dollars from traditional services, such as schools, parks, and firefighting; use eminent domain to seize property for favored developers; and run up California's debt to pay those developers to construct projects of dubious public value, such as stadiums and big-box stores. Most Californians have long been unaware that these agencies exist. As the activist group Municipal Officials for Redevelopment Reform puts it, RDAs constitute an “unknown government” that “consumes 12 percent of all property taxes statewide,” is “supported by a powerful Sacramento lobby,” and is “backed by an army of lawyers, consultants, bond brokers and land developers.”
As of late March, the outcome of Brown's battle against the RDAs was in question, with the state legislature lacking the votes to approve it. Too bad. It's high time that the agencies were shut down.
California's redevelopment agencies got their start in 1945, when the state legislature authorized their creation to combat urban decay. At the time, politicians nationwide touted urban-renewal projects as a way to jump-start development in impoverished inner cities. Today, many urbanists recall these projects as a national travesty, a failed experiment in top-heavy government and liberal social engineering that obliterated neighborhoods, eroded property rights, gave developers downtown land on the cheap, uprooted city dwellers, and exacerbated urban problems.
The California law lets a city establish a redevelopment agency, governed by a board appointed by the city council—though in almost every case, the board members and the council members are one and the same. (A county, too, can create an RDA, through its board of supervisors.) The agency's first task is to find urban blight. As a state senate committee explains it, “Before redevelopment officials can wield their extraordinary powers . . . they must determine if an area is blighted.” But the definition of blight is very broad: it can include not just unsafe buildings but also “incompatible land uses,” stagnant property values, either excessive urbanization or insufficient urbanization, and lack of modern infrastructure. So if a redevelopment agency wants to redevelop a particular area, it will find a definition that suits that area; and once it issues a blight finding, the courts will rarely rebuke it.
After blight is found, the agency can start using those “extraordinary powers.” For instance, Michael Dardia explained in a 1998 report for the Public Policy Institute of California, RDAs “can assemble property for sale to private parties and can use eminent domain if necessary to acquire private property that they want to sell, often at a discount, to a private developer.” They can also offer incentives to that developer, subsidizing the construction of stadiums, hotels, auto malls, and retail stores, to take some common examples.
To pay for these subsidies, an RDA employs a novel mechanism called “tax-increment financing.” First, the agency issues debt—unlike city governments, it isn't required to hold a public vote first—and bestows the borrowed money on the developers of its choice, who proceed to build within the designated “project area.” As property-tax revenues in the area rise, state law gives the RDA the entire increase in revenues; the agency deserves it, the thinking goes, for making the stagnant area revive. The agency uses that tax increase, called the “increment,” to pay off its debt. This arrangement allowed RDAs to amass nearly $30 billion in debt by the end of the 2008–09 fiscal year, according to the state controller's latest numbers.
But what happens to the public schools, which depend on property taxes to survive? By law, the state government must use its general fund to compensate the schools for the money that the RDA has diverted. That comes to a lot of money: again, RDAs consume about 12 percent of all statewide property taxes, and over half of that take would otherwise have gone to the schools. What this boils down to is that—at a time when the state must save billions—taxpayers throughout California are subsidizing the agencies, which in turn are subsidizing developers.
Redevelopment project areas are supposed to expire eventually, but like most government programs, they rarely do. The agencies repeatedly extend the life of the areas and continue floating debt, managing development decisions, and spending tens of millions of dollars to pay the planners, consultants, developers, and attorneys who specialize in the redevelopment process and are an effective lobby to ensure that it never dies. The redevelopment machine has also steadily expanded its footprint. “During the early years of California's redevelopment law, few communities established project areas and project areas typically were small—usually 10 to 100 acres,” the state's Legislative Analyst's Office recently reported. “Over the last 35 years, however, most cities and many counties have created project areas and the size of project areas has grown—several cover more than 20,000 acres each. . . . In some counties, local agencies have created so many project areas that more than 25 percent of all property tax revenue collected in the county [is] allocated to a redevelopment agency, not the schools, community colleges, or other local governments.”
I s there that much blight in California, or is something else going on here? History provides a clue. If blight removal were really the agencies' mission, then you'd expect California's redevelopment expansion to have taken place between the 1940s and the 1960s, when there was more real blight. Instead, more than half of the state's RDAs were formed after 1978, when Proposition 13, by capping property-tax increases, threatened to impose spending limits on cities. “Since the property tax constraints imposed by Proposition 13 in 1978, local governments have been searching for new sources of revenue,” Dardia wrote. Redevelopment agencies were a windfall—not a way to revamp run-down areas but a way to divert money from the state.
The redevelopment industry keeps using the old urban-uplift rhetoric to justify its powers and budgets. “The abandoned gas station, dilapidated housing project, and a vacant strip mall that is continually vandalized are all examples of deteriorated and blighted areas,” says the California Redevelopment Association (CRA), the lobby that represents the RDAs. “Revitalization of these areas does not happen on its own. . . . Redevelopment serves as a catalyst for private investment by providing the initial plan and seed money that ultimately breathes new life into areas in need of economic development and new opportunity.” (The CRA, by the way, is funded mainly by member agencies, meaning that it amounts to a taxpayer-financed lobby.)
More and more, though, RDAs are dispensing with the pretense of fixing blight. Many are focusing less on tougher, older areas and instead are trying to lure new businesses to “greenfields”—lots on the outskirts of town. Some officials have placed their entire cities in redevelopment areas. And agencies explicitly advance various goals beyond blight removal, claiming to boost economic development, provide affordable housing, reenergize downtowns, and create hundreds of thousands of jobs in the process.
D o these lofty growth claims hold water? Redevelopment officials arrive at them by taking credit for every new job and every new economic activity in a redevelopment area. But that isn't a plausible boast. Crunching the numbers, Dardia found that after correcting for local real-estate trends, “redevelopment projects do not increase property values by enough to account for the tax increment revenues they receive. Overall, the agencies stimulated enough growth to cover just above half of those tax revenues. The rest resulted from local trends.”
Further, RDAs typically engage in “growth capture,” waiting until an area is on the upswing and then swooping down and grabbing properties on behalf of developers. This tactic helps the agencies, which receive a bonanza from the area's already-rising property taxes, but it does nothing to improve downtrodden urban cores. Old Town Pasadena, which has become lovely, would no doubt have revived without redevelopment cash.
Redevelopment is also based heavily on the mistaken premise that big, often tourist-oriented projects—stadiums, theme parks, Costcos—are the key to the economic growth of cities. In 1997, the Brookings Institution's Roger Noll and Andrew Zimbalist debunked the idea that stadiums in particular draw much revenue to a region, concluding that “a new sports facility has an extremely small (perhaps even negative) effect on overall economic activity and employment. No recent facility appears to have earned anything approaching a reasonable return on investment.” Nevertheless, in Sacramento, where basketball's Sacramento Kings are planning a move to Anaheim, officials are reviving talks of a new arena to lure another team—a plan that may include redevelopment and tax subsidies.
Though the RDAs' claims are inflated, it's certainly true that they can increase economic activity in the areas they target. But even that isn't necessarily a good thing because they're sucking most of that growth away from other places in California. As Brown explained in his budget proposal, “There is little evidence that redevelopment projects attract business to the state. Studies indicated most of the business development is simply shifted from elsewhere in the state.”
Southern California residents don't care whether they buy their Hondas in the Cerritos Auto Mall or up the 605 freeway in El Monte. California's cities care, though, and for good reason: they keep one cent of every dollar spent within their borders. That's a powerful incentive for them to want retail centers rather than, say, factories. And so cities offer rich incentives to entice and satisfy such companies, which in turn often play the cities for fools. In 1999, Costco demanded that the city of Lancaster condemn a nearby competitor, the 99 Cents Only Store, or else Costco would move to neighboring Palmdale. The 99 Cents Only Store and the Costco were in the same shopping complex; both were in the same condition. Nevertheless, Lancaster's redevelopment agency proceeded to condemn the 99 Cents Only Store, whose owner fought the condemnation and won—a rare victory over an RDA in court. Eventually, the city gave Costco land in a public park.
T he biggest problem with the entire redevelopment model is that central planners—whether they're working in European bureaucracies or in stucco-clad government buildings in Southern California—can rarely predict consumer demand with accuracy. Consider some of the absurd projects that the RDAs have embraced. When I covered Orange County politics in 2005, redevelopment officials in the older, working-class city of Garden Grove had decided that their city needed to be a world-class resort, like nearby Anaheim. So they were trying to condemn an entire neighborhood of well-kept 1960s-era suburban houses and market the land to a yet-to-be-determined theme-park developer. The city council eventually halted the plan after residents protested at City Hall.
That project went away, but the local RDA retained the power to pursue equally bad ideas. “Even in a city that has entertained the most improbable of dreams, the latest plan to woo tourists and big bucks to Garden Grove is off the charts,” the Los Angeles Times reported in 2007. “An Indian tribe has formally proposed building a Las Vegas–style casino complex just up the road from Disneyland in the latest and far and away most lavish plan for making Garden Grove a tourist destination. The Gabrielino-Tongva Tribe's proposal calls for two opulent casinos housing 7,500 slot machines, two upscale hotels, a 10,000-seat stadium and—the topper—a promise of a college scholarship for every high school graduate in Garden Grove.” Other plans were sillier still: “One developer proposed a Latino theme park, another pitched a replica of the London Bridge across a fake river, and Middle Eastern investors wanted to build a museum dedicated to the late King Hussein of Jordan.”
Even in the projects that redevelopment supporters like to highlight, it's hard to see the benefits. Sacramento mayor Kevin Johnson wrote in the Sacramento Bee that “redevelopment has also helped strengthen the core of our city, the downtown. For example, K Street is now attracting a wide range of entertainment and restaurant choices to boost the economy.” My office is a block from K Street, which has long been the city's prime redevelopment focus, so I can testify that it remains a symbol of downtown blight, riddled with vagrants and vacant storefronts. As the Sacramento Press reported in 2009, “With a 45 percent ground floor vacancy rate, K Street's health is currently struggling. In an effort to help the street improve the blocks between 7th and 13th streets, the city has been pumping millions upon millions of dollars into projects to then watch little to no improvements in foot traffic, empty store fronts and public safety. The list of subsidized projects is getting longer every year.”
T he RDAs' diverted funds and failed promises are reason enough to get rid of them, but their abuses of property rights are the last straw. After the U.S. Supreme Court's controversial 2005 Kelo decision allowed the use of eminent domain for economic-development purposes, most states followed the court's additional advice and reformed their eminent-domain rules to make it harder for redevelopment agencies to drive property owners off their land. California failed to pass serious reform, however, and its RDAs continue to confiscate private property. In 2002, for example, the city of Cypress's RDA invoked eminent domain to seize property owned by the Cottonwood Christian Center and transfer it to retail stores. City officials pointed out that churches, unlike stores, don't pay many taxes. After years of legal wrangling, the city and church cut a deal that allowed both retail development and a church.
Such proceedings are manifestly unfair, of course. But they also wreak economic damage by diminishing property rights and confusing expectations. I once interviewed a developer who owned a strip mall in Southern California. He wanted to rebuild it, but it was in a redevelopment area, so he had no secure property rights. Sure, he could invest a few million dollars in the project, but because he feared that the city would take the property away, he sat on it. I remember another area that was being threatened by eminent domain. Activity stopped in the neighborhood—until the day after the local RDA's plan was halted, when owners went back to work improving their properties and expanding their businesses.
I f cities want to spur economic growth, they have a far more effective approach at their disposal—one pioneered by Anaheim. In the 1970s, the city's redevelopment agency bulldozed part of the seedy but historic downtown, planning to create a new downtown district by luring new companies that would build high-rises and other attractions. But it's easier to demolish old buildings than it is to find investors to put up new ones, so the result was parking lots and vacant land. The downtown remains largely a ghost town more than three decades later.
But starting in 2002, under the leadership of former mayor Curt Pringle and current mayor Tom Tait, the city embraced a freedom-friendly approach to land use. Their target was an area called the Platinum Triangle, a collection of one-story warehouses that they wanted to become a new downtown with high-rise condos, hotels, restaurants, and shopping. Instead of taking the redevelopment approach—creating a project area and then forcing businesses to leave—the city “upzoned” the Triangle, allowing far more uses for the land. This was a great stroke of luck for the area's businesses: they could stay if they chose (the city outlawed eminent domain for economic development), but most sold out to developers, who paid handsome sums for land that was now zoned for more valuable residential and office uses. Then the city encouraged the developers to bring their plans to City Hall. The area boomed with high-rises constructed in a couple of years (though it did hit hard times after the real-estate bubble burst).
The lesson: deregulation and private enterprise work better than central planning. Developers don't need subsidies and eminent domain to build in older cities; they need the relaxation of burdensome government rules and a reduction in taxes, which tend to be higher in urban cores. And they need the freedom to develop their own plans, rather than blueprints from city-hall planners.
P rior to Governor Brown's proposal, state legislators had made many efforts to grab some of the RDAs' funds. Brown, far more radically, would dissolve the agencies entirely and create successor agencies to pay off the existing bond debt. It's a welcome idea, though Brown has also proposed making it easier for localities to hike taxes and borrow by lowering the voter-approval threshold from a two-thirds majority to 55 percent. The last thing California cities need, given their propensity to spend money on outsize pay and pension packages for public employees, is increased authority to raise taxes.
The agencies haven't taken Brown's proposal lying down. Mere days after the governor announced it, the Los Angeles Times reported, “Los Angeles' redevelopment agency board hastily voted Friday to commit $930 million of agency money to the city to carry out redevelopment projects for years to come—presumably moving the money out of the state's reach. The move, which would have to be approved by the Los Angeles City Council, would tie up the money the agency expects to take in via property taxes through 2016 and keep the funds from reverting to counties and [the] school district as called for in the governor's plan.” Similarly, news reports across the state depicted RDAs spending feverishly on half-baked projects—including those that council members had previously shown little interest in funding—simply to tie up money. The projects included the funding of fast-food restaurants, shopping malls, and a skating rink. Whether the state's legislature or courts will intervene remains to be seen.
What also remains to be seen is whether the California State Assembly, which didn't approve Brown's proposal in March, will ever see reason. Perhaps the assembly should remember the words of Johnson, the Sacramento mayor, who has praised redevelopment projects as “magical things.” He speaks more truly than he knows. Emblematic of the magical thinking that has smothered California's finances, RDAs are unfair, uneconomical, and ineffective. Brown is right to try to eliminate them.
Steven Greenhut is director of the Pacific Research Institute's Journalism Center in Sacramento.
Boxer/Feinstein bill moves forward
Written by George Gale
Friday, 06 May 2011 09:30
(Earthquake preparedness bill moves forward)…The Bill was authored by Senators Barbara Boxer and Diane Feinstein, and it was submitted in March.
This week the Bill, S 646, unanimously passed the Senate Commerce Committee. The bill will reportedly help improve preparedness and monitoring of earthquakes and windstorms, including investing in research into advance warning systems, improved building codes and other efforts to reduce risks and damage from natural disasters. The bill is called the National Hazards Risk Reduction Act of 2011. The bill reauthorizes the National Earthquake Hazards Reduction Program originally authorized in 1977.
The FundBook, a free monthly publication that empowers cities and counties to pursue an increasing array of federal funding opportunities to meet their capital needs. You can read more about funding opportunities here.
Last month, Senator Barbara Boxer, Chairman of the Senate Committee on Environment and Public Works, announced that her Committee will soon begin assembling their version of the next Water Resources Development Act (WRDA). This legislation, which is supposed to be reauthorized every two years, authorizes the Army Corps of Engineers to construct critical flood protection, navigation, and ecosystem restoration projects nationwide.
In a bipartisan letter to their Senate colleagues , Boxer and Senator Inhofe, the Ranking Committee Member, asked that each office submit their highest priority water infrastructure projects to the Committee for consideration no later than March 28th. The Senators' letter indicates that the Committee is serious about moving a bill out of committee and to the whole Senate for consideration sometime this spring.
WRDA is a unique piece of authorization legislation because Congress uses it to provide line-item authorizations for individual projects instead of authorizing a lump sum that enables the Corps to invest wherever it chooses. Once authorized, lawmakers can then appropriate funds for these activities in annual Energy and Water Development Appropriations spending bills. Depending on an authorized project's purpose, it is typically subject to cost-sharing requirements that range from 20 percent to 100 percent non-federal share.
It should be noted that not all water resources projects are eligible for inclusion in WRDA. Projects typically included in WRDA are those with completed Chief of Engineers reports, modifications to existing Corps of Engineers' projects, study authorizations for new projects, and miscellaneous projects consistent with the Corps' program and demonstrating a federal interest.
Interest in authorizing new studies and projects has likely prompted consideration of a new WRDA bill in the 112 th Congress, as the legislation provides much-needed momentum to help state and local governments commit funds to major water system restoration and flood control projects across the nation. Congress last passed that the last Water Resources Development Act in 2007 with overwhelming bipartisan support, overriding President Bush's veto. But lawmakers have been unable to a reauthorization since then.
Because it's difficult to assess when Congress will pass the next authorization bill, many cities and states have taken issues into their own hands instead of waiting for federal support, funding repairs and expansions through state and local bond referendums or with the support of innovative new public-private partnerships.
Boxer and Inhofe sent their joint letter last month despite the fact that the House and Senate agreed to a two-year earmark moratorium and President Barack Obama vowed to veto any bill with funding for the parochial projects. The letter, which doesn't mention the word earmark, states that: "Congress has a constitutional role to play in determining spending priorities for the Army Corps of Engineers Civil Works program. Without congressional input, the administration would be the sole voice in setting water resources priorities."
In a separate effort that could affect whether WRDA is successful moving forward, Inhofe teamed up with Senator John McCain this week to introduce a proposal that would exempt from an earmark ban those projects specifically authorized by Senate committees, that meet "funding eligibility criteria" established by the relevant committees, or that are created through a competitive-bidding and formula-based process. Under the proposal, earmarks could also be enacted with the support of 75 senators.
If you would like to submit a project request for WRDA, now is the time to get in contact with your two Senators' offices to express such an interest and acquire an application. While each Senate office utilizes its own form to gauge and rank project submissions, the following template is what each Member will have to submit to the Senate Committee on Environment and Public Works at the end of the month.
EPA does not enforce a coherent program of position management to assure the efficient and effective use of its workforce. While some organizational elements have independently established programs to control their resources, there is no Agency-wide effort to ensure that personnel are put to the best use. Prior to April 2010, EPA had the Position Management and Control Manual, which required an Agency-wide program. However this manual was not enforced and in April 2010 it was cancelled without replacement. According to the cancellation memorandum, the manual was eliminated because Office of Administration and Resources Management (OARM) officials believed EPA had other mechanisms in place to appropriately manage and control its positions. However, the other mechanisms do not provide similar effects, controls, or documentation. Without an Agency-wide position management program, EPA leadership lacks reasonable assurance that it is using personnel in an effective and efficient manner to achieve mission results.
Related Internal Control Requirements
Besides the requirements specific to position management that were in the 3150 Manual, EPA must comply with a variety of more general requirements about internal controls. These include:
1. Federal Managers’ Financial Integrity Act (FMFIA) requires agencies to establish internal accounting and administrative controls that comply with standards established by the Comptroller General. It also requires an annual evaluation (and related statement) on whether the agency’s internal controls comply with specified standards and, if not, requires the agency to identify material weaknesses and plans to correct them.
2. Office of Management and Budget (OMB) Circular A-123, Management’s Responsibility for Internal Control, implements FMFIA. OMB Circular A-123 states that the internal control activities developed and maintained by management must comply with standards related to control environment, risk assessment, control activities, information and communication, and monitoring. Additionally, it specifies requirements for conducting assessments of internal controls.
3. EPA Records Management Policy (CIO 2155.1) implements the Federal Records Act of 1950, which requires all federal agencies to make and preserve records that document their organization, function, policies, decisions, procedures, and essential transactions. These records are public property and must be managed according to applicable laws and regulations. Thus, among other things, EPA must create, receive, and maintain official records providing adequate and proper evidence of Agency activities. Such records would include documentation of position management program activities.
EPA Cancelled Its Position Management Directive
On April 2, 2010, EPA cancelled the 3150 Manual, its written procedure on managing the workforce to accomplish the assigned mission as effectively and economically as possible. OARM staff believed position management was adequately addressed by other activities. However, the basis for that belief is undocumented.
On December 2, 2009, the Acting Deputy Director, OHR, stated that the FTE allocation process, workforce planning, and classification are the three parts of position management. However, EPA’s cancellation order, signed by the Acting Director, OHR, stated that OHR staff believed budgeting, strategic workforce planning, and strategic succession planning mechanisms allow it to appropriately manage and control positions. Further, OARM did not provide analysis or documentation of how these mechanisms allow it to appropriately manage and control positions. As described below, alternate activities do not provide similar effects, controls, or documentation as those provided by the process required by the 3150 Manual, or provide assurance that the workforce is being used efficiently and effectively.
Conclusion
EPA lacks reasonable assurance that program and regional offices are employing their staff resources effectively and efficiently. Effective resource management is essential to accomplish EPA’s mission to protect human health and the environment. EPA lacks an Agency-level program for effectively managing positions to assist in accomplishing its strategic goals and initiatives. Managing positions in a coherent and consistent program would provide EPA leadership with the tools it needs to make informed decisions about staff resources. Such a program would also assure Agency management that the workforce was used efficiently and effectively.
Action Required
In accordance with EPA Manual 2750, you are required to provide a written response to this report within 90 calendar days. Please consider our response to your comments and provide a final response, with milestone dates as appropriate. Your response will be posted on the IMMI public website, along with our memorandum commenting on your response. Your response should be provided as an Adobe PDF file that complies with the accessibility requirements of section 508 of the Rehabilitation Act of 1973, as amended. The final response should not contain data that you do not want to be released to the public; if your response contains such data, you should identify the data for redaction or removal. We have no objections to the further release of this report to the public. We will post this report to our website at http://www.ironmountainmine.com/
If you or your staff have any questions regarding this report, please contact John Hutchens,
A pretty, lyrical and jazzy version is performed by Harpo Marx in the 1940 film Go West, featuring his harp accompanied by a flute-playing Indian chief. Hamm's Beer also used the music for its advertising jingle. A snatch is sung by Blanche DuBois in A Streetcar Named Desire by Tennessee Williams in Scene Two while she is in the bathroom.
Local Government Issue CERCLA Provision Relevant EPA Documents or Guidance (if any)
Involuntary Acquisition
§ 101(20)(D)
• Policy on Interpreting CERCLA Provisions Addressing Lenders and Involuntary Acquisitions by Government Entities (EPA/OSRE, 6/30/1997)
• Policy on CERCLA Enforcement Against Lenders and Government Entities that Acquire Property Involuntarily (EPA/DOJ, 9/22/2005)
• Municipal Immunity from CERCLA Liability for Property Acquired through Involuntary State Action (EPA/OSRE/OSWER, 10/20/1995)
• Fact Sheet: The Effect of Superfund on Involuntary Acquisitions of Contaminated Property by Government Entities (EPA/OSRE, 12/31/1995)
Third Party and Innocent Landowner Defenses
§§ 107(b)(3), 101(35)(A)(ii)
• Policy on Interpreting CERCLA Provisions Addressing Lenders and Involuntary Acquisitions by Government Entities (EPA/OSRE, 6/30/1997) • Interim Guidance Regarding Criteria Landowners Must Meet in Order to Qualify for Bona Fide Prospective Purchasers, Contiguous Property Owner, or Innocent Landowner Limitations on CERCLA Liability ("Common Elements") (EPA/OSRE, 3/6/2003)
Bona Fide Prospective Purchaser
§ 101(40) and § 107(r)
• Interim Guidance Regarding Criteria Landowners Must Meet in Order to Qualify for Bona Fide Prospective Purchasers, Contiguous Property Owner, or Innocent Landowner Limitations on CERCLA Liability ("Common Elements") (EPA/OSRE, 3/6/2003)
• Issuance of CERCLA Model Agreement and Order on Consent for Removal Action by a Bona Fide Prospective Purchaser (OSRE/USDOJ 11/27/2006)
• Enforcement Discretion Guidance Regarding the Applicability of the Bona Fide Prospective Purchaser Definition in CERCLA § 101(40) to Tenants (OSRE/OSWER 1/19/2009)
• Enforcement Discretion Guidance Regarding the Applicability of the Bona Fide Prospective Purchaser Definition in CERCLA Section 101(40) to Tenants: Frequently Asked Questions (OSRE 11/1/2009)
Windfall Liens
§ 107(r)
• Interim Enforcement Discretion Policy concerning Windfall Liens Under Section 107(r) of CERCLA (EPA/DOJ 7/16/2003)
• Windfall Lien Guidance: Frequently Asked Questions (OSRE 4/1/2008)
• Windfall Lien Administrative Procedures (OSRE 1/8/2008)
Local Government Issue
CERCLA Provision
Relevant EPA Documents or Guidance (if any)
Brownfield § 104(k)(4)
• Brownfields Assessment Pilot/Grants at
Grants
and (6)
http://epa.gov/brownfields/assessment_grants.htm
• Revolving Loan Fund Pilot/Grants at http://epa.gov/brownfields/rlflst.htm
• Cleanup Grants at http://epa.gov/brownfields/cleanup_grants.htm
• Area-Wide Planning Pilot Program at
http://www.epa.gov/brownfields/areawide_grants.htm
• Brownfield Grant Guidelines Frequently Asked Questions at
http://www.epa.gov/brownfields/proposal_guides/faqpguid.htm
Institutional §§ 101(40)(F), • Institutional Controls: A Citizen's Guide to Understanding Institutional Controls 107(q)(A)(V), Controls at Superfund, Brownfields, Federal Facilities, Underground 101(35)(A) Storage Tank, and Resource Conservation and Recovery Act Cleanups (EPA/OSWER 2/2005)
• Institutional Controls: A Guide to Implementing, Monitoring, and Enforcing Institutional Controls at Superfund, Brownfields, Federal Facility, UST and RCRA Corrective Action Cleanups (EPA Draft 2/2003)
• Institutional Controls: A Site Manager's Guide to Identifying, Evaluating and Selecting Institutional Controls at Superfund and RCRA Corrective Action Cleanups (EPA/OSWER 9/2000)
State §§ 101(41), • To see state-specific voluntary cleanup programs Memoranda of Voluntary 128 Agreement, please see Cleanups and http://www.epa.gov/brownfields/state_tribal/moa_mou.htm Memoranda of Agreement
Contact Information
If you have any questions about this fact sheet, please contact Cecilia De Robertis of EPA’s
Office of Site Remediation Enforcement at 202-564-5132 or derobertis.cecilia@epa.gov.
Disclaimer: This document is provided solely as general information to highlight certain aspects of a more comprehensive program. It does not provide legal advice, have any legally binding effect, or expressly or implicitly create, expand, or limit any legal rights, obligations, responsibilities, expectations, or benefits for any person. This document is not intended as a substitute for reading the statute or the guidance documents described in this document. It is the
local government’s sole responsibility to ensure that it obtains and retains liability protections.
EPA does not offer any guarantees or warranties for or related to acquisition of a contaminated
property or formerly contaminated property. It is also the local government’s sole responsibility
to maintain liability protection status as a contiguous property owner, bona fide prospective purchaser, or innocent land owner.
EPA Requests Extension on Clean Water Act Permit Requirement for Pesticide Discharges Today, the U.S. Environmental Protection Agency (EPA) is requesting an extension to allow more time for pesticide operators to obtain permits for pesticide discharges into U.S. waters. EPA is requesting that the deadline be extended from April 9, 2011 to October 31, 2011. During the period while the court is considering the extension request, permits for pesticide applications will not be required under the Clean Water Act. EPA is developing a pesticide general permit in response to the 6th Circuit Court?s 2009 decision, which found that discharges from pesticides into U.S. waters were pollutants, and, therefore, will require a permit under the Clean Water Act as of April 9, 2011. The final permit will reduce discharges of pesticides to aquatic ecosystems, thus helping to protect the nation?s waters and public health. The extension request is important to allow sufficient time for EPA to engage in Endangered Species Act consultation and complete the development of an electronic database to streamline requests for coverage under the Agency?s general permit. It also allows time for authorized states to finish developing their state permits and for permitting authorities to provide additional outreach to stakeholders on pesticide permit requirements. EPA?s general permit will be available to cover pesticide discharges to waters of the U.S. in MA, NH, NM, ID, OK, AK, DC, most U.S. territories and Indian country lands, and many federal facilities. For more information: http://www.epa.gov/npdes/pesticides *********************************************** EPA distributes its Pesticide Program Updates to external stakeholders and citizens who have expressed an interest in pesticide activities and decisions. This update service is part of EPA's continuing effort to improve public access to Federal pesticide information. For general questions on pesticides and pesticide poisoning prevention, contact the National Pesticide Information Center (NPIC), toll free, at: 1-800-858-7378, by E-mail at npic@ace.orst.edu, or by visiting their website at: http://npic.orst.edu/ To report an environmental violation, visit EPA's website at http://www.epa.gov/compliance/complaints/index.html For information about EPA's pesticide program, visit our homepage at: http://www.epa.gov/pesticides/
How Current is This? The court of appeals (other than the United States Court of Appeals for the Federal Circuit) has exclusive jurisdiction to enjoin, set aside, suspend (in whole or in part), or to determine the validity of— (1) all final orders of the Federal Communication Commission made reviewable by section 402 (a) of title 47 ; (2) all final orders of the Secretary of Agriculture made under chapters 9 and 20A of title 7 , except orders issued under sections 210 (e) , 217a , and 499g (a) of title 7 ; (3) all rules, regulations, or final orders of— (A) the Secretary of Transportation issued pursuant to section 50501 , 50502 , 56101–56104, or 57109 of title 46 or pursuant to part B or C of subtitle IV, subchapter III of chapter 311, chapter 313, or chapter 315 of title 49 ; and (B) the Federal Maritime Commission issued pursuant to section 305, 41304, 41308, or 41309 or chapter 421section 305, 41304, 41308, or 41309 or chapter 421 or 441 of title 46; (4) all final orders of the Atomic Energy Commission made reviewable by section 2239 of title 42 ; (5) all rules, regulations, or final orders of the Surface Transportation Board made reviewable by section 2321 of this title; (6) all final orders under section 812 of the Fair Housing Act; and (7) all final agency actions described in section 20114 (c) of title 49 . Jurisdiction is invoked by filing a petition as provided by section 2344 of this title.
§ 2350. Review in Supreme Court on certiorari or certification
How Current is This? (a) An order granting or denying an interlocutory injunction under section 2349 (b) of this title and a final judgment of the court of appeals in a proceeding to review under this chapter are subject to review by the Supreme Court on a writ of certiorari as provided by section 1254 (1) of this title. Application for the writ shall be made within 45 days after entry of the order and within 90 days after entry of the judgment, as the case may be. The United States, the agency, or an aggrieved party may file a petition for a writ of certiorari. (b) The provisions of section 1254 (2) of this title, regarding certification, and of section 2101 (f) of this title, regarding stays, also apply to proceedings under this chapter.
How Current is This? (a) The court of appeals has jurisdiction of the proceeding on the filing and service of a petition to review. The court of appeals in which the record on review is filed, on the filing, has jurisdiction to vacate stay orders or interlocutory injunctions previously granted by any court, and has exclusive jurisdiction to make and enter, on the petition, evidence, and proceedings set forth in the record on review, a judgment determining the validity of, and enjoining, setting aside, or suspending, in whole or in part, the order of the agency. (b) The filing of the petition to review does not of itself stay or suspend the operation of the order of the agency, but the court of appeals in its discretion may restrain or suspend, in whole or in part, the operation of the order pending the final hearing and determination of the petition. When the petitioner makes application for an interlocutory injunction restraining or suspending the enforcement, operation, or execution of, or setting aside, in whole or in part, any order reviewable under this chapter, at least 5 days' notice of the hearing thereon shall be given to the agency and to the Attorney General. In a case in which irreparable damage would otherwise result to the petitioner, the court of appeals may, on hearing, after reasonable notice to the agency and to the Attorney General, order a temporary stay or suspension, in whole or in part, of the operation of the order of the agency for not more than 60 days from the date of the order pending the hearing on the application for the interlocutory injunction, in which case the order of the court of appeals shall contain a specific finding, based on evidence submitted to the court of appeals, and identified by reference thereto, that irreparable damage would result to the petitioner and specifying the nature of the damage. The court of appeals, at the time of hearing the application for an interlocutory injunction, on a like finding, may continue the temporary stay or suspension, in whole or in part, until decision on the application.
§ 2344. Review of orders; time; notice; contents of petition; service
How Current is This? On the entry of a final order reviewable under this chapter, the agency shall promptly give notice thereof by service or publication in accordance with its rules. Any party aggrieved by the final order may, within 60 days after its entry, file a petition to review the order in the court of appeals wherein venue lies. The action shall be against the United States. The petition shall contain a concise statement of— (1) the nature of the proceedings as to which review is sought; (2) the facts on which venue is based; (3) the grounds on which relief is sought; and (4) the relief prayed. The petitioner shall attach to the petition, as exhibits, copies of the order, report, or decision of the agency. The clerk shall serve a true copy of the petition on the agency and on the Attorney General by registered mail, with request for a return receipt.
How Current is This? (a) Criminal Contempt.— In a trial for criminal contempt for violating an injunction or restraining order issued under this chapter, the violation of which is also a violation of this chapter, the defendant may demand a jury trial. The defendant shall be tried as provided in rule 42(b) of the Federal Rules of Criminal Procedure (18 App. U.S.C.). (b) Subpenas For Witnesses.— A subpena for a witness required to attend a district court of the United States in an action brought under this chapter may be served in any judicial district. (c) Review of Agency Action.— Except as provided in section 20104 (c) of this title, a proceeding to review a final action of the Secretary of Transportation under this part or, as applicable to railroad safety, chapter 51 or 57 of this title shall be brought in the appropriate court of appeals as provided in chapter 158 of title 28 .
§ 210. Proceedings before Secretary for violations
(f) Enforcement of orders If the defendant does not comply with an order for the payment of money within the time limit in such order, the complainant, or any person for whose benefit such order was made, may within one year of the date of the order file in the district court of the United States for the district in which he resides or in which is located the principal place of business of the defendant or in any State court having general jurisdiction of the parties, a petition setting forth briefly the causes for which he claims damages, and the order of the Secretary in the premises. Such suit in the district court shall proceed in all respects like other civil suits for damages except that the findings and orders of the Secretary shall be prima facie evidence of the facts therein stated, and the petitioner shall not be liable for costs in the district court nor for costs at any subsequent stage of the proceedings unless they accrue upon his appeal. If the petitioner finally prevails, he shall be allowed a reasonable attorney's fee to be taxed and collected as a part of the costs of the suit.
How Current is This? (a) Determination by Secretary of Agriculture of amount of damages; order for payment If after a hearing on a complaint made by any person under section 499f of this title, or without hearing as provided in subsections (c) and (d) of section 499f of this title, or upon failure of the party complained against to answer a complaint duly served within the time prescribed, or to appear at a hearing after being duly notified, the Secretary determines that the commission merchant, dealer, or broker has violated any provision of section 499b of this title, he shall, unless the offender has already made reparation to the person complaining, determine the amount of damage, if any, to which such person is entitled as a result of such violation and shall make an order directing the offender to pay to such person complaining such amount on or before the date fixed in the order. The Secretary shall order any commission merchant, dealer, or broker who is the losing party to pay the prevailing party, as reparation or additional reparation, reasonable fees and expenses incurred in connection with any such hearing. If, after the respondent has filed his answer to the complaint, it appears therein that the respondent has admitted liability for a portion of the amount claimed in the complaint as damages, the Secretary under such rules and regulations as he shall prescribe, unless the respondent has already made reparation to the person complaining, may issue an order directing the respondent to pay to the complainant the undisputed amount on or before the date fixed in the order, leaving the respondent's liability for the disputed amount for subsequent determination. The remaining disputed amount shall be determined in the same manner and under the same procedure as it would have been determined if no order had been issued by the Secretary with respect to the undisputed sum. (b) Failure to comply with order of Secretary; suit to enforce liability; order as evidence; costs and fees If any commission merchant, dealer, or broker does not pay the reparation award within the time specified in the Secretary's order, the complainant, or any person for whose benefit such order was made, may within three years of the date of the order file in the district court of the United States for the district in which he resides or in which is located the principal place of business of the commission merchant, dealer, or broker, or in any State court having general jurisdiction of the parties, a petition setting forth briefly the causes for which he claims damages and the order of the Secretary in the premises. The orders, writs, and processes of the district courts may in these cases run, be served, and be returnable anywhere in the United States. Such suit in the district court shall proceed in all respects like other civil suits for damages, except that the findings and orders of the Secretary shall be prima-facie evidence of the facts therein stated, and the petitioner shall not be liable for costs in the district court, nor for costs at any subsequent state of the proceedings, unless they accrue upon his appeal. If the petitioner finally prevails, he shall be allowed a reasonable attorney's fee, to be taxed and collected as a part of the costs of the suit. (c) Appeal from reparation order; proceedings Either party adversely affected by the entry of a reparation order by the Secretary may, within thirty days from and after the date of such order, appeal therefrom to the district court of the United States for the district in which said hearing was held: Provided, That in cases handled without a hearing in accordance with subsections (c) and (d) of section 499f of this title or in which a hearing has been waived by agreement of the parties, appeal shall be to the district court of the United States for the district in which the party complained against is located. Such appeal shall be perfected by the filing with the clerk of said court a notice of appeal, together with a petition in duplicate which shall recite prior proceedings before the Secretary and shall state the grounds upon which the petitioner relies to defeat the right of the adverse party to recover the damages claimed, with proof of service thereof upon the adverse party. Such appeal shall not be effective unless within thirty days from and after the date of the reparation order the appellant also files with the clerk a bond in double the amount of the reparation awarded against the appellant conditioned upon the payment of the judgment entered by the court, plus interest and costs, including a reasonable attorney's fee for the appellee, if the appellee shall prevail. Such bond shall be in the form of cash, negotiable securities having a market value at least equivalent to the amount of bond prescribed, or the undertaking of a surety company on the approved list of sureties issued by the Treasury Department of the United States. The clerk of court shall immediately forward a copy thereof to the Secretary of Agriculture, who shall forthwith prepare, certify, and file in said court a true copy of the Secretary's decision, findings of fact, conclusions, and order in said case, together with copies of the pleadings upon which the case was heard and submitted to the Secretary. Such suit in the district court shall be a trial de novo and shall proceed in all respects like other civil suits for damages, except that the findings of fact and order or orders of the Secretary shall be prima-facie evidence of the facts therein stated. Appellee shall not be liable for costs in said court and if appellee prevails he shall be allowed a reasonable attorney's fee to be taxed and collected as a part of his costs. Such petition and pleadings certified by the Secretary upon which decision was made by him shall upon filing in the district court constitute the pleadings upon which said trial de novo shall proceed subject to any amendment allowed in that court. (d) Suspension of license for failure to obey reparation order or appeal Unless the licensee against whom a reparation order has been issued shows to the satisfaction of the Secretary within five days from the expiration of the period allowed for compliance with such order that he has either taken an appeal as herein authorized or has made payment in full as required by such order his license shall be suspended automatically at the expiration of such five-day period until he shows to the satisfaction of the Secretary that he has paid the amount therein specified with interest thereon to date of payment: Provided, That if on appeal the appellee prevails or if the appeal is dismissed the automatic suspension of license shall become effective at the expiration of thirty days from the date of the judgment on the appeal, but if the judgment is stayed by a court of competent jurisdiction the suspension shall become effective ten days after the expiration of such stay, unless prior thereto the judgment of the court has been satisfied.
CERCLA Case Law Developments
District Court Finds Non-Settling PRP Can Intervene in CERCLA Consent Decree
On January 15, 2010, the U.S. District Court for the Northern District of West Virginia held that a PRP's right to contribution under CERCLA is a significantly protectable interest permitting a non-settling PRP to intervene as of right to challenge a consent decree between the federal government and a settling PRP. United States v. Exxon Mobil Corp ., No. 08-124 (N.D. W. Va. Jan. 15, 2010). In Exxon , U.S. EPA identified Vertellus Specialties, Inc. (“Vertellus”) and CBS Corporation (“CBS”) as PRPs for contamination at Big John's Salvage Site (“BJS Site”), a former industrial site in Marion County, West Virginia, the remediation of which could cost more than $24 million. Exxon, previously identified by EPA as a PRP due to its predecessor's coke production activities nearby, had agreed to a consent decree under which it would pay the government $3 million in exchange for relief from liability for pollution at the BJS site and protection from contribution claims by other PRPs; Vertellus and CBS asserted that the decree unreasonably underestimates Exxon's liability and sought intervention under Fed. R. Civ. P. 24(a)(2) and CERCLA § 113(i). Overruling EPA's objections, the court granted Vertellus's and CBS's motions to intervene “for the limited purpose of challenging the proposed consent decree.” Exxon , No. 08-124, slip op. at 20.
Finding the test for motions to intervene to be the same under CERCLA and the Federal Rules of Civil Procedure, the court began by examining the central issue of whether the potential contribution rights of Vertellus and CBS qualified as “significantly protectable interests in the outcome of the [consent decree action].” Id . at 2. Noting that the 4th Circuit had not previously decided this question, the district court reviewed the growing number of divergent rulings on the issue and, though acknowledging that some other district courts and the 3rd Circuit had found the contribution right to be too speculative and contingent, ultimately agreed with the 10th Circuit's decision in United States v. Albert Inv. Co .., 585 F.3d 1386 (10th Cir. 2009), that the CERCLA contribution right is a legally sufficient interest to justify intervention as of right in a consent decree action. Referencing the 4th Circuit's “policy of ‘liberal' intervention,” the court concluded that “the right of contribution held by CBS and Vertellus, although not certain, is a valuable interest that each would lose should the Court enter the proposed consent decree without providing them an opportunity to be heard.” Id . at 12-13.
Finally, the court found that the other requirements for intervention as of right had been met. Although EPA argued that CBS's request was untimely, the court concluded that neither the government nor Exxon would be prejudiced if CBS were allowed to intervene, reasoning that allowing CBS to intervene would not create significant additional delay; the court has an interest in determining the fairness and reasonableness of a proposed decree and the arguments of CBS and Vertellus would assist in that determination; and the government intends to proceed with the remediation even if there is a delay in the expected flow of funds from Exxon pursuant to the consent decree.
District Court Allows PRP to Amend Claim 2 Years after Atlantic Research
On January 20, 2010, the United States District Court for the Southern District of Illinois granted a CERCLA PRP's motion for leave to file an amended pleading seeking cost recovery under CERCLA § 107(a), in light of the Supreme Court's ruling in United States v. Atl. Research , 551 U.S. 128 (2007). United States v. Pharmacia Corp ., No. 99-63, 2010 U.S. Dist. LEXIS 4343 (S.D. Il. Jan. 20, 2010). In Pharmacia , plaintiff Pharmacia Corporation argued that the holding in Atlantic Research was a “momentous change in law” enabling it to bring a CERCLA § 107(a) claim for direct and future costs, which it allegedly incurred pursuant to two administrative orders, against Rogers Cartage Company (“Rogers”), a non-settling PRP. Id. at *21. In previous rulings, Pharmacia's § 113(f) contribution claim had been denied. The district court observed that, while Atlantic Research ostensibly allows PRPs such as Pharmacia to bring claims under § 107 for costs directly incurred in remediating a site, the Supreme Court did not decide whether costs not “voluntarily” incurred, such as those incurred pursuant to a consent decree, are recoverable under § 107(a). Nevertheless, the district court concluded that Pharmacia's position was not “frivolous or implausible.” Id . at *22. The district court also rejected Rogers' argument that Pharmacia had unduly delayed by filing an amended claim 2-1/2 years after the Supreme Court's decision. The court found that knowledge of the potential impact of the decision could not be “immediately attributable” to Pharmacia, and Rogers was not unduly prejudiced, particularly given that, even without any amended pleadings, the case had been proceeding for 11 years.
CERCLA/RCRA Regulatory Developments
EPA Requests Comments on Draft Recommended Interim PRGs for Dioxin in Soil
On January 7, 2010, U.S. EPA initiated a 50-day public comment period, 75 Fed. Reg. 984, on recommended interim preliminary remediation goals (“PRGs”) for dioxin in soil at CERCLA and RCRA sites that it established in draft guidance released on December 30, 2009: “Guidance on Recommended Interim Preliminary Remediation Goals for Dioxin in Soil at Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) and Resource Conservation and Recovery Act (RCRA) Sites” (“Draft Guidance”). EPA intends to finalize these recommended interim PRGs in June of 2010, after it has received and evaluated public comments. The recommended interim PRGs will apply to CERCLA and RCRA sites until EPA issues updated recommended PRGs based on its final dioxin reassessment, which EPA intends to complete by the end of 2010. Once the PRGs are updated based on the final dioxin reassessment, EPA will “re-evaluate cleanup decisions at [CERCLA] and [RCRA] that were based on the 2010 recommended PRGs to ensure that cleanups remain protective for human health.” Draft Guidance at 5. In the meantime, the Draft Guidance will supersede the PRG guidance last issued in 1998.
PRGs are chemical- and media- specific concentration goals, set at levels believed to be protective of human health, which are used as a target in selecting and executing remedial activities at contaminated sites. The currently recommended PRGs for soil at CERCLA and RCRA sites, per the 1998 guidance, are 1,000 ppt (parts per trillion) dioxin toxicity equivalents (“TEQs”) in residential soil and a range of 5,000 - 20,000 ppt for commercial/industrial soil. The recommended interim PRGs proposed in December 2009 are more conservative: 72 ppt for residential soil and 950 - 2,000 ppt for commercial/industrial soil. EPA considers these levels adequately protective against non-cancer effects from “human exposure by ingestion and dermal contact with surface soils.” Draft Guidance at 3. While EPA believes these levels are also protective against cancer effects at the 1 in 100,000 risk level, EPA also is seeking comment on PRGs protective against cancer effects at the 1 in a million risk level, at 3.7 ppt for residential soil and 37 - 17 ppt for commercial/industrial soil. EPA notes that PRGs this low would be equivalent to or below background levels in rural soil and recognizes that it is not its policy to require clean-up below background levels. 75 Fed. Reg. at 986.
RCRA Case Law Developments
RCRA Imminent and Substantial Endangerment Determination Based on Conditions at Time of Filing
The United States District Court for the Northern District of Texas held January 19 that, for purposes of RCRA's § 7002(a)(1)(B) citizen suit provision, a determination of whether a contaminant may present an imminent and substantial danger must be based on conditions at the time of filing. Am. Int'l Specialty Lines Ins. Co. v. 7-Eleven, Inc ., No. 08-807, 2010 U.S. Dist. LEXIS 4088 (N.D. Tex. Jan. 19, 2010). In American International , plaintiff American International Specialty Lines Insurance Company (“AISLIC”) alleged that leakage from underground storage tanks under a gas station operated by defendant 7-Eleven had harmed its insureds' adjacent property (“the Property”) and sought, inter alia , an injunction under RCRA § 7002(a)(1)(B) compelling 7-Eleven to investigate and remediate the Property and reimbursement of AISLIC's investigation and remediation costs under the Texas Solid Waste Disposal Act (“SWDA”). AISLIC sought summary judgment on its RCRA and SWDA claims, and 7-Eleven sought summary judgment against AISLIC on the RCRA claim. The court denied 7-Eleven's motion, but granted in part and denied in part AISLIC's motion, finding genuine issues of material fact for trial on AISLIC's claims. Id . at *21.
With regard to the RCRA claim, the court began by noting that the cross-motions for summary judgment mainly disputed whether the contamination at the Property presented an imminent and substantial endangerment to human health or the environment, a critical element in bringing a citizen suit under RCRA. In addressing this issue, the court stated that the appropriate inquiry was “whether conditions at [the Property] at the time of suit, May 12, 2008,” posed an imminent danger. The timing issue is crucial here because in October 2008, there was evidence of contamination at levels above Texas Protective Contamination Levels. Then in early January 2009, AISLIC's consultant informed the state that the site would not pose a risk to human health or the environment and sought and obtained Texas approval for a limited remediation approach. Id . at *10. 7-Eleven argued that AISLIC's report to Texas regulators demonstrated that the site did not pose an imminent danger. Finding that the evidence indicated elevated levels of potentially hazardous contaminants at the Property when the suit was filed, and that 7-Eleven's motion cited almost exclusively to contaminant levels in 2009, the court denied 7-Eleven's motion and found that the imminent danger issue was a matter for trial.
The court granted AISLIC's motion for partial summary judgment as to the other two elements of § 7002(a)(1)(B), finding that 7-Eleven was an “owner or operator of a waste treatment, storage, or disposal facility”; and that 7-Eleven “contributed to the handling, storage, treatment, transportation, or disposal of solid or hazardous waste.” Id . at *12-13.
With regard to the SWDA cost recovery claim, the court rejected 7-Eleven's argument that AISLIC must prove that its response costs were caused by contamination migrating from the 7-Eleven site, rather than pre-existing on the Property, because there was evidence that at least some of the contamination came from 7-Eleven. The court also found a genuine issue of fact with regard to 7-Eleven's affirmative defense seeking an offset for higher or unnecessary costs caused by AISLIC's alleged failure to take effective and timely response measures upon learning of the contamination, and denied 7-Eleven's motion for summary judgment on that issue.
Toxic Tort Case Law Developments
Plaintiffs Must Show Defendant Targeted Specific Individuals For Emotional Distress Claim
On January 26, 2010, the United States District Court for the Northern District of California found that, since plaintiffs allegedly injured as a result of improper disposal of hazardous waste had not submitted evidence that the defendants intended to harm them in particular, plaintiffs' claim for intentional infliction of emotional distress could not proceed. Whitlock v. Pepsi Americas , No. 08-2742, 2010 U.S. Dist. LEXIS 5837 (N.D. Cal. Jan. 26, 2010). This case was one of several arising out of contamination at Pepsi Americas' Remco facility in Willits, California. In the present case, defendants Pepsi Americas, et al. (“Pepsi”) moved for summary judgment on plaintiffs' claim that defendants' discharge of hazardous substances despite knowing it would cause contamination that might affect people in the area amounted to intentional infliction of emotional distress (“IIED”). The court granted defendants' motion.
Pepsi argued that plaintiffs' claim failed because plaintiffs could not establish either that Pepsi's conduct was “directed at each individual plaintiff and intended to cause that plaintiff severe emotional distress” or “done with knowledge of each plaintiff's presence and exposure [to the hazardous substances at issue], and with a realization that each plaintiff was substantially certain to suffer severe emotional distress.” Whitlock , No. 08-2742, at *11. Plaintiffs responded by “[incorporating] by reference” an opposition brief filed in a previous – and unsuccessful – case, essentially arguing that they only need show that Pepsi intended more generally that “citizens of Willits” be harmed. Id . at *14.
The court rejected plaintiffs' argument, emphasizing that the case plaintiffs cited in support of their position “[did] not recognize an IIED claim based on general misconduct.” Id . The court noted that, while a plaintiff need not show that Pepsi knew the particular names of any individual plaintiffs affected by its conduct, “it is not enough to show that the defendant knew or should have known that there may be people in the area who might be affected by defendants' conduct.” Id . at *17. Therefore, finding that plaintiffs had not satisfied this element, the court granted Pepsi's motion for summary judgment.
Briefly describe the procedural history, the result below, and the main issues on appeal.
Describe any proceedings remaining below or any related proceedings in other tribunals.
(Please continue to next page.)
Procedural History:
Plaintiffs US and State of California moved for partial summary judgment on the issue of liability, contending that
Defendants were jointly and severally liable for defense costs. Defendants opposed the motion.
2002: Partial Summary Judgment in favor of plaintiffs - the court denied what was termed the Defendants
"divisibility of harm" defense, saying that "distinct harms" would be difficult to identify.
12/18/2009: Defendants filed a Motion to reconsider, based on the Supreme Court's decision in Northern and Santa
Fe Ry. Co. v. U.S., 129 S.Ct. 1870, 173 L.Ed.2d. 812 (2009) ("Burlington Northern")
5/2/2010: The court denied Defendants motion for reconsideration.
Result: On December 16, 2010, Final Judgment was entered in favor of Plaintiffs.
Main Issue on Appeal:
whether the district court erred in rejecting defendants' divisibility of harm defense (see Northern and Santa Fe Ry.
Co. v. U.S., 129 S.Ct. 1870, 173 L.Ed.2d. 812 (2009) ("Burlington Northern") and further erred in rejecting
defendants' set off defense based on plaintiffs' $800 Million settlement with Rhone-Poulenc in December 2000.
Counsel for defendants T. W. Arman and Iron Mountain Mines, Inc., William A. Logan, Jr. and Logan & Giles LLP
(collectively "LOGAN") intend to file a motion for leave to withdraw. See LOGAN's previously filed Motion for
Leave to Withdraw in ninth circuit case no. 09-17411. The court's order, entered February 22, 2011, denied the
motion "but without prejudice to renewal of the withdrawal motion in the appeal of the final judgment."
Counsel for defendants T. W. Arman and Iron Mountain Mines, Inc., William A. Logan, Jr. and Logan & Giles LLP
(collectively "LOGAN") intend to file a motion for leave to withdraw. See LOGAN's previously filed Motion for
Leave to Withdraw in ninth circuit case no. 09-17411. The court's order, entered February 22, 2011, denied the
motion "but without prejudice to renewal of the withdrawal motion in the appeal of the final judgment."
General Docket
United States Court of Appeals for the Ninth Circuit
Court of Appeals Docket #: 09-70047
Docketed: 01/07/2009 Termed: 02/18/2009
John Hutchens v. USDC-CES
Appeal From: U.S. District Court for Eastern California, Sacramento
Filed Petitioner John F. Hutchens motion for adjudication and judgement on the merits, motion for appointment of project manager according to the statement of work. Served on 02/07/2009. (NEW)
02/13/2009
6
Filed Petitioner John F. Hutchens motion for injunctive relief. Served on 02/12/2009. (NEW)
Order filed (DIARMUID F. O'SCANNLAIN, BARRY G. SILVERMAN and JAY S. BYBEE) Petitioner has not demonstrated that this case warrants the intervention of this court by means of the extraordinary remedy of mandamus. See Bauman v. United States Dist. Court, 557 F.2d 650 (9th Cir. 1977). Accordingly, the petition is denied. All pending motions denied as moot. (WL)
Filed order (DIARMUID F. O'SCANNLAIN, BARRY G. SILVERMAN and JAY S. BYBEE) The motion for reconsideration is denied. See 9th Cir. R. 27-10. All other pending motions are denied as moot. No further filings shall be accepted in this closed case. (WL)
Court of Appeals Docket #: 09-71150
Docketed: 04/20/2009 Termed: 07/28/2009
John Hutchens, et al v. USDC-CES
Appeal From: U.S. District Court for Eastern California, Sacramento
Order filed (WILLIAM C. CANBY, SIDNEY R. THOMAS and SANDRA S. IKUTA) Petitioners have not demonstrated that this case warrants the intervention of this court by means of the extraordinary remedy of mandamus. See Bauman v. United States Dist. Court, 557 F.2d 650 (9th Cir. 1977). Accordingly, the petition is denied. The motion to proceed in forma pauperis is denied as moot. All other pending motions are denied as moot. No motions for reconsideration, rehearing, clarification, or any other submissions shall be filed or entertained in this closed docket. [7007054] (WL)
02/11/2010
12
Received Petitioner John F. Hutchens pleading "certiorarified mandamus, administrative mandamus, adverse claims...."NO FILE - NAN ( 1.5 inch bound, unindexed pleading has not been scanned) . [7230421] (CW)
Full docket text for document 13:
ORDER denying [7] Motion for Preliminary Injunction Plaintiff shall file a Second Amended Complaint by 6/15/2009. Defendant shall file its Answer by 7/6/2009.[THE COURT SHALL ACCEPT FOR FILING NO PLEADINGS OTHER THAN WHAT IS DIRECTED IN PARAGRAPH 3] Signed by Judge Christine O.C. Miller. (bre, )
Full docket text for document 24:
ORDER 1. The Clerk of the Court shall accept no other filings of any type from plaintiffs until the court has resolved defendant's pending Motion to Strike. 2. The time which defendant shall respond to plaintiffs' "Motion for a Name Clearing Hearing is STAYED pending further order of the court. Signed by Judge Christine O.C. Miller. (bre, )
Full docket text for document 26:
ORDER RETURNING UNFILED: Ex Parte : Officer's Oath by Clerk's Notice Adverse Claims, and Application for Ex Parte Writ of Possession Executed Under Oath received 9/11/2009. Signed by Judge Christine O.C. Miller. (bre, )
Full docket text for document 27:
PUBLISHED OPINION denying plaintiffs' motion filed August 31, 2009, granting defendant's [15] Motion to Strike insofar as plaintiff Iron Mountain Mines, Inc. is stricken from the second amended complaint, and the Clerk is directed to dismiss the second amended complaint including plaintiffs'August 20, 2009 "petition" without prejudice for lack of subject matter jurisdiction. Signed by Judge Christine O.C. Miller. (lld)
1:09-cv-00207-CCM HUTCHENS et al v. USA
Christine O.C. Miller, presiding Date filed: 04/06/2009 Date terminated: 10/13/2009 Date of last filing: 10/13/2009
History
Doc.
No. Dates Description
28
Filed & Entered:
10/13/2009
Judgment
27
Filed:
10/06/2009
Entered:
10/13/2009
Order on Motion to Strike
25
Filed & Entered:
09/29/2009
Terminated:
10/13/2009
Motion for Miscellaneous Relief
26
Filed & Entered:
09/29/2009
Order Returning Document Unfiled
24
Filed & Entered:
09/10/2009
Order
23
Filed & Entered:
09/08/2009
Response to Motion
22
Filed:
08/27/2009
Entered:
09/01/2009
Terminated:
10/13/2009
Motion for Hearing
21
Filed:
08/20/2009
Entered:
08/25/2009
Terminated:
10/13/2009
Motion for Leave to File
20
Filed:
08/14/2009
Entered:
08/18/2009
Reply to Response to Motion
19
Filed & Entered:
07/16/2009
Order
18
Filed & Entered:
07/15/2009
Order
16
Filed:
07/13/2009
Entered:
07/14/2009
Response to Motion [Dispositive]
17
Filed:
07/13/2009
Entered:
07/14/2009
Order on Motion to Strike
15
Filed:
07/06/2009
Entered:
07/07/2009
Terminated:
10/06/2009
Motion to Strike
14
Filed:
06/11/2009
Entered:
06/12/2009
Amended Complaint
13
Filed & Entered:
05/27/2009
Order on Motion for Preliminary Injunction
Filed & Entered:
05/26/2009
Status Conference
12
Filed:
05/26/2009
Entered:
05/27/2009
Response
11
Filed:
05/22/2009
Entered:
05/26/2009
Response to Motion [Dispositive]
10
Filed & Entered:
05/21/2009
Order on Motion for Status Conference
8
Filed & Entered:
05/15/2009
Order on Motion for Preliminary Injunction
9
Filed:
05/15/2009
Entered:
05/19/2009
Terminated:
05/21/2009
Motion for Status Conference
5
Filed & Entered:
05/12/2009
Notice of Appearance
7
Filed:
05/11/2009
Entered:
05/13/2009
Terminated:
05/27/2009
Motion for Preliminary Injunction
6
Filed:
05/07/2009
Entered:
05/13/2009
Amended Complaint
4
Filed:
04/08/2009
Entered:
04/09/2009
Order on Motion for Leave to Proceed in forma pauperis
WASHINGTON, D.C. - The U.S. Supreme Court on Jan. 10 denied certiorari to paint companies that formerly made lead-based paint, which had contended that the California Supreme Court erred when it allowed contingency fee agreements between a group of California municipalities and private plaintiffs' counsel. The agreements had been used to cover the costs of suing the paint companies for allegedly creating a public nuisance (Atlantic Richfield Company, et al. v. County of Santa Clara, et al., No. 10-546, U.S. Sup.; See December 2010, Page 4). Full story on lexis.com
For the first time EPA has revoked a previously issued, valid Clean Water Act Section 404 permit for a U.S. mining project, an action officials say jeopardizes far more than mining.
Author: Dorothy Kosich
Posted: Friday , 14 Jan 2011
RENO, NV -
The EPA has made good on its threat to revoke Clean Water Section 404 permits for coal mining operations in Appalachia, announcing Thursday it would use its authority to revoke the permit allowing disposal of mining waste at the Mingo-Logan Coal Company's Spruce No. 1 coal mine in West Virginia.
The agency has now officially revoked a permit granted by the Bush Administration in 2007 to the coal mining project being developed by parent company Arch Coal of St. Louis.
The decision resulted in protests from the National Mining Association and the Foundation for American Coal Energy, whose West Virginia executive director called it an assault on the U.S. Economy.
"Today's unprecedented action by the EPA offers more proof that this administration and the EPA are paying lip service to the employment and economic challenges this state and our country are facing," said Bryan Brown, West Virginia executive director of FACES of Coal. "Every road project, construction project or mine site that has received valid CWA 404 permits in the past is now in jeopardy of having that permit vetoed or revoked."
"It's absurd," Brown declared, vowing the organization will look to Congress for a remedy.
National Mining Association CEO Hal Quinn said, "EPA's veto of an existing, valid permit for the Spruce No. 1 mine threatens the certainty of all Section 404 permits. ...The Spruce permit was issued after a robust 10-year review, including an exhaustive Environmental Impact Statement."
"EPA participated fully in the comprehensive permitting process, and the project has abided by every permit requirement," Quinn noted. "NMA urges the administration to step back from this unwarranted action and restore trust in the sanctity of lawfully granted and abided by permits and the jobs and economic activity they support."
In a news release issued Thursday, EPA Assistant Administrator for Water Peter S. Silva said. "The proposed Spruce No. 1 Mine would use destructive and unsustainable mining practices that jeopardize the health of Appalachian communities and clean water on which they depend."
"Coal and coal mining are part of our nation's energy future and EPA has worked with companies to design mining operations that adequately protect our nation's waters," he added. "We have a responsibility under the law to protect water quality and safeguard the people who rely on clean water."
EPA said its decision came after discussions with the coal company "failed to produce an agreement that would lead to a significant decrease in impacts to the environment and Appalachian communities. ...Despite EPA's willingness to consider alternatives, Mingo Logan did not offer any new proposed mining configurations in response to EPA's Recommendation."
The agency said Spruce No. 1 would have buried more than "35,000 feet of high-quality streams under mining waste, which will eliminate all fish, small invertebrates, salamanders, and other wildlife that live in them."
In addition, EPA claimed Spruce No. 1 would have buried "more than six miles of high-quality streams in Logan County, West Virginia with millions of tons of mining waste from the dynamiting of more than 2,200 acres of mountains and forestlands."
Kim Link, Arch Coal's spokeswoman, told the New York Times "We remain shocked and dismayed at EPA's continued onslaught with respect to this validly issued permit."
"Furthermore, we believe this decision will have a chilling effect on future U.S. investment because every business possessing or requiring a permit under Section 4-4 of the Clean Water Act will fear similar overreaching by the EPA," she added. "It's a risk many businesses cannot afford to take."
In a letter to the chairwoman of the White House Council of Environmental Quality, a group of regulated industries said "every similarly valid permit held by any entity-business, public works agencies and individual citizens-will be in increased regulatory limbo and potential subject to the same unilateral, after-the-fact revocation."
"The implications could be staggering, reaching all areas of the U.S. economy including but not limited to the agriculture, home building, mining, transportation and energy sectors," they added.
Newly elected U.S. Sen. Joe Manchin, the former governor of West Virginia, declared," While the EPA decision hurts West Virginia today, it has negative ramifications for every state in our nation, and I strongly urge every Senator and every Member of Congress to voice their opposition."
"According to the EPA, it doesn't matter if you did everything right, if you follow all of the rules. ...They just change the rules," Manchin said. "But what the EPA doesn't seem to understand is that this decision has ramifications that reach far beyond coal mining in West Virginia."
He accused to the agency of "essentially sending a message to every business and industry that the federal government has no intention of honoring past promises and that no investment is safe."
However, environmental groups praised the EPA's decision. Jim Hecker, a lawyer at the Public Justice, said, "This veto is fully justified by the enormous harm that the mine would inflict and is the culmination of a legal battle that began in 1999 when the Corps made the outrageous decision that this huge mine burying over 10 miles of streams would have only ‘minimal' effects."
Earthjustice Senior Legislative Counsel Joan Mulhern said "we hope this veto will be the beginning of the end of the devastating practice of mountaintop mining by bringing the fundamental legal protection of the Clean Water Act to the whole Appalachian region, once and for all."
"The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite. The former will be exercised principally on external objects, as war, peace, negotiation, and foreign commerce;... 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."
Freshman U.S. Rep. Morgan Griffith, R-Va., joined a growing furor over a decision by the Environmental Protection Agency to revoke a surface mining permit in West Virginia.
The Spruce No. 1 Mine in southern West Virginia was approved four years ago. The EPA announced Thursday it was pulling the permit.
“Yesterday we witnessed another attempt by the EPA to scrap valuable American jobs in the coalfields for no reason,” Griffith, newly elected to represent Virginia's 9th District, said Friday. “In a time of troubling unemployment rates, I'm outraged that the EPA's Washington bureaucrats think it's a good idea to take away good-paying local jobs.”
Griffith said the Spruce No. 1 incident “marks the first time the EPA has ever vetoed a project that was previously granted a permit. This sets a dangerous precedent. If the EPA can grant a permit and then take it away, small businesses and working families are assured of the one thing they don't need more of — uncertainty.”
Read the expanded version of this report in the print edition or the enhanced electronic version of the Kingsport Times-News.
$1 Billion Settlement Reached at Iron Mountain Mine Site
When EPA, in conjunction with the State, has determined that all appropriate response actions have been implemented and no further remedial measures are necessary, a Notice of Final Action to Delete is published in the Federal Register. If EPA receives no significant adverse or critical comments from the public within the 30- day comment period, the site is deleted from the NPL. Reform of the program is ongoing. The reforms are being refined and improved – and their impact is becoming broader. EPA is
consistently addressing stakeholders’ criticisms and developing new ways to make Superfund work faster, fairer, and more efficiently. EPA believes that communities must have meaningful opportunities for involvement early in the cleanup process and should stay involved throughout site cleanup. Some of the ways that this is done is through Community Advisory Groups (CAGs) and Technical Assistance Grants (TAGs).
A CAG is a committee of citizens affected by a hazardous waste site. CAGs are made up of representatives with diverse community interests and provide a public forum for community members to present and discuss their needs and concerns regarding decision-making at a site. Many Superfund sites present communities with complex issues
often requiring expertise in chemistry, engineering, geology, toxicology, and law. A TAG is a grant of up to $50,000 for community groups to hire the technical advisers needed to help.
Developing Partnerships
To achieve success and promote public participation, EPA works with communities, local businesses, large corporations, and State, local, and Tribal governments in the form of partnerships. EPA, through its State and Tribal Enhanced Role Initiative, developed a comprehensive plan to implement equitable sharing of Superfund program responsibilities with interested and capable States and Tribes, resulting in quicker cleanup of more sites. In Mississippi, EPA has entered into a pilot program partnering with a band of Choctaw Native Americans. The pilot supports Tribal efforts in building a greater Superfund capacity with respect to emergency preparedness and response. Through the pilot, the Tribe will learn how to effectively respond to oil and hazardous substance spills and perform environmental assessments at potential waste sites on Tribal lands.
Implementing Technological Innovations
SARA established a preference for treatment of hazardous wastes and created a demand for alternatives to land disposal.
New innovative treatment technologies grew from this demand to provide more permanent, less costly solutions, for dealing with contaminated materials.
The Superfund Innovative Technology Evaluation (SITE) Program was established to meet this increased demand for alternative technologies.
The SITE Program has provided demonstrations of new technologies at particular sites, resulting in average cost savings of over 70 percent per site. The total cost savings for innovative treatment as opposed to conventional treatment is estimated at $2.1 billion.
EPA also promotes the research and development of innovative technologies by sharing the risk with PRPs who select remedies employing low-cost, high performance technologies. EPA will “underwrite” these innovative approaches by agreeing to reimburse up to 50 percent of the cost if the innovative remedy fails and a subsequent remedy is required.
EPA has taken significant steps to reduce litigation, promote earlier settlements, and optimize fairness concerns. By streamlining the enforcement process, EPA is able to reach settlement more quickly on terms that are considered more fair to the responsible parties. This streamlined process allows both EPA and the PRPs to move quickly to clean up sites, and to increase the pace at which contaminated properties are returned to productive use. Since 1992, responsible parties have performed over 70 percent of the new cleanup work at Superfund sites. And over the life of the Superfund program, EPA has reached settlements with private parties valued at over $18 billion.
Removing Legal Barriers and Encouraging Economic Redevelopment
‘‘Audit Policy.’’ The purpose of this Policy is to enhance protection of human health and the environment by encouraging regulated entities to voluntarily discover, promptly disclose and expeditiously correct violations of Federal environmental requirements. The revised Policy was developed in close consultation with the U.S. Department of Justice (DOJ), States, public interest groups and the regulated community.
The Policy includes important safeguards to deter violations and protect public health and the environment. For example, the Policy requires entities to act to prevent recurrence of violations and to remedy any environmental harm that may have occurred. Repeat violations, those that result in actual harm to the environment, and those that may present an imminent and substantial endangerment are not eligible for relief under this Policy. Companies will not be allowed to gain an economic advantage over their competitors by delaying their investment in compliance. And entities remain criminally liable for violations that result from conscious disregard of or willful blindness to their obligations under the law, and individuals remain liable for their criminal misconduct.
When EPA issued the 1995 Audit Policy, the Agency committed to evaluate the Policy after three years. The Agency initiated this evaluation in the Spring of 1998 and published its preliminary results in the Federal Register on May 17, 1999 (64 FR 26745). The evaluation consisted of the following components:
1 An internal survey of EPA staff who process disclosures and handle enforcement cases under the 1995 Audit Policy;
2 A survey of regulated entities that used the 1995 Policy to disclose violations;
3 A series of meetings and conference calls with representatives from industry, environmental organizations, and States;
4 Focused stakeholder discussions on the Audit Policy at two public conferences co-sponsored by EPA’s Office of Enforcement and Compliance Assurance (OECA) and the Vice President’s National Partnership for Reinventing Government, entitled ‘‘Protecting Public Health and the Environment through Innovative Approaches to Compliance’’;
40658 - 40673 Federal Register / Vol. 48, No. 175 / Thursday, September 8, 1983 / Rules and Regulations List of Subjects in 40 CFR Part 300
Air pollution control, Chemicals, Hazardous materials, Intergovernmental relations, Natural resources, Oil pollution, Reporting and recordkeeping requirements, Super fund, Waste treatment and disposal, Water pollution control, Water supply.
PART 300 - [AMENDED] Part 300, Title 40 of the Code of Federal Regulations is hereby amended by adding a new Appendix B, to read as follows:
BILLING CODE 6560-50-M
Appendix B - National Priorities List, Group 2 09 CA Iron Mountain Mine Redding R = FEDERAL AND STATE RESPONSE; Last updated on October 01, 2010
Voluntary or Negotiated Response
Sites are included in this category if private parties are taking response actions pursuant to a consent order or agreement to which EPA is a party. Voluntary or negotiated cleanup may include actions taken pursuant to consent orders reached after EPA has commenced an enforcement action. This category of response may include remedial investigations, feasibility studies, and other preliminary work, as well as actual cleanup.
Several commenters were concerned that this category did not adequately reflect voluntary response efforts undertaken without formal agreements with EPA. However, EPA studies have shown that many of the response actions undertaken by private parties outside the sanction of EPA consent agreements have not been successful. Furthermore, some private parties have represented routine maintenance or waste management activities as response actions, thereby leading to the conclusion that only after a thorough technical review can the Agency describe actions by private parties as "responses". Thus, EPA believes that to describe actions taken outside consent orders as "response" would in many instances be misleading to the public as EPA cannot assure the public that the actions are appropriate, adequate, consistent with the NCP, and are being fully implemented. Therefore, the Agency encourages any responsible parties who are undertaking voluntary response actions at NPL sites to contact the Agency to negotiate consent agreements.
This is not intended to preclude responsible parties from taking voluntary response actions outside of a consent agreement. However, in order for the site to be deleted or to be noted in the voluntary or negotiated response category, EPA must still sanction the completed cleanup. If the remedial action is not fully implemented or is not consistent with the NCP, the responsible party may be subject to an enforcement action. Therefore, most responsible parties may find it in their best interest to negotiate a consent agreement.
Federal and State Response
The Federal and State Response category includes sites at which EPA or State agencies have commenced or completed removal or remedial actions under CERCLA, including, remedial investigations and feasibility studies (see NCP, § 300.68 (f)-(i), 47 FR 31217, July 16, 1982). For purposes of this categorization, EPA considers the response action to have commenced when EPA has obligated funds. For some of the sites in this category EPA may follow remedial investigations and feasibility studies with enforcement actions, at which time the site status would change to "Federal or State Enforcement."
Federal or State Enforcement
This category includes sites where the United States or the State has filed a civil complaint or issued an administrative order. It also includes sites at which a Federal or State court has mandated some form of non-consensual response action following a judicial proceeding. It may not, however, include all sites at which preliminary enforcement activities are underway. A number of sites on the NPL are the subject of enforcement investigation or have been formally referred to the Department of Justice for enforcement action. EPA's policy is not to release information concerning a possible enforcement action until a lawsuit has been filed. Accordingly, these sites have not been included in the enforcement category. [FR Doc. 83-24538 Filed 9-7-83; 8:45 am]
Federal Environmental Executive to Speak
Meeting attendees will also hear Joe Cascio, U.S. Federal Environmental Executive, illustrate the dramatic impact of the federal government's consumption of goods and services and how that purchasing power can be harnessed to create positive environmental change. For example, the government:
is the country's largest buyer/user of energy ($3.5 billion/year)
accounts for 7% of the world's information technology purchases
controls a real estate portfolio of more than 1.2 million assets, including more than 550,000 buildings
“Champions of Environmental Leadership and Green Government”
Participating Federal Green Challenge agencies, entities and facilities include: the U.S. Environmental Protection Agency; General Services Administration, U.S Army Corps. of Engineers; the National Park Service; Bureau of Land Management; the U.S. Department of Housing and Urban Development, the Federal Aviation Administration; Social Security Administration; National Oceanic and Atmospheric Administration, U.S. Coast Guard; U.S. Fish & Wildlife Service; U.S. Department of Agriculture (Forest Service, National Resource Conservation Service, Rural Development); U.S. Department of Transportation (Federal Transit Administration) and the U.S. Geological Survey, the Bonneville Power Administration and the U.S. Army (Fort Lewis, WA).
The Superfund Redevelopment Initiative (SRI) was announced in 1999, but the effort to return Superfund sites to productive use has been in place for a number of years. Building on the Superfund Reforms and the Brownfields Initiative, EPA has put in place a coordinated national program to make certain that communities have the tools and information needed to realize the potential of reusing Superfund sites.
Fulfilling the Promise of Earth Day
“We all have a stake in the quality of our water,” said EPA Regional Administrator Richard E. Greene. “Ensuring the sustainability of our nation's waters is not just an EPA challenge -- it is everyone's challenge.
Personal Sustainability Project Challenge, which coincides with Hispanic Heritage Month and encourages people to select an action they are willing to commit to improve their efforts towards sustainability.
Section 427 of Public Law 106–74 (113 Stat. 1095) added the phrase ‘‘through seizure or otherwise in connection with law enforcement activity’’ before ‘‘involuntary’’ the first place it appears. It was inserted after ‘‘involuntarily’’ as the probable intent of Congress.
Sec. 427. Law Enforcement Agencies Not Included as Owner or Operator. Section 101(20)(D) of the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (42 U.S.C. 9601(20)(D)) is amended by inserting ``through seizure
(D) The term ``owner or operator'' does not include a unit of State or local government which acquired ownership or control involuntarily through bankruptcy, tax delinquency, abandonment, or other circumstances in which the government involuntarily acquires title by virtue of its function as sovereign. The exclusion provided under this paragraph shall not apply to any State or local government which has caused or contributed to the release or threatened release of a hazardous substance from the facility, and such a State or local government shall be subject to the provisions of this chapter in the same manner and to the same extent, both procedurally and substantively, as any nongovernmental entity, including liability under section 9607 of this title.
Sec. 431. Promulgation <<NOTE: Reports.>> of Stormwater Regulations. (a) Stormwater Regulations.--The Administrator of the Environmental Protection Agency shall not promulgate the Phase II stormwater regulations until the Administrator submits to the Committee on Environment and Public Works of the Senate and the Committee on Transportation and Infrastructure of the House of Representatives a report containing-- (1) an in-depth impact analysis on the effect the final regulations will have on urban, suburban, and rural local governments subject to the regulations, including an estimate of-- (A) the costs of complying with the six minimum control measures described in the regulations; and (B) the costs resulting from the lowering of the construction threshold from 5 acres to 1 acre; (2) an explanation of the rationale of the Administrator for lowering the construction site threshold from 5 acres to 1 acre, including-- (A) an explanation, in light of recent court decisions, of why a 1-acre measure is any less arbitrarily determined than a 5-acre measure; and (B) all qualitative information used in determining an acre threshold for a construction site; (3) documentation demonstrating that stormwater runoff is generally a problem in communities with populations of 50,000 to 100,000 (including an explanation of why the coverage of the regulation is based on a census-determined population instead of a water quality threshold); and (4) information that supports the position of the Administrator that the Phase II stormwater program should be administered as part of the National Pollutant Discharge Elimination System under section 402 of the Federal Water Pollution Control Act (33 U.S.C. 1342). (b) Phase <<NOTE: Deadline. Reports.>> I Regulations.--No later than 120 days after the enactment of this Act, the Environmental Protection Agency shall submit to the Environment and Public Works Committee of the Senate and the Committee on Transportation and Infrastructure of the House of Representatives a report containing a detailed explanation of the impact, if any, that the Phase I program has had in improving water quality in the United States (including [[Page 113 STAT. 1097]] a description of specific measures that have been successful and those that have been unsuccessful). (c) Federal Register.--The reports described in subsections (a) and (b) shall be published in the Federal Register for public comment. Sec. 432. Pesticide Tolerance Fees. None of the funds appropriated or otherwise made available by this Act shall be used to promulgate a final regulation to implement changes in the payment of pesticide tolerance processing fees as proposed at 64 Fed. Reg. 31040, or any similar proposals. The Environmental Protection Agency may proceed with the development of such a rule.
Source ( Pub. L. 96–510 , title I, § 101, Dec. 11, 1980, 94 Stat. 2767 ; Pub. L. 96–561 , title II, § 238(b), Dec. 22, 1980, 94 Stat. 3300 ; Pub. L. 99–499 , title I, §§ 101, 114 (b) , 127 (a), title V, § 517(c)(2), Oct. 17, 1986, 100 Stat. 1615 , 1652, 1692, 1774; Pub. L. 100–707 , title I, § 109(v), Nov. 23, 1988, 102 Stat. 4710 ; Pub. L. 103–429 , § 7(e)(1), Oct. 31, 1994, 108 Stat. 4390 ; Pub. L. 104–208 , div. A, title I, § 101(a) [title II, § 211(b)], title II, § 2502(b), Sept. 30, 1996, 110 Stat. 3009 , 3009–41, 3009–464; Pub. L. 104–287 , § 6(j)(1), Oct. 11, 1996, 110 Stat. 3399 ; Pub. L. 106–74 , title IV, § 427, Oct. 20, 1999, 113 Stat. 1095 ; Pub. L. 107–118 , title II, §§ 211(a), 222 (a) , 223 , 231 (a) , Jan. 11, 2002, 115 Stat. 2360 , 2370, 2372, 2375.) References in Text
This chapter, referred to in pars. (5), (13), (20)(D), (G), (35)(C), (D), (39)(B)(iii), and (40)(G), was in the original “this Act”, meaning Pub. L. 96–510 , Dec. 11, 1980, 94 Stat. 2767 , as amended, known as the Comprehensive Environmental Response, Compensation, and Liability Act of 1980. For complete classification of this Act to the Code, see Short Title note below and Tables. The Safe Drinking Water Act, referred to in pars. (7), (10), and (39)(B)(iv), is title XIV of act July 1, 1944, as added Dec. 16, 1974, Pub. L. 93–523 , § 2(a), 88 Stat. 1660, as amended, which is classified generally to subchapter XII (§ 300f et seq.) of chapter 6A of this title. Part C of the Safe Drinking Water Act is classified generally to part C (§ 300h et seq.) of subchapter XII of chapter 6A of this title. For complete classification of this Act to the Code, see Short Title note set out under section 201 of this title and Tables. The Magnuson-Stevens Fishery Conservation and Management Act, referred to in pars. (8) and (16), is Pub. L. 94–265 , Apr. 13, 1976, 90 Stat. 331 , as amended, which is classified principally to chapter 38 (§ 1801 et seq.) of Title 16, Conservation. The fishery conservation zone established by this Act, referred to in par. (16), was established by section 101 of this Act ( 16 U.S.C. 1811 ), which as amended generally by Pub. L. 99–659 , title I, § 101(b), Nov. 14, 1986, 100 Stat. 3706 , relates to United States sovereign rights and fishery management authority over fish within the exclusive economic zone as defined in section 1802 of Title 16 . For complete classification of this Act to the Code, see Short Title note set out under section 1801 of Title 16 and Tables. The Clean Air Act, referred to in par. (10), is act July 14, 1955, ch. 360, as amended generally by Pub. L. 88–206 , Dec. 17, 1963, 77 Stat. 392 , and later by Pub. L. 95–95 , Aug. 7, 1977, 91 Stat. 685 . The Clean Air Act was originally classified to chapter 15B (§ 1857 et seq.) of this title. On enactment of Pub. L. 95–95 , the Act was reclassified to chapter 85 (§ 7401 et seq.) of this title. Parts C and D of title I of the Clean Air Act are classified generally to parts C (§ 7470 et seq.) and D (§ 7501 et seq.), respectively, of subchapter I of chapter 85 of this title. For complete classification of this Act to the Code, see Short Title note set out under section 7401 of this title and Tables. The Atomic Energy Act of 1954, referred to in pars. (10) and (22), is act Aug. 1, 1946, ch. 724, as added by act Aug. 30, 1954, ch. 1073, § 1, 68 Stat. 921 , and amended, which is classified generally to chapter 23 (§ 2011 et seq.) of this title. For complete classification of this Act to the Code, see Short Title note set out under section 2011 of this title and Tables. The Solid Waste Disposal Act, referred to in pars. (14), (39)(B)(iv), (vi)(I), (ix), and (41)(B)(i), is title II of Pub. L. 89–272 , Oct. 20, 1965, 79 Stat. 997 , as amended generally by Pub. L. 94–580 , § 2, Oct. 21, 1976, 90 Stat. 2795 , which is classified generally to chapter 82 (§ 6901 et seq.) of this title. Subtitles C and I of the Act are classified generally to subchapters III (§ 6921 et seq.) and IX (§ 6991 et seq.), respectively, of chapter 82 of this title. For complete classification of this Act to the Code, see Short Title note set out under section 6901 of this title and Tables. The Farm Credit Act of 1971, referred to in par. (20)(G)(iv)(III), is Pub. L. 92–181 , Dec. 10, 1971, 85 Stat. 583 , as amended, which is classified generally to chapter 23 (§ 2001 et seq.) of Title 12, Banks and Banking. For complete classification of this Act to the Code, see Short Title note set out under section 2001 of Title 12 and Tables. The Disaster Relief and Emergency Assistance Act, referred to in par. (23), is Pub. L. 93–288 , May 22, 1974, 88 Stat. 143 , as amended, known as the Robert T. Stafford Disaster Relief and Emergency Assistance Act, which is classified principally to chapter 68 (§ 5121 et seq.) of this title. For complete classification of this Act to the Code, see Short Title note set out under section 5121 of this title and Tables. The Federal Water Pollution Control Act, referred to in par. (39)(B)(iv), is act June 30, 1948, ch. 758, as amended generally by Pub. L. 92–500 , § 2, Oct. 18, 1972, 86 Stat. 816 , also known as the Clean Water Act, which is classified generally to chapter 26 (§ 1251 et seq.) of Title 33, Navigation and Navigable Waters. Section 311(c) of the Act was amended generally by Pub. L. 101–380 , title IV, § 4201(a), Aug. 18, 1990, 104 Stat. 523 , and no longer contains provisions directing the publishing of a National Contingency Plan. However, such provisions are contained in section 1321 (d) of Title 33 . For complete classification of this Act to the Code, see Short Title note set out under section 1251 of Title 33 and Tables. The Toxic Substances Control Act, referred to in par. (39)(B)(iv), (viii)(II), is Pub. L. 94–469 , Oct. 11, 1976, 90 Stat. 2003 , as amended, which is classified generally to chapter 53 (§ 2601 et seq.) of Title 15, Commerce and Trade. For complete classification of this Act to the Code, see Short Title note set out under section 2601 of Title 15 and Tables. Amendments
2002—Par. (35)(A). Pub. L. 107–118 , § 223(1), in introductory provisions substituted “deeds, easements, leases, or” for “deeds or” and in concluding provisions substituted “the defendant has satisfied” for “he has satisfied” and inserted before period at end “, provides full cooperation, assistance, and facility access to the persons that are authorized to conduct response actions at the facility (including the cooperation and access necessary for the installation, integrity, operation, and maintenance of any complete or partial response action at the facility), is in compliance with any land use restrictions established or relied on in connection with the response action at a facility, and does not impede the effectiveness or integrity of any institutional control employed at the facility in connection with a response action”. Par. (35)(B). Pub. L. 107–118 , § 223(2), added subpar. (B) and struck out former subpar. (B) which read as follows: “To establish that the defendant had no reason to know, as provided in clause (i) of subparagraph (A) of this paragraph, the defendant must have undertaken, at the time of acquisition, all appropriate inquiry into the previous ownership and uses of the property consistent with good commercial or customary practice in an effort to minimize liability. For purposes of the preceding sentence the court shall take into account any specialized knowledge or experience on the part of the defendant, the relationship of the purchase price to the value of the property if uncontaminated, commonly known or reasonably ascertainable information about the property, the obviousness of the presence or likely presence of contamination at the property, and the ability to detect such contamination by appropriate inspection.” Par. (39). Pub. L. 107–118 , § 211(a), added par. (39). Par. (40). Pub. L. 107–118 , § 222(a), added par. (40). Par. (41). Pub. L. 107–118 , § 231(a), added par. (41). 1999—Par. (20)(D). Pub. L. 106–74 , which directed the amendment of subpar. (D) by inserting “through seizure or otherwise in connection with law enforcement activity” before “involuntary” the first place it appears, could not be executed because the word “involuntary” does not appear in subpar. (D). 1996—Pars. (8), (16). Pub. L. 104–208 , § 101(a) [title II, § 211(b)], substituted “Magnuson-Stevens Fishery” for “Magnuson Fishery”. Par. (20)(E) to (G). Pub. L. 104–208 , § 2502(b), added subpars. (E) to (G). Par. (26). Pub. L. 104–287 substituted “section 60101 (a) of title 49 ” for “the Pipeline Safety Act”. 1994—Par. (26). Pub. L. 103–429 substituted “a hazardous liquid pipeline facility” for “pipeline”. 1988—Par. (23). Pub. L. 100–707 substituted “Disaster Relief and Emergency Assistance Act” for “Disaster Relief Act of 1974”. 1986— Pub. L. 99–499 , § 101(f), struck out “, the term” after “subchapter” in introductory text. Pars. (1) to (10). Pub. L. 99–499 , § 101(f), inserted “The term” and substituted a period for the semicolon at end. Par. (11). Pub. L. 99–499 , § 517(c)(2), amended par. (11) generally. Prior to amendment, par. (11) read as follows: “The term ‘Fund' or ‘Trust Fund' means the Hazardous Substance Response Fund established by section 9631 of this title or, in the case of a hazardous waste disposal facility for which liability has been transferred under section 9607 (k) of this title, the Post-closure Liability Fund established by section 9641 of this title.” Pub. L. 99–499 , § 101(f), inserted “The term” and substituted a period for the semicolon at end. Pars. (12) to (15). Pub. L. 99–499 , § 101(f), inserted “The term” and substituted a period for the semicolon at end. Par. (16). Pub. L. 99–499 , § 101(a), (f), inserted “The term”, struck out “or” after “local government,” inserted “, any Indian tribe, or, if such resources are subject to a trust restriction on alienation, any member of an Indian tribe”, and substituted a period for the semicolon at end. Pars. (17) to (19). Pub. L. 99–499 , § 101(f), inserted “The term” and substituted a period for the semicolon at end. Par. (20)(A). Pub. L. 99–499 , § 101(f), inserted “The term”. Pub. L. 99–499 , § 101(b)(2), amended cl. (iii) generally. Prior to amendment, cl. (iii) read as follows: “in the case of any abandoned facility, any person who owned, operated, or otherwise controlled activities at such facility immediately prior to such abandonment.” Pub. L. 99–499 , § 101(b)(3), in provisions following subcl. (iii), substituted a period for the semicolon at end. Par. (20)(B), (C). Pub. L. 99–499 , § 101(b)(3), substituted “In the case” for “in the case” and a period for the semicolon at end. Par. (20)(D). Pub. L. 99–499 , § 101(b)(1), (f), added subpar. (D). The part of § 101(f) of Pub. L. 99–499 which directed the amendment of par. (20) by changing the semicolon at end to a period could not be executed in view of the prior amendment of par. (20) by § 101(b)(1) of Pub. L. 99–499 which added subpar. (D) ending in a period. Par. (21). Pub. L. 99–499 , § 101(f), inserted “The term” and substituted a period for the semicolon at end. Par. (22). Pub. L. 99–499 , § 101(c), (f), inserted “The term” and “(including the abandonment or discarding of barrels, containers, and other closed receptacles containing any hazardous substance or pollutant or contaminant)”, substituted a period for the semicolon at end. Par. (23). Pub. L. 99–499 , § 101(f), inserted “The terms” and substituted a period for the semicolon at end. Par. (24). Pub. L. 99–499 , § 101(d), (f), inserted “The terms” and substituted “and associated contaminated materials” for “or contaminated materials” and “welfare; the term includes offsite transport and offsite storage, treatment, destruction, or secure disposition of hazardous substances and associated contaminated materials.” for “welfare. The term does not include offsite transport of hazardous substances, or the storage, treatment, destruction, or secure disposition offsite of such hazardous substances or contaminated materials unless the President determines that such actions (A) are more cost-effective than other remedial actions, (B) will create new capacity to manage, in compliance with subtitle C of the Solid Waste Disposal Act [ 42 U.S.C. 6921 et seq.], hazardous substances in addition to those located at the affected facility, or (C) are necessary to protect public health or welfare or the environment from a present or potential risk which may be created by further exposure to the continued presence of such substances or materials;”. The part of § 101(f) of Pub. L. 99–499 which directed amendment of par. (24) by changing the semicolon at end to a period could not be executed in view of prior amendment of par. (24) by § 101(d) of Pub. L. 99–499 which substituted language at end of par. (24) ending in a period for former language ending in a semicolon. Par. (25). Pub. L. 99–499 , § 101(e), (f), inserted “The terms” and “, all such terms (including the terms ‘removal' and ‘remedial action') include enforcement activities related thereto.” The part of § 101(f) of Pub. L. 99–499 which directed amendment of par. (25) by changing the semicolon at end to a period could not be executed in view of prior amendment of par. (25) by § 101(e) of Pub. L. 99–499 inserting language and a period at end of par. (25). Pars. (26), (27). Pub. L. 99–499 , § 101(f), inserted “The terms” and substituted a period for the semicolon at end. Par. (28). Pub. L. 99–499 , § 101(f), inserted “The term” and substituted a period for the semicolon at end. Par. (29). Pub. L. 99–499 , § 101(f), inserted “The terms” and substituted a period for the semicolon at end. Par. (30). Pub. L. 99–499 , § 101(f), inserted “The terms”. Par. (31). Pub. L. 99–499 , § 101(f), inserted “The term” and substituted a period for “; and”. Par. (32). Pub. L. 99–499 , § 101(f), inserted “The terms”. Pars. (33) to (36). Pub. L. 99–499 , § 101(f), added pars. (33) to (36). Par. (37). Pub. L. 99–499 , § 114(b), added par. (37). Par. (38). Pub. L. 99–499 , § 127(a), added par. (38). 1980—Pars. (8), (16). Pub. L. 96–561 substituted “Magnuson Fishery Conservation and Management Act” for “Fishery Conservation and Management Act of 1976”. Effective Date of 1996 Amendment
Section 101 (a) [title II, § 211(b)] of div. A of Pub. L. 104–208 provided that the amendment made by that section is effective 15 days after Oct. 11, 1996. Amendment by section 2502(b) of Pub. L. 104–208 applicable with respect to any claim that has not been finally adjudicated as of Sept. 30, 1996, see section 2505 of Pub. L. 104–208 , set out as a note under section 6991b of this title. Effective Date of 1986 Amendment
Section 4 of Pub. L. 99–499 provided that: “Except as otherwise specified in section 121(b) of this Act [set out as an Effective Date note under section 9621 of this title] or in any other provision of titles I, II, III, and IV of this Act [see Tables for classification], the amendments made by titles I through IV of this Act [enacting subchapter IV of this chapter and sections 9616 to 9626 , 9658 to 9660 , and 9661 of this title and sections 2701 to 2707 and 2810 of Title 10 , Armed Forces, amending sections 6926 , 6928 , 6991 to 6991d , 6991g , 9601 to 9609 , 9611 to 9614 , 9631 , 9651 , 9656 , and 9657 of this title and section 1416 of Title 33 , Navigation and Navigable Waters, and renumbering former section 2701 of Title 10 as section 2721 of Title 10 ] shall take effect on the enactment of this Act [Oct. 17, 1986].” Amendment by section 517(c)(2) of Pub. L. 99–499 effective Jan. 1, 1987, see section 517(e) of Pub. L. 99–499 , set out as an Effective Date note under section 9507 of Title 26 , Internal Revenue Code. Effective Date of 1980 Amendment
Section 238(b) of Pub. L. 96–561 provided that the amendment made by that section is effective 15 days after Dec. 22, 1980. Short Title of 2002 Amendments Pub. L. 107–118 , § 1, Jan. 11, 2002, 115 Stat. 2356 , provided that: “This Act [enacting section 9628 of this title, amending this section and sections 9604 , 9605 , 9607 , and 9622 of this title, and enacting provisions set out as notes under this section and section 9607 of this title] may be cited as the ‘Small Business Liability Relief and Brownfields Revitalization Act'.” Pub. L. 107–118 , title I, § 101, Jan. 11, 2002, 115 Stat. 2356 , provided that: “This title [amending sections 9607 and 9622 of this title and enacting provisions set out as a note under section 9607 of this title] may be cited as the ‘Small Business Liability Protection Act'.” Pub. L. 107–118 , title II, § 201, Jan. 11, 2002, 115 Stat. 2360 , provided that: “This title [enacting section 9628 of this title and amending this section and sections 9604 , 9605 , and 9607 of this title] may be cited as the ‘Brownfields Revitalization and Environmental Restoration Act of 2001'.” Short Title of 1996 Amendment
Section 2501 of div. A of Pub. L. 104–208 provided that: “This subtitle [subtitle E (§§ 2501–2505) of title II of div. A of Pub. L. 104–208 , amending this section and sections 6991b and 9607 of this title and enacting provisions set out as a note under section 6991b of this title] may be cited as the ‘Asset Conservation, Lender Liability, and Deposit Insurance Protection Act of 1996'.” Short Title of 1992 Amendment Pub. L. 102–426 , § 1, Oct. 19, 1992, 106 Stat. 2174 , provided that: “This Act [amending section 9620 of this title and enacting provisions set out as a note under section 9620 of this title] may be cited as the ‘Community Environmental Response Facilitation Act'.” Short Title of 1986 Amendment
Section 1 of Pub. L. 99–499 provided that: “This Act [enacting subchapter IV of this chapter and sections 9616 to 9626 , 9658 to 9662 , 11001 to 11005 , 11021 to 11023 , and 11041 to 11050 of this title, sections 2701 to 2707 and 2810 of Title 10 , Armed Forces, and sections 59A , 4671 , 4672 , 9507 , and 9508 of Title 26 , Internal Revenue Code, amending this section, sections 6926 , 6928 , 6991 to 6991d , 6991g , 9602 to 9609 , 9611 to 9614 , 9631 , 9651 , 9656 , and 9657 of this title, sections 26 , 164 , 275 , 936 , 1561 , 4041 , 4042 , 4081 , 4221 , 4611 , 4612 , 4661 , 4662 , 6154 , 6416 , 6420 , 6421 , 6425 , 6427 , 6655 , 9502 , 9503 , and 9506 of Title 26 , and section 1416 of Title 33 , Navigation and Navigable Waters, renumbering former section 2701 of Title 10 as section 2721 of Title 10 , repealing sections 9631 to 9633 , 9641 , and 9653 of this title and sections 4681 and 4682 of Title 26 , and enacting provisions set out as notes under this section, sections 6921 , 6991b , 7401 , 9620 , 9621 , 9658 , 9660 , 9661 , and 11001 of this title, section 2703 of Title 10 , sections 1, 26, 4041, 4611, 4661, 4671, 4681 , 9507, and 9508 of Title 26, and section 655 of Title 29 , Labor] may be cited as the ‘Superfund Amendments and Reauthorization Act of 1986'.” Short Title
Section 1 of Pub. L. 96–510 provided: “That this Act [enacting this chapter, section 6911a of this title, and sections 4611 , 4612 , 4661 , 4662 , 4681 , and 4682 of Title 26 , Internal Revenue Code, amending section 6911 of this title, section 1364 of Title 33 , Navigation and Navigable Waters, and section 11901 of Title 49 , Transportation, and enacting provisions set out as notes under section 6911 of this title and sections 1 and 4611 of Title 26 ] may be cited as the ‘Comprehensive Environmental Response, Compensation, and Liability Act of 1980'.” Transfer of Functions
For transfer of certain functions from Nuclear Regulatory Commission to Chairman thereof, see Reorg. Plan No. 1 of 1980, 45 F.R. 40561 , 94 Stat. 3585 , set out as a note under section 5841 of this title. Territorial Sea and Contiguous Zone of United States
For extension of territorial sea and contiguous zone of United States, see Proc. No. 5928 and Proc. No. 7219, respectively, set out as notes under section 1331 of Title 43 , Public Lands. Definitions
Section 2 of Pub. L. 99–499 provided that: “As used in this Act [see Short Title of 1986 Amendment note above]— “(1) CERCLA.—The term ‘CERCLA' means the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 ( 42 U.S.C. 9601 et seq.). “(2) Administrator.—The term ‘Administrator' means the Administrator of the Environmental Protection Agency.”
Cooperation
Under Section D(9), the regulated entity must cooperate as required by EPA and provide the Agency with the information it needs to determine Policy applicability. The entity must not hide, destroy or tamper with possible evidence following discovery of potential environmental violations. In order for the Agency to apply the Policy fairly, it must have sufficient information to determine whether its conditions are satisfied in each individual case. In general, EPA requests audit reports to determine the applicability of this Policy only where the information contained in the audit report is not readily available elsewhere and where EPA decides that the information is necessary to determine whether the terms and conditions of the Policy have been met. In the rare instance where an EPA Regional office seeks to obtain an audit report because it is otherwise unable to determine whether Policy conditions have been met, the Regional office will notify the Office of Regulatory Enforcement at EPA headquarters.
Entities that disclose potential criminal violations may expect a more thorough review by the Agency. In criminal cases, entities will be expected to provide, at a minimum, the following: access to all requested documents; access to all employees of the disclosing entity; assistance in investigating the violation, any noncompliance problems related to the disclosure, and any environmental consequences related to the violations; access to all information relevant to the violations disclosed, including that portion of the environmental audit report or documentation from the compliance management system that revealed the violation; and access to the individuals who conducted the audit or review.
F. Opposition to Audit Privilege and Immunity
The Agency believes that the Audit Policy provides effective incentives for self-policing without impairing law enforcement, putting the environment at risk or hiding environmental compliance information from the public. Although EPA encourages environmental auditing, it must do so without compromising the integrity and enforceability of environmental laws. It is important to distinguish between EPA's Audit Policy and the audit privilege and immunity laws that exist in some States. The Agency remains firmly opposed to statutory and regulatory audit privileges and immunity. Privilege laws shield evidence of wrongdoing and prevent States from investigating even the most serious environmental violations. Immunity laws prevent States from obtaining penalties that are appropriate to the seriousness of the violation, as they are required to do under Federal law. Audit privilege and immunity laws are unnecessary, undermine law enforcement, impair protection of human health and the environment, and interfere with the public's right to know of potential and existing environmental hazards.
Statutory audit privilege and immunity run counter to encouraging the kind of openness that builds trust between regulators, the regulated community and the public. For example, privileged information on compliance contained in an audit report may include information on the cause of violations, the extent of environmental harm, and what is necessary to correct the violations and prevent their recurrence. Privileged information is unavailable to law enforcers and to members of the public who have suffered harm as a result of environmental violations. The Agency opposes statutory immunity because it diminishes law enforcement's ability to discourage wrongful behavior and interferes with a regulator's ability to punish individuals who disregard the law and place others in danger. The Agency believes that its Audit Policy provides adequate incentives for self-policing but without secrecy and without abdicating its discretion to act in cases of serious environmental violations.
Privilege, by definition, invites secrecy, instead of the openness needed to build public trust in industry's ability to self-police. American law reflects the high value that the public places on fair access to the facts. The Supreme Court, for example, has said of privileges that, ‘‘ [w]hatever their origins, these exceptions to the demand for every man's evidence are not lightly created nor expansively construed, for they are in derogation of the search for truth.'' United States v. Nixon , 418 U.S. 683, 710 (1974). Federal courts have unanimously refused to recognize a privilege for environmental audits in the context of government investigations. See, e.g., United States v. Dexter Corp., 132 F.R.D. 8, 10 (D.Conn. 1990) (application of a privilege ‘‘would effectively impede [EPA's] ability to enforce the Clean Water Act, and would be contrary to stated public policy.'') Cf. In re Grand Jury Proceedings, 861 F. Supp. 386 (D. Md. 1994) (company must comply with a subpoena under Food, Drug and Cosmetics Act for self-evaluative documents).
Applicability
(1) This Policy applies to settlement of claims for civil penalties for any violations under all of the Federal environmental statutes that EPA administers, and supersedes any inconsistent provisions in media-specific penalty or enforcement policies and EPA's 1995 Policy on ‘‘Incentives for Self-Policing: Discovery, Disclosure, Correction and Prevention of Violations.''
(2) To the extent that existing EPA enforcement policies are not inconsistent, they will continue to apply in conjunction with this Policy. However, a regulated entity that has received penalty mitigation for satisfying specific conditions under this Policy may not receive additional penalty mitigation for satisfying the same or similar conditions under other policies for the same violation, nor will this Policy apply to any violation that has received penalty mitigation under other policies. Where an entity has failed to meet any of conditions D(2) through D(9) and is therefore not eligible for penalty relief under this Policy, it may still be eligible for penalty.
Relief under other EPA media-specific enforcement policies in recognition of good faith efforts, even where, for example, the violation may have presented an imminent and substantial endangerment or resulted in serious actual harm.
(3) This Policy sets forth factors for consideration that will guide the Agency in the exercise of its enforcement discretion. It states the Agency's views as to the proper allocation of its enforcement resources. The Policy is not final agency action and is intended as guidance. This Policy is not intended, nor can it be relied upon, to create any rights enforceable by any party in litigation with the United States . As with the 1995 Audit Policy, EPA may decide to follow guidance provided in this document or to act at variance with it based on its analysis of the specific facts presented. This Policy may be revised without public notice to reflect changes in EPA's approach to providing incentives for self-policing by regulated entities, or to clarify and update text.
(4) This Policy should be used whenever applicable in settlement negotiations for both administrative and civil judicial enforcement actions. It is not intended for use in pleading, at hearing or at trial. The Policy may be applied at EPA's discretion to the settlement of administrative and judicial enforcement actions instituted prior to, but not yet resolved, as of the effective date of this Policy.
(5) For purposes of this Policy, violations discovered pursuant to an environmental audit or compliance management system may be considered voluntary even if required under an Agency ‘‘partnership'' program in which the entity participates, such as regulatory flexibility pilot projects like Project XL. EPA will consider application of the Audit Policy to such partnership program projects on a project-by-project basis.
(6) EPA has issued interpretive guidance addressing several applicability issues pertaining to the Audit Policy. Entities considering whether to take advantage of the Audit Policy should review that guidance to see if it addresses any relevant questions. The guidance can be found on the Internet at www.epa.gov/oeca/ ore/apolguid.html.
H. Public Accountability
EPA will make publicly available the terms and conditions of any compliance agreement reached under this Policy, including the nature of the violation, the remedy, and the schedule for returning to compliance.
I. Effective Date
in Kellev v. EPA,4 the Circuit 'Courtof Appeals for. the District of Columbia vacated the Rule on the ground that 'EPA lacked authority to issue'the Rule as a binding regulation.
Nevertheless, the Kpllev decision did not preclude.EPAand DOJ from following the provisions of the Rule as enforcement policy, and the agencies have generally done so.
This revised Policy is effective May 11, 2000.
Dated: March 30, 2000.
Steven A. Herman,
Assistant Administrator for Enforcement and Compliance Assurance.
(a) This subpart establishes methods and criteria for determining the appropriate extent of response authorized by CERCLA and CWA section 311(c):
(1) When there is a release of a hazardous substance into the environment; or
(2) When there is a release into the environment of any pollutant or contaminant that may present an imminent and substantial danger to the public health or welfare of the United States.
(b) Limitations on response. Unless the lead agency determines that a release constitutes a public health or environmental emergency and no other person with the authority and capability to respond will do so in a timely manner, a removal or remedial action under section 104 of CERCLA shall not be undertaken in response to a release:
(1) Of a naturally occurring substance in its unaltered form, or altered solely through naturally occurring processes or phenomena, from a location where it is naturally found;
(2) From products that are part of the structure of, and result in exposure within, residential buildings or business or community structures; or
(3) Into public or private drinking water supplies due to deterioration of the system through ordinary use.
(c) Fund-financed action. In determining the need for and in planning or undertaking Fund-financed action, the lead agency shall, to the extent practicable:
(1) Engage in prompt response;
(2) Provide for state participation in response actions, as described in subpart F of this part;
(3) Conserve Fund monies by encouraging private party response;
(4) Be sensitive to local community concerns;
(5) Consider using treatment technologies;
(6) Involve the Regional Response Team (RRT) in both removal and remedial response actions at appropriate decision-making stages;
(7) Encourage the involvement and sharing of technology by industry and other experts; and
(8) Encourage the involvement of organizations to coordinate responsible party actions, foster site response, and provide technical advice to the public, federal and state governments, and industry.
(d) Entry and access. (1) For purposes of determining the need for response, or choosing or taking a response action, or otherwise enforcing the provisions of CERCLA, EPA, or the appropriate federal agency, and a state or political subdivision operating pursuant to a contract or cooperative agreement under CERCLA section 104(d)(1), has the authority to enter any vessel, facility, establishment or other place, property, or location described in paragraph (d)(2) of this section and conduct, complete, operate, and maintain any response actions authorized by CERCLA or these regulations.
(2)(i) Under the authorities described in paragraph (d)(1) of this section, EPA, or the appropriate federal agency, and a state or political subdivision operating pursuant to a contract or cooperative agreement under CERCLA section 104(d)(1), may enter:
(A) Any vessel, facility, establishment, or other place or property where any hazardous substance or pollutant or contaminant may be or has been generated, stored, treated, disposed of, or transported from;
(B) Any vessel, facility, establishment, or other place or property from which, or to which, a hazardous substance or pollutant or contaminant has been, or may have been, released or where such release is or may be threatened;
(C) Any vessel, facility, establishment, or other place or property where entry is necessary to determine the need for response or the appropriate response or to effectuate a response action; or
(D) Any vessel, facility, establishment, or other place, property, or location adjacent to those vessels, facilities, establishments, places, or properties described in paragraphs (d)(2)(i)(A), (B), or (C) of this section.
(ii) Once a determination has been made that there is a reasonable basis to believe that there has been or may be a release, EPA, or the appropriate federal agency, and a state or political subdivision operating pursuant to a contract or cooperative agreement under CERCLA section 104(d)(1), is authorized to enter all vessels, facilities, establishments, places, properties, or locations specified in paragraph (d)(2)(i) of this section, at which the release is believed to be, and all other vessels, facilities, establishments, places, properties, or locations identified in paragraph (d)(2)(i) of this section that are related to the response or are necessary to enter in responding to that release.
(3) The lead agency may designate as its representative solely for the purpose of access, among others, one or more potentially responsible parties, including representatives, employees, agents, and contractors of such parties. EPA, or the appropriate federal agency, may exercise the authority contained in section 104(e) of CERCLA to obtain access for its designated representative. A potentially responsible party may only be designated as a representative of the lead agency where that potentially responsible party has agreed to conduct response activities pursuant to an administrative order or consent decree.
(4)(i) If consent is not granted under the authorities described in paragraph (d)(1) of this section, or if consent is conditioned in any manner, EPA, or the appropriate federal agency, may issue an order pursuant to section 104(e)(5) of CERCLA directing compliance with the request for access made under §300.400(d)(1). EPA or the appropriate federal agency may ask the Attorney General to commence a civil action to compel compliance with either a request for access or an order directing compliance.
(ii) EPA reserves the right to proceed, where appropriate, under applicable authority other than CERCLA section 104(e).
(iii) The administrative order may direct compliance with a request to enter or inspect any vessel, facility, establishment, place, property, or location described in paragraph (d)(2) of this section.
(iv) Each order shall contain:
(A) A determination by EPA, or the appropriate federal agency, that it is reasonable to believe that there may be or has been a release or threat of a release of a hazardous substance or pollutant or contaminant and a statement of the facts upon which the determination is based;
(B) A description, in light of CERCLA response authorities, of the purpose and estimated scope and duration of the entry, including a description of the specific anticipated activities to be conducted pursuant to the order;
(C) A provision advising the person who failed to consent that an officer or employee of the agency that issued the order will be available to confer with respondent prior to effective date of the order; and
(D) A provision advising the person who failed to consent that a court may impose a penalty of up to $25,000 per day for unreasonable failure to comply with the order.
(v) Orders shall be served upon the person or responsible party who failed to consent prior to their effective date. Force shall not be used to compel compliance with an order.
(vi) Orders may not be issued for any criminal investigations.
(e) Permit requirements. (1) No federal, state, or local permits are required for on-site response actions conducted pursuant to CERCLA sections 104, 106, 120, 121, or 122. The term on-site means the areal extent of contamination and all suitable areas in very close proximity to the contamination necessary for implementation of the response action.
(2) Permits, if required, shall be obtained for all response activities conducted off-site.
(f) Health assessments. Health assessments shall be performed by ATSDR at facilities on or proposed to be listed on the NPL and may be performed at other releases or facilities in response to petitions made to ATSDR. Where available, these health assessments may be used by the lead agency to assist in determining whether response actions should be taken and/or to identify the need for additional studies to assist in the assessment of potential human health effects associated with releases or potential releases of hazardous substances.
(g) Identification of applicable or relevant and appropriate requirements. (1) The lead and support agencies shall identify requirements applicable to the release or remedial action contemplated based upon an objective determination of whether the requirement specifically addresses a hazardous substance, pollutant, contaminant, remedial action, location, or other circumstance found at a CERCLA site.
(2) If, based upon paragraph (g)(1) of this section, it is determined that a requirement is not applicable to a specific release, the requirement may still be relevant and appropriate to the circumstances of the release. In evaluating relevance and appropriateness, the factors in paragraphs (g)(2)(i) through (viii) of this section shall be examined, where pertinent, to determine whether a requirement addresses problems or situations sufficiently similar to the circumstances of the release or remedial action contemplated, and whether the requirement is well-suited to the site, and therefore is both relevant and appropriate. The pertinence of each of the following factors will depend, in part, on whether a requirement addresses a chemical, location, or action. The following comparisons shall be made, where pertinent, to determine relevance and appropriateness:
(i) The purpose of the requirement and the purpose of the CERCLA action;
(ii) The medium regulated or affected by the requirement and the medium contaminated or affected at the CERCLA site;
(iii) The substances regulated by the requirement and the substances found at the CERCLA site;
(iv) The actions or activities regulated by the requirement and the remedial action contemplated at the CERCLA site;
(v) Any variances, waivers, or exemptions of the requirement and their availability for the circumstances at the CERCLA site;
(vi) The type of place regulated and the type of place affected by the release or CERCLA action;
(vii) The type and size of structure or facility regulated and the type and size of structure or facility affected by the release or contemplated by the CERCLA action;
(viii) Any consideration of use or potential use of affected resources in the requirement and the use or potential use of the affected resource at the CERCLA site.
(3) In addition to applicable or relevant and appropriate requirements, the lead and support agencies may, as appropriate, identify other advisories, criteria, or guidance to be considered for a particular release. The “to be considered” (TBC) category consists of advisories, criteria, or guidance that were developed by EPA, other federal agencies, or states that may be useful in developing CERCLA remedies.
(4) Only those state standards that are promulgated, are identified by the state in a timely manner, and are more stringent than federal requirements may be applicable or relevant and appropriate. For purposes of identification and notification of promulgated state standards, the term promulgated means that the standards are of general applicability and are legally enforceable.
(5) The lead agency and support agency shall identify their specific requirements that are applicable or relevant and appropriate for a particular site. These agencies shall notify each other, in a timely manner as described in §300.515(d), of the requirements they have determined to be applicable or relevant and appropriate. When identifying a requirement as an ARAR, the lead agency and support agency shall include a citation to the statute or regulation from which the requirement is derived.
(6) Notification of ARARs shall be according to procedures and timeframes specified in §300.515 (d)(2) and (h)(2).
(h) Oversight. The lead agency may provide oversight for actions taken by potentially responsible parties to ensure that a response is conducted consistent with this part. The lead agency may also monitor the actions of third parties preauthorized under subpart H of this part. EPA will provide oversight when the response is pursuant to an EPA order or federal consent decree.
(i) Other. (1) This subpart does not establish any preconditions to enforcement action by either the federal or state governments to compel response actions by potentially responsible parties.
(2) While much of this subpart is oriented toward federally funded response actions, this subpart may be used as guidance concerning methods and criteria for response actions by other parties under other funding mechanisms. Except as provided in subpart H of this part, nothing in this part is intended to limit the rights of any person to seek recovery of response costs from responsible parties pursuant to CERCLA section 107.
(3) Activities by the federal and state governments in implementing this subpart are discretionary governmental functions. This subpart does not create in any private party a right to federal response or enforcement action. This subpart does not create any duty of the federal government to take any response action at any particular time.
[55 FR 8839, Mar. 8, 1990, as amended at 59 FR 47447, Sept. 15, 1994]
Scientists have developed an environmentally friendly method to clean highly toxic water and convert it into drinkable water.
Cape Town - South African scientists have developed an environmentally friendly method to clean highly toxic water and convert it into drinkable water. Once available commercially, the method could drastically reduce the negative impact industry has on water pollution worldwide.
Called eutectic freeze crystallisation, the technique freezes acidic water – or brine – to produce potable or drinking water as well as useful salts, such as sodium and calcium sulphate.
Alison Lewis, professor for chemical engineering at the University of Cape Town in South Africa, who has led the research since 2007, claims 99.9 percent of the polluted water can be reused after applying the new technique. Unlike other water cleaning methods, it practically doesn’t produce any toxic waste.
“It’s an environmentally friendly and cost-effective technology that can be used pretty much in all industrial sectors that pollute water and thus produce brine,” explains Lewis. This includes sectors like mining, the oil and gas industry, chemical industry, paper processing or sewerage.
The simultaneous separation and purification method is based on bringing the contaminated water temperature down to reach its eutectic point – the lowest possible temperature of solidification. At this point, toxins crystallise to form salts and sink to the ground, while the clean water turns into ice, floating on the surface.
“By its nature, ice is the purest form of water because it repels any impurities. It’s actually very simple,” explains Lewis. “The method is ecologically significant because it can turn toxic waste into a useful product.”
Industrial firms in South Africa, but also in Germany, the Netherlands, Canada and Australia have already expressed interest in the new approach, she says.
The water purification method has also received support from the South African Water Research Commission. “Eutectic freeze crystallisation is a brilliant water recycling method that is superior to all existing methods for cleaning toxic water,” confirms the commission’s research manager Dr. Jo Burgess.
Up until now, industrially polluted water is purified using two methods: the brine is either stored in huge evaporation ponds, which bring the danger of ground water pollution, or through an evaporation- based crystallisation method, that uses huge amounts of electricity. Eutectic freeze crystallisation, however, uses six times less electricity than the conventional evaporation method, says Lewis.
“In addition, both existing methods leave toxic waste products behind and are therefore not ecologically sustainable,” notes Burgess. Conventional methods produce poisonous solids, the accumulation of all toxins in the brine, that then need to be disposed of correctly.
Eutectic freeze crystallisation, in contrast, produces 99 percent usable products – clean water and pure salts. “It is therefore completely environmentally friendly,” says Lewis. She points out that companies can make additional revenue from selling those salts, hoping this will be an additional incentive to use the new method.
Recycling scare water resources also makes economic sense. A report of the Green Economy Initiative (GEI) of the United Nations Environment Programme (UNEP) – which assists governments in shaping policies, investments and spending towards a range of green sectors, including clean technologies, industry, renewable energies and water services – shows that every dollar invested in safe water, creates health, social and ecological “revenue” worth three to 34 dollars.
“Investing in clean water will pay multiple dividends,” promises UNEP executive director Achim Steiner. “Meeting the wastewater challenge is not a luxury but a prudent, practical and transformative act, able to boost public health, secure the sustainability of natural resources and trigger employment in better, more intelligent water management.”
In South Africa, eutectic freeze crystallisation could be used in the mining sector, which has for decades produced more brine than companies can recycle. Mining is the most important sector of the economy of the country, which is rich in gold, platinum, diamonds and coal. For years, the polluted water has been stored all across the country in huge evaporation ponds.
“The problem is that we produce much more brine than we can evaporate. And even if we succeeded to evaporate it all, non-recycable waste materials would remain. Evaporation ponds are therefore not a sustainable, ecological solution,” warns Burgess.
Eutectic freeze crystallisation could save the South African government huge sums of money. The department of environmental affairs recently announced it needs at least 30 million dollars to drain brine from only the biggest mining areas around country’s main city Johannesburg.
Acid mine water is standing in the canals of Gauteng, the province in which Johannesburg is located, only 500 metres below the surface and its disposal should be made top priority, warned environment minister Edna Molewa.
Unfortunately, it might take another four to six years until the eutectic freeze crystallisation method will be available for use by private industry. Lewis’ research team plans to build a pilot site later this year. The 1.3 million dollar project is supposed to become operational within the next two to three years and will be able to purify one cubic meter of brine per hour. After the pilot stage, it will take another two to three years to develop the technology for industry use. - IPSnews.net
Other Proof.
A party may prove an official record — or an entry or lack of an entry in it — by any other method authorized by law.
8 See John Hutchens; T. W. Arman; et al v. United States District Court for the Eastern District of California (Sacramento), Respondent United States Environmental Protection Agency; Real Party in Interest, Appeal No. 90-71150; John F. Hutchens v. United States District Court for the Eastern District of California (Sacramento), Respondent, United States of America; et al; Real Parties in Interest, Appeal No. 90-70047.
Updated Principles and Guidelines for Water and Land Related Resources Implementation Studies
The Principles and Guidelines for Water and Land Related Resources Implementation Studies (P&G) are the rules that govern how Federal agencies evaluate proposed water resource development projects.
Federal water planning has been guided by a process that has remained largely unchanged for over twenty-five years. The first set of "Principles and Standards" was issued in September 1973 to guide the preparation of river basin plans and to evaluate federal water projects. Following a few attempts to revise those initial standards, the current principles and guidelines went into effect in March 1983.
In the Water Resources Development Act of 2007, Congress instructed the Secretary of the Army to develop a new Principles and Guidelines for the U.S. Army Corps of Engineers (section 2031). In an effort to modernize the approach to water resources development, the Obama Administration is expanding the scope of the Principals and Guidelines to cover all Federal Agencies that undertake water resource projects, not just the four agencies (i.e., U.S. Army Corps of Engineers, Bureau of Reclamation, Natural Resources Conservation Service and the Tennessee Valley Authority) which are subject to the current Principles and Guidelines.
Last year, we completed a draft report aimed at modernizing the nearly 30-year-old rules that guide Federal investments. This report focused on updating the Principles & Standards, an important first step to modernizing the P&G.
The draft report emphasized that water resources projects should maximize sustainable economic development, avoid unwise use of floodplains, and protect and restore natural ecosystems, among other important points.
In December 2009, we released our draft to the National Academy of Sciences (NAS) and to the Federal Register for public comment for review and public comment. The report resulting from the NAS review was released on December 2, 2010. A copy of this report can be found on the NAS website.
The 2009 proposal constitutes a draft of the Principles & Standards (P&S), the first Chapter of the Principles and Guidelines, which establishes the National water resources planning policy and framework for the planning process. The draft P&S, consistent with the Water Resources Development Act (WRDA) of 2007, emphasized that water resources projects should maximize sustainable economic development, avoid the unwise use of floodplains, and protect and restore natural ecosystems as well as other important changes in an effort to modernize the planning process.
The revised Principles and Standards include a number of important changes that modernize the current approach to water resources development in this country, which include:
Achieving Co-Equal Goals: The Administration's proposal reiterates that federal water resources planning and development should both protect and restore the environment and improve the economic well-being of the nation for present and future generations. While the 1983 standards emphasized economic development alone, the new approach calls for development of water resources projects based on sound science that maximize net national economic, environmental, and social benefits.
Considering Monetary and Non-Monetary Benefits: The revised Principles and Standards shift away from the earlier approach to project selection. Specifically, this revised version will consider both monetary and non-monetary benefits to justify and select a project that has the greatest net benefits – regardless of whether those benefits are monetary or non-monetary. For example, the monetary benefits might capture reduced damages measured in dollars while the non-monetary benefits might capture increased fish and wildlife benefits, or biodiversity.
Avoiding the Unwise Use of Floodplains: The new Principles and Standards represent significant progress in the way we manage our floodplain resources. The decision to modify water resources and floodplains will be based on evaluations of the services gained and lost by such an action. Only those actions that provide a net benefit will be further pursued or recommended for construction. For the first time such evaluations must give full and equal consideration to nonstructural approaches that can solve the flooding problem without adversely impacting floodplain functions.
Increasing Transparency and "Good Government" Results: The revised Principles and Standards are intended to promote the transparency of the planning and implementation process for water resource development projects in this country. The proposed changes were made to deliver "good government" results for the American people. It is expected that the use of best science, peer review, and full transparency will ensure that projects undergo a more rigorous study process, which should inform authorization and funding decisions.
Moving forward the interagency work will focus on the development of the "Guidelines" which lay out the detailed methodology for conducting implementation studies under this new Principles and Guidelines. The interagency process to develop the Guidelines began earlier this year and will likely take more than a year to complete.
Each agency will develop its own "Procedures" to outline how the new Principles and Guidelines apply to their agency-specific missions. These Procedures will be developed soon after the Guidelines are completed.
College of the Hummingbird - Center for Health, and the Institute for Liberty & Independence, (CHILI) Our Mission The College of the Hummingbird - Center for Health, and Institute for Liberty & Independence, (CHILI) works side-by-side with the nation's top emergency responders in the public and private sector to develop plans, policies, and strategies that ensure the safety of citizens in the event of natural or man-made catastrophes, (we'll bring the chili) and assure the defence and protection of the consitution. To fulfill that mission, CHILI focuses on general emergency preparedness planning, continuity of operations planning and training, preparation of special needs populations during emergencies, mass evacuation and sheltering planning, emergency communication systems, hospital coordination, table top and field emergency response exercises, the provision of adequate energy supplies during emergencies, and therefore is in need of grant writing assistance for governmental institutions seeking to provide funding for emergency planning efforts and similar needs. Iron Mountain Mine Re-Working Group Open Government & Communities Engagement Initiative Action Plan, June 2010
In December 2009, EPA’s Office of Solid Waste and Emergency Response (OSWER) circulated for public comment a draft Proposed Action Plan for its Community Engagement Initiative. EPA received and incorporated public comments on the draft Plan and also developed the OSWER Community Engagement Initiative Iplementation Plan. The Implementation Plan lays out specific actions and activities that EPA will undertake to achieve the goals and objectives of this Action Plan.
The Community Engagement Initiative will enhance EPA’s Office of Solid Waste and Emergency Response and regional office engagment with local communities and other stakeholders (e.g., state and local governments, tribes, academia, private industry, other federal agencies, non profit organizations) to help them meaningfully participate in government decisions on land cleanup, emergency preparedness and response, and the management of hazardous substances and waste.
This effort provides an opportunity for OSWER to refocus and renew its vision for community engagement, build on public involvement practices, and apply them consistently in EPA processes. Specifically, the Community Engagement Initiative focuses on taking active measures to reach out to communities and stakeholders, identifying steps EPA will take to engage these communities and stakeholders in the policy development and implementation procsses, and evaluating the effectiveness of changes in processes and procedures.
Basis for Action
The cleanup of contaminated land and pollution and the management of hazardous substances and waste by EPA directly affect communities long after the work is finished. For example, the cleanup of a hazardous waste site involves critical decisions that affect the surrounding communities: What are the potential exposures to the contamination and what are the risks? Who is responsible for the contamination and what government programs are available to oversee the cleanup? Will the cleanup affect adjacent properties? What measures will protect the health and safety of the community during and after the cleanup? Will the cleanup allow for future uses of the site that are consistent with current community goals and plans? What agreements are being made with responsible parties or developers that may affect the community? Who will be responsible for overseeing and maintaining the protectiveness of the remedy (including any institutional controls), and if it is the local community, will they be able and are they willing to meet the responsibilities? Will financial and technical assistance be provided?
Iron Mountain Mine Re-Working Group Community Engagement Initiative –Action Plan
In addition to site specific actions, EPA may also affect communities through its national regulations and policies that affect the management of underground storag tanks, solid waste and hazardous substances, as well as their associated transportation routes and storage facilities. Individual properties, development and land use plans, business operations, local economies, or other vital interests of a community may be affected by EPA regulations and policies.
Guiding Principles
The purpose of this Action Plan is to present guiding principles, goals, and actions to enhance OSWER’s relationships with communities as we carry out our mission to protect human health and the envionment.
Proactively Include Communities in Decision Making Processes: The people who are most affected by EPA decisions should have influence over the outcome. Effective community engagement is about a process of interactions that builds relationships over time and recognizes and emphaizes the community’s role in identifying concerns and participating in formulating solutions. It establishes a framework for collaboration and deliberation. In the broadest sense, community engagement in environmental decision making is the inclusion of the community in the process of defining the problem and developing solutions and alternatives. The level of engagement varies by site and issue. Most models of public involvement in environmental policy making allow for a range of citizen participation and interaction. The level of participation is influenced by access to information, the skills and resources of the community members, degree and frequency of communication, and the nature of the action. The size and makeup of an affected community is often relative to the size and scope of the problem being addressed by the EPAaction – ranging from a few residents living near a remote leaking underground storage tank, to large populations in towns and cities that could potentially be affected by a new regulation. EPA should manage its resources in smart and effective ways to ensure community engagement
Make Decision Making Processes Transparent, Accessible and Understandable, and Include a Diversity of Stakeholders: A transparent, interactive relationship with all stakeholders, especially community stakeholders, must be a fundamental principle of EPA’s cleanup, emergency preparedness and response, and hazardous substances and waste management programs. Transparency and access is essential to meaningful, deliberate and fair stakeholder participation in EPA decision making processes. Community stakeholders should have the opportunity to be engaged early and frequently in decision making processes and have easy access to understandable information that allows them to participate meaningfully. When the decision making process is transparent, includes a diversity of stakeholders, and prepares stakeholders to meaningfully participate, EPA is obligated to 1) substantially consider all stakeholder concerns, and 2) make timely decisions on public health protectiveness and community benefits. OSWER will refocus its efforts to improve its processes to be transparent and accessible, and present environmental information in a variety of forms and through multiple venues so that a diverse community of stakeholders can participate in an informed way, including disadvantaged and at‐risk populations.
Explain Government Roles and Responsibilities: There are usually numerous governmental agencies involved in decision making processes. However, many community members see the various agencies as one entity. For this reason, successful community engagement must be coupled with solid and thoughtful interagency collaboration. OSWER programs should explain exactly what EPA can and cannot do and the roles and responsibilities of other governmental agenies. It is important for community members to understand what role EPA can play and what EPA cannot deliver. Ensure Consistent Participation by Responsible Parties: Given the role of regulated entities and responsible parties in conducting cleanups, EPA must ensure that responsible parties engage community stakeholders in accordance with these principles. Responsible parties conduct and/or fund the great majority of response activities and often work in consultation with EPA personnel on community outreach activties or provide funding to communities to get technical assistance. This is consistent with EPA’s commitment to first require responsible parties to provide funding and conduct site cleanup actiities before using public resources. EPA will continue this practice of overseeing responsible party implementation of community engagement activities.
Goals of this Action Plan EPA invites you to provide input to this Action Plan. This Action Plan is intended to be a working document, and specific actions will be developed and refined with ongoing feedback and input from communities and other stakeholders, local governments, tribes, states, and EPA program offices. When reviewing the proposed actions, please consider the following questions: Are there certain best practices that should be scaled up? Are there specific components of guidance and policy that we should evaluate? Among these actions, which are the highest priority? Are there additional areas on which we should focus? What are the best mechanisms to effectively communicate progress?
This initiative involves EPA programs dealing with brownfields, federal facilities, leaking underground storage tanks, the Resource Conservation and Recovery Act (RCRA), enforcement, the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA –Superfund), the Emergency Planning and Community Right to Know Act (EPCRA), and the Clean Air Act Risk Management Program. Many of EPA’s programs are delegated to states and tribes. For those programs, EPA will continue to work closely with states, tribes, and local governments to achieve our shared goals for meaningful and effective community engagement. The results of the Community Engagement Initiative will be evaluated on a regular basis and considered in annual planning procss. The success of the Community Engagement Initiative is strongly dependent on partnerships and effective communication with the ublic and among government agencies. Iron Mountain Mine Re-Working Group Community Engagement Initiative –Action Plan
OSWER will lead this initiative in coordination with the EPA regions, the Office of Enforcement and Compliance Assurance (OECA), OECA’s Office of Environmental Justice, and other EPA offices to achieve the following goals:
Goals
I. Develop transparent and accessible decision‐making processes to Enhance meaningful community stakeholder participation
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Engage stakeholders in the decision making process before it is started
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To the extent practicable, provide early and frequent opportunities for stakeholders to participate II. Present information and provide technical assistance in ways that will enable community stakeholders to better understand envirnmental issues and participate in an informed way during the decision making process
III. Produce outcomes that are responsive to stakeholder concerns and are aligned with community needs and long term goals to the extent practicable
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Enhance EPA’s culture of valuing community perspectives
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Evaluate and measure the effectiveness of community engagement activities
Objectives and Actions The following objectives listed under each goal1 will be informed and advanced through specific actions conducted by EPA region and OSWER programs in Fiscal Years 2010 and 2011. The actions will lead to improved processes and tools for EPA to work with communities to design specific community engagemen activities and plans. The level of community engagement for any particular site or issue may vary based on the nature of the problem, the make up and needs of the community, and the anticipated scope of site or project work.
Implementation plans and schedules are in development and will identify specific actions and the roles of OSWER programs, regions and other involved EPA offices 1 Goals are mutually supportive, and some objectives overlap among goals. But for clarity, each objective is listed once, under one goal.
2 For example, for Goal 2, Objective 3 – Technical Assistance, OSWER programs will closely review Technical Assistance Grant (TAG) regulations / guidance and other technical assistance processes to determine opportunities to improve them and award technical assistance support to broad and diverse stakeholder groups. And for Objective 5 – Delivery of Information, Regions may look for specific opportunities to pilot new processes and technologies to provide information to at-risk communities near hazardous waste sites. Iron Mountain Mine Re-Working Group Community Engagement Initiative –Action Plan
GOAL 1 DEVELOP TRANSPARENT AND ACCESSIBLE DECISION MAKING PROCESSES TO ENHANCE MEANINGFUL COMMUNITY STAKEHOLDER PARTICIPATION
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ENGAGE WITH STAKEHOLDERS TO INVOLVE THEM IN DECISION MAKING PROCESSES BEFORE THE PROCESS IS STARTED
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TO THE EXTENT PRACTICABLE, PROVIDE EARLY AND FREQUENT OPPORTUNITIES FOR STAKEHOLDERS TO MEANINGFULLY PARTICIPATE IN DECISION MAKING PROCESSES
Before starting the decision making process, EPA should make sure the various segments of affected communities are engaged and have an opportunity to be represented in theprocess, especially disadvantaged and at risk populations and work with community stakeholders to:
Conduct a community stakeholder analysis
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Define the decision making process and determine decision points and schedule
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Determine forums and opportunities for stakeholder participation
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Determine what information will be made available for review and when
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Explain legal and resource issues
OSWER and regions will conduct activities to inform and improve:
Objective 1: Decision making Processes: Identify and revise critical decision making processes, guidance, and rulemaking procedures to support more enhanced, transparent, and upfront collaboration with community stakeholders
Objective 2: Enforcement Processes: Identify and evaluate how enforcement processes can advance the goals of community engagement
GOAL 2 PRESENT INFORMATION AND PROVIDE TECHNICAL ASSISTANCE IN WAYS THAT WILL ENABLE COMMUNITY STAKEHOLDERS TO BETTER UNDERSTAD ENVIRONMENTAL ISSUES AND PARTICIPATE IN AN INFORMED WAY DURING THE DECISION MAKING PROCESS
EPA should present complex scientific and technical information so that all members of the community, including at risk and non English speaking populations, can participate in an informed way. EPA should also help communities to easily access electronic information systems. OSWER and regions will conduct activities to inform, improve and develop:
Objective 3: Technical Assistance: Evaluate existing technical assistance processes and pursue specific actions to 1) improve and broaden the availability of technical assistance to communities and 2) enable broad and diverse community representation in decision making processes
Objective 4: Risk Communication: Evaluate and improve risk communication practices and provide cross program training so that hazard information is presented accurately and in ways that are clearly understandable to various commnity stakeholders
Objective 5: Delivery of Information: Evaluate how information is delivered to at‐risk and remote communities and develop options for improvement – to enhance communities’ ability to be informed and meaningfully participate in decision making processes. Issues include: electronic access/digital divide; simplified information; location of information; timely release of information
GOAL 3 PRODUCE OUTCOMES THAT ARE RESPONSIVE TO STAKEHOLDER CONCERNS AND ARE ALIGNED WITH COMMUNITY NEEDS AND LONG TERM GOALS TO THE EXTENT PRACTICABLE
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ENHANCE EPA’S CULTURE OF VALUING COMMUNITY PERSPECTIVES
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EVALUATE AND MEASURE THE EFFECTIVENESS OF COMMUNITY ENGAGEMENT ACTIVITIES
EPA programs have a long history of working with communities to achieve successful results. OSWER should build upon good examples of community engagement practices and ensure that key principles are applied effectively and consistently to all critical EPA processes. OSWER should regularly evaluate and, when appropriate, revise its measures and goals for meaningful community engagement. OSWER and regions will conduct activities to inform, improve and develop:
Objective 6: Community Engagement Training: Develop and provide a training program to: 1) strengthen fundamental community engagement skills of key personnel to enable effective community engagement practices and strtegies for projects and sites, and 2) enhance “One site, One team” project management approaches to enable all team members to understand project and community facts, communicate a consistent message to the public and ensure that decisions are based on the results of community consultation Objective 7: Measures: Evaluate and measure the effectiveness of community engagement activities to promote continual improvement and identify needs nd opportunities for future action
Objective 8: Local Workforce Development: Evaluate and promote job training and the use of local labor on environmental projects. This agreement will support collaborative efforts to improve air quality, safe drinking water, management of toxic substances, environmental governance, and water resource management across Iron Mountain Mine, during the time period 2010-2015. The goal of the cooperation is to reinforce owner's rights, miner's rights, resident's rights, other civil rights, and which are now strengthening their environmental laws, ministries, and compliance mechanisms. Cooperation could include technical assistance, training, and joint project development. http://www.usace.army.mil/CECW/Pages
Steps to Modernize and Reinvigorate NEPA
On February 18, 2010, the White House Council on Environmental Quality (CEQ) proposed four steps to modernize and reinvigorate the National Environmental Policy Act (NEPA), in conjunction with its 40th Anniversary. ( Watch a video of the symposium celebrating the 40th anniversary. ) These measures will assist Federal agencies to meet the goals of NEPA, enhance the quality of public involvement in governmental decisions relating to the environment, increase transparency and ease implementation. On March 17, 2011, CEQ also announced a NEPA pilot program to identify and promote more efficient and effective approaches to NEPA.
Enacted in 1970, NEPA is a cornerstone of our Nation's efforts to protect the environment and a fundamental tool to harmonize our economic and environmental aspirations. It recognizes that many Federal activities affect the environment and mandates that Federal agencies consider the environmental impacts of their proposed actions before acting. NEPA emphasizes public involvement in government actions affecting the environment by requiring that the benefits and the risks associated with proposed actions be assessed and publicly disclosed.
To modernize NEPA, CEQ issued draft guidance for public comment on: when and how Federal agencies must consider greenhouse gas emissions and climate change in their proposed actions; clarifying appropriateness of “Findings of No Significant Impact” and specifying when there is a need to monitor environmental mitigation commitments; clarifying use of categorical exclusions; and enhanced public tools for reporting on NEPA activities.
Guidance Clarifying Appropriateness of “Findings of No Significant Impact” and Specifying When There is a Need to Monitor Environmental Mitigation Commitments
Many Federal actions receive an environmental review, known as an Environmental Assessment. In those instances, NEPA compliance is usually completed with a "Finding of No Significant Impact" (FONSI) on the environment, thus a more detailed Environmental Impact Statement is not required. The guidance clarifies that the environmental impacts of a proposed action may be mitigated to the point when the agency may make a FONSI determination. When the FONSI depends on successful mitigation, however, such mitigation requirements should be made public and be accompanied by monitoring and reporting.
The guidance emphasizes that when agencies base their environmental analysis on a commitment to mitigate the environmental impacts of a proposed action, they should adhere to those commitments, monitor how they are implemented, and monitor the effectiveness of the mitigation.
Specifically, the guidance affirms that agencies should:
commit to mitigation in decision documents when they have based environmental analysis upon such mitigation (by including appropriate conditions on grants, permits, or other agency approvals, and making funding or approvals for implementing the proposed action contingent on implementation of the mitigation commitments);
monitor the implementation and effectiveness of mitigation commitments;
make information on mitigation monitoring available to the public, preferably through agency web sites; and
remedy ineffective mitigation when the Federal action is not yet complete.
The guidance recommends best practices for appropriate use of categorical exclusions and was developed as part of CEQ's effort to modernize and reinvigorate Federal agency implementation of NEPA. It was designed to ensure that agencies establish and use categorical exclusions appropriately and transparently. It also calls on agencies to review their existing categorical exclusions periodically to avoid the use of outdated NEPA procedures.
CEQ's guidance clarifies requirements of NEPA, and the CEQ regulations implementing NEPA, regarding categorical exclusions. Specifically, it suggests that Agencies should:
utilize information technology to inform the public about new or revised categorical exclusions and their justifications;
remain alert to new conditions and information that would cause an agency to reconsider a categorical exclusion;
consider further public documentation and disclosure in applying established categorical exclusions, particularly where they may implicate extraordinary circumstances; and
in general, review their existing categorical exclusions at least every seven years to avoid the use of outdated NEPA procedures.
Draft Guidance on the Consideration of Greenhouse Gases
CEQ is releasing draft guidance for public comment on when and how Federal agencies must consider greenhouse gas emissions and climate change in their proposed actions. CEQ has been asked to provide guidance on this subject informally by Federal agencies and formally by a petition under the Administrative Procedure Act. The draft guidance explains how Federal agencies should analyze the environmental impacts of greenhouse gas emissions and climate change when they describe the environmental impacts of a proposed action under NEPA. It provides practical tools for agency reporting, including a presumptive threshold of 25,000 metric tons of carbon dioxide equivalent emissions from the proposed action to trigger a quantitative analysis, and instructs agencies how to assess the effects of climate change on the proposed action and their design. The draft guidance does not apply to land and resource management actions and does not propose to regulate greenhouse gases. CEQ received public comment on this guidance for 90 days.
Enhanced Public Tools for Reporting on NEPA Activities
Technology has greatly enhanced the government's transparency and accountability and these tools have improved the quality of governmental decision-making, including decisions made following a NEPA analysis. CEQ has updated its public webpage, www.nepa.gov , and is providing a wide range of information about NEPA through this portal. CEQ continues to upgrade this site to include the status of reviews of agency NEPA guidance, Recovery Act NEPA reporting, and real-time NEPA review status. These upgrades are designed to improve public participation and the quality of Federal agency administration of NEPA.
NEPA Pilot Project
CEQ issued a solicitation to members of the public and Federal agencies inviting them to nominate projects that demonstrate a more efficient approach to NEPA implementation and accomplish the goals of improved transparency and informed decision making.
CEQ will select up to five (5) nominated proposals for further study and implementation as part of CEQ's NEPA Pilot Program. In collaboration with the relevant agencies, CEQ will track the implementation of the five selected pilot projects, evaluate their outcomes, and highlight and promote lessons learned.
CEQ will select up to five (5) nominated proposals for further study and implementation as part of CEQ's NEPA Pilot Program. In collaboration with the relevant agencies, CEQ will track the implementation of the five selected pilot projects, evaluate their outcomes, and highlight and promote lessons learned.
CEQ sought nominations of projects that propose improvements to any aspect of the NEPA process that can be replicated to increase efficiency of this process across government, including:
Simplifying NEPA implementation practices , such as data gathering, scoping, and public review and comment. NEPA applies to a wide variety of proposed actions, many of which are proposed by state and local agencies, corporations, tribes, organizations, and private individuals. CEQ is very interested in approaches that appropriately leverage and coordinate federal, state, tribal, and local environmental review, consultation, and permitting requirements.
Reducing the time and cost involved in preparing NEPA reviews , by reducing paperwork and shortening timelines; applying NEPA early in the project development process; setting page limits; addressing incomplete or unavailable information; collaboratively developing purpose and need statements; determining the scope of the NEPA analysis; and preparing concise and focused EAs.
Utilizing information technology to improve the efficiency of NEPA implementation for a particular project, or when adopted program-wide.
Improving the effectiveness of public engagement , such as by making NEPA documents and analyses easier to read and understand, and enhancing public involvement to address environmental justice or other community concerns.
Sen. James Inhofe (R-Okla.) has proposed legislation designed to ensure pilots fairer treatment and more access to information in FAA enforcement actions, reform the appellate process, and create advisory boards to help improve the notices to airmen and medical certification processes.
Private pilot Sen. James Inhofe (R-Okla.), despite getting a bare slap on the wrist — rather than a license suspension — for landing his Cessna 340 last fall on a closed runway at a small South Texas airport and scaring the daylights out of workers doing maintenence there, has instead blasted the Federal Aviation Administration for “agency overreach.”
For site security purposes and to ensure that this service remains available to all users, EPA employs monitors and filters to identify and block unauthorized attempts to upload or change information, or otherwise cause damage to the information on our Web pages. Unauthorized attempts to upload or change information on this site are strictly prohibited and may be punishable under the Computer Fraud and Abuse Act of 1986 and the National Information Infrastructure Protection Act . Except for these authorized law enforcement investigations, no other attempts are made to identify individual users or their usage habits.
This page explains how we will handle information we learn about you from your visit to our site, and tells you that EPA monitors network traffic to ensure website security.
Your Rights under the Privacy Act : The Privacy Act of 1974 protects the personal information the federal government keeps on you in “systems of records (SOR)” (information an agency controls that can be retrieved by name or some other personal identifier). The Privacy Act regulates how the government can disclose, share, provide access to, and maintain the personal information that it collects. Not all information collected online is covered by the Privacy Act.
The Act's major provisions require agencies to:
publish a Privacy Act Notice in the Federal Register explaining the existence, character and uses of a new or revised SOR;
keep information about you accurate, relevant, timely, and complete to assure fairness in dealing with you; and
allow you to, upon request, access and review your information held in a SOR and request amendment of the information if you disagree with it.
Your viewing of EPA's website does not result in the collection of any personal information that is contained in a Privacy Act System of Records as defined by the Privacy Act. Information concerning the Privacy Act can be found at: epa.gov/privacy .
Children's Privacy : Some EPA Web pages provide content to children. It is EPA policy, in compliance with the requirements of the Children's Online Privacy Protection Act (COPPA) , to collect no information online about or from children under the age of 13 except when it is needed to identify a submission or to answer a question. Any such instances where information is collected on Web pages for children will be clearly marked. Unless required by law, none of the information will be used for another purpose or shared with third parties, nor will personally identifying information be published on the EPA website. When EPA offices identify the work product of a child under thirteen on the EPA public access website, only the first name, age, and home state of the child will be stated (e.g., Mike, age 7, Kentucky) unless the parent makes a hardcopy request to have additional information posted.
EPA and Privacy: Please be assured that the privacy of our visitors is of utmost importance to us. We collect no personally identifiable information about you when you visit our site unless you choose to provide that information to us.
We want to inform you that, for each HTTP request (which is what your Web browser generates when you request a page or part of a page from a website) received; we collect and store only the following information, in what is called a log file:
the date and time
the originating Internet Protocol (IP) address (this address can refer to a specific computer; more frequently, commercial Internet providers use a temporary IPA which does not link to a specific computer)
the type of browser and operating system used (if provided by the browser)
the URL of the referring page (if provided by the browser)
the object requested
completion status of the request
pages visited
We use the information that we automatically collect to measure the number of visitors to the different areas of our sites, and to help us make our pages more useful to visitors. This includes analyzing these logs periodically to determine the traffic through our servers, the number of pages served, and the level of demand for pages and topics of interest.
Cookies : Cookies are small files that Web servers place on a user's hard drive. They can serve several functions, depending upon how they are designed:
they allow the website to identify you as a previous visitor each time you access a site;
they track what information you view at a site (important to commercial sites trying to determine your buying preferences);
in the more advanced cases they track your movements through many websites but not the whole Web;
businesses use them for customer convenience to allow them to produce a list of items to buy and pay for them all at one time and to garner information about what individuals are buying at their sites;
advertisers use them to determine the effectiveness of their marketing and offer insights into consumer preferences and tastes by collecting data from many websites; and
they can be used to help a website tailor screens for each customer's preference.
Some EPA pages have "session cookies," to facilitate use of that particular page. These disappear when the Web user terminates a Web session and closes the browser. EPA also permits the use of persistent cookies for the collection of Web metrics; however, EPA does not collect any personally identifiable information about visitors to our Web pages. All EPA pages using persistent cookies link to the EPA Persistent Cookie Notice , which details the types of information collected and how to opt-out by changing the cookie settings in your browsers.
If you are concerned about the potential use of the information gathered from your computer by cookies, you can set your browser to prompt you before it accepts a cookie. Most Internet browsers have settings that let you identify and/or reject cookies.
Other Information Collection and Personally Identifiable Information (PII) : In addition to the information automatically collected by the server, EPA offices may collect other information from online visitors. Before collecting personally identifiable information through our Web pages, we will prominently disclose:
why EPA is collecting the information;
what information is to be collected;
the intended use of the information;
how it will be protected/secured;
who at EPA will have access to the information;
if it will be shared within or outside EPA, including on publicly available websites, and if shared, with whom;
the opportunity to consent to, or reject, the collection and/or sharing;
how long the information will be retained and when it will be destroyed; and
what other privacy risks exist and how the agency will mitigate those risks.
How the Information is Used : We may store non-personally identifiable information we collect (such as search engine queries and anonymous survey responses) indefinitely to help us better understand and meet the needs of our visitors. We may share non-personally identifiable information with others, including the public, in aggregated form (for instance, in a list of our most popular search engine queries), in partial or edited form (such as in a report summarizing responses to a questionnaire), or verbatim (for example, in a complete listing of survey responses).
How e-mail is Handled : By sending us an electronic mail message (for example, an e-mail message containing an official Freedom of Information Act request), you may be sending us personally-identifying information, such as name and address. In these cases, we may retain the information as long as necessary to respond to your request or otherwise resolve the subject matter of your e-mail. Please be aware that email is not necessarily secure from third party interception or misdirection. For your own protection you may wish to communicate sensitive information using a method other than email.
Personal Information via Forms : Some of our pages provide forms allowing visitors to submit search engine queries, questionnaires, feedback, or other information. Some of these forms may request personally identifiable information (e.g., name, address, e-mail address) for specific purposes, such as when the submitter is requesting a personal response, registering for a conference, or subscribing to a mailing list. All information submitted by visitors is voluntary.
EPA and Social Media or Third Party Sites : In addition to EPA's official website on www.epa.gov , EPA uses social media and third party sites to provide EPA content in a different format that may be useful or interesting to you. When we use these sites, the information we provide is consistent with the intended purpose of the EPA website. EPA does not collect personally identifiable information (PII) about you when you visit these third party sites unless you choose to provide that information. Please be aware that the privacy protection provided on social media and third party sites that are not a part of the epa.gov domain may not be the same as the privacy protection described here. For more information about EPA and social media, pleaser refer to http://www.epa.gov/epahome/socialmedia.html .
For site security purposes and to ensure that this service remains available to all users, EPA employs monitors and filters to identify and block unauthorized attempts to upload or change information, or otherwise cause damage to the information on our Web pages. Unauthorized attempts to upload or change information on this site are strictly prohibited and may be punishable under the Computer Fraud and Abuse Act of 1986 and the National Information Infrastructure Protection Act. Except for these authorized law enforcement investigations, no other attempts are made to identify individual users or their usage habits.
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[tribal_training_cwa] EPA Releases New Online Training Module on Water Quality Standards
EPA Releases New Online Training Module on Water Quality Standards
A new online training module intended to encourage and facilitate public involvement in the U.S. Environmental Protection Agency's (EPA) Water Quality Standards program is now available on EPA's website. "How to Develop and Implement Public Involvement Programs and Practices" outlines the requirements of public involvement and highlights good practices for creating an effective public participation process in decisions that affect water quality. Links to EPA policy, resources and tools are provided throughout the module and compiled at the end of the presentation for further development of a tailored public involvement process. To experience the new module go to: http://www.epa.gov/waterscience/standards/academy/special/public/player.html
Information for Small Businesses
The gateway to environmental information and contacts for small businesses.
APTI provides technical air pollution training to state, tribal, and local air pollution professionals, although others may benefit from this training. The curriculum is available in classroom, telecourse, self-instruction, and web-based formats.
Understand and comply with environmental laws and regulations - Learn about industry and government sector-based activities, tools and technical assistance designed to help you understand and meet your obligations under environmental laws and regulations
The Retail Industry Portal provides access to the many regulatory compliance and environmental sustainability resources available to help prevent and resolve environmental issues at retail establishments.
Environmental stewardship - From the way they manage their operations to the products and services they offer customers to the projects and activities they support in their communities, businesses and other institutions can play an important role in protecting the environment and preserving natural resources. Search this database for environmental stewardship opportunities for your business.
Chemical or petroleum storage: Properly designed or modified storage facilities enhance worker safety, reduce cleanup costs, and minimize risks from spills.
In case of spills: Industries and businesses that have or encounter spills or discharges in the aftermath should contact the National Response Center immediately. You or your organization may have legal requirements for reporting spills or for taking action, depending on the spill. National Response Center 800-424-8802.
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Information from Specific EPA Programs
Agriculture - View information about environmental stewardship on farms and ranches, and about reducing pollution and making good use of the latest pollution prevention technologies.
Energy Star for Business - The buildings where we work, shop, play and learn account for nearly half the nation's energy use. Explore the E NERGY S TAR site and find tools and resources to help businesses and organizations save energy and reduce their carbon footprint.
Climate Change: Businesses - View examples of the contributions businesses have made towards reducing U.S. emissions, and how to educate their industry, consumers, and employees about global warming. Businesses, including small businesses, can also "lead by example." Many small businesses across the economy are measuring their greenhouse gas emissions, or carbon footprint, setting goals, and reducing emissions. Whether your company is looking to lower its energy bills, improve fuel efficiency in its fleets, or become a more competitive supplier by having a credible sustainability program, you can take action that will save your company money, improve productivity, and reduce greenhouse gas emissions. Learn more about how small businesses can become Climate Leaders .
Become water-efficient and test your WaterSense - Incorporating water-efficiency programs is an effective way for businesses to reduce operating costs by saving on electric power, gas, chemical, and wastewater disposal expenses. By employing water-efficient practices, you can convey an image of stewardship to employees, customers, and the general public because you are helping to conserve water resources for future generations.
Toxics Release Inventory (TRI) Program - TRI is a publicly-available EPA database that contains information on toxic chemical releases and waste management activities reported annually by certain industries as well as federal facilities.
Partnerships for Safer Chemistry: Design for the Environment (DfE) - The DfE program uses chemical assessment tools and expertise to create safer and more efficient chemical materials, processes and technologies. DfE focuses on industries that combine the potential for chemical risk reduction and improvements in energy efficiency with a strong motivation to make lasting, positive changes.
Recycling Market Development - From small startup efforts to large scale operations, recycling companies are on the forefront of technical innovation and materials recovery. Find information about a variety of resources to assist in the startup and expansion of recycling businesses.
Developing Risk Management Plans - The Clean Air Act requires facilities that produce, handle, process, distribute, or store certain chemicals to develop a risk management program, prepare a Risk Management Plan (RMP), and submit the RMP to EPA. Learn how to prepare and submit an RMP, and how to access and review RMP information.
Superfund - Information for businesses: legislation and regulations, compliance and enforcement, databases and software, contracts and more.
Technical assistance programs (TAPs) for reducing and eliminating pollution - TAPs provide businesses with cutting edge environmental management assistance and help identify and implement measures that reduce or eliminate pollution at its source. Whether your organization is attracted by the environmental benefits, cost savings, or enhanced public image, TAPs offer a variety of services, most of which are free, nonregulatory, and confidential.
Ozone Layer Depletion - information for companies that use or manufacture ozone-depleting substances and their substitutes, including information about the CFC phaseout, ozone-related regulations and the Significant New Alternatives Policy (SNAP) program.
As you know, President Obama signed Executive Order 13514 on October 5, 2009. This Executive Order sets sustainability goals for Federal Agencies and focuses on making improvements in environmental, energy and economic performance.
The Executive Order requires Agencies to meet a number of energy, water, and waste reduction targets, including:
30% reduction in vehicle fleet petroleum use by 2020,
26% improvement in water efficiency by 2020,
50% recycling and waste diversion by 2015,
95% of all applicable contracts will meet sustainability requirements,
implementation of the 2030 net-zero-energy building requirement,
implementation of the stormwater provisions of the Energy Independence and Security Act of 2007, section 438, and,
development of guidance for sustainable Federal building locations in alignment with the Livability Principles put forward by the Department of Housing and Urban Development, the Department of Transportation, and the Environmental Protection Agency.
Meeting these goals will reduce costs, reduce air and water pollution, and drive investments in local, clean energy jobs. The goals and strategies Federal Agencies are developing will be in harmony with existing statutory energy efficiency requirements such as those in the Energy Policy Act of 2005 and in the Energy Independence and Security Act of 2007. In fact, statutory requirements such as metering and building recommissioning will help us meet these goals.
In addition, the Executive Order requires Federal Agencies, for the first time, to set a greenhouse gas pollution reduction target. The overall Federal government-wide target will be the aggregate commitment of 35 Federal Agencies 1 . Achieving the reduction goal will be done through a combination of efforts, including becoming more energy efficient, reducing petroleum used in government fleets, and using renewable energy. The investments made by Federal Agencies today will pay dividends for years to come in taxpayer savings. For example, if annual greenhouse gas emissions decrease incrementally to produce a reduction equal to five percent of calculated base year emissions, the Federal Government will save an estimated $1.7 - $2.1 billion in avoided utility costs over the period 2010 to 2020.
Agencies are working toward achieving their targets by pursuing a number of strategies, including installing solar arrays at military installations, tapping landfills for renewable energy, retrofitting Federal buildings, and greening the Federal fleet. These projects, many of which were made possible by Recovery Act funding, will drive long-term savings, build local market capacity, and create new private-sector clean energy jobs.
We know that inefficient energy use in buildings is a major contributor to Federal greenhouse gas emissions. As such, Federal buildings provide significant opportunities for reducing emissions, and the effort is bolstered by the $5.5 billion provided in the Recovery Act to the General Services Administration to renovate and build high-performance green Federal buildings.
In fact, the General Service Administration's Edith Green Wendell Wyatt Federal building in Portland, Oregon is a good example of what can be done. The building features a series of seven 250 foot tall trellises designed to shade the entire west side of the building during summer months, while allowing light and solar gain during winter months. Once complete, this 18-story building will also include rooftop solar panels that will provide nearly 13 to 15 percent of the building's energy, elevators that generate electricity during descent, smart lighting systems which will adjust with natural light levels, thus reducing light use by 50 percent, and solar-thermal systems which will provide 30 percent of the building's hot water.
Another example of an agency working to reduce its energy use is the Food and Drug Administration. The FDA has implemented upgrades to the energy management control system at its Jefferson Laboratories Complex in Jefferson, AR that will save an estimated 2.3 percent of the average annual energy consumption on campus, resulting in nearly $93,000 in annual savings.
Another innovative approach is the Defense Department's Energy Conservation Investment Program, which competitively funds clean energy projects according to estimated return on investment. One such project will install 2,000 solar panels on buildings at the Naval Weapons Station in Seal Beach, CA. The project will produce about 5.5 percent of the total electricity used by the facility, saving the Navy more than $86,000 per year in energy costs.
Looking forward, implementation of the Executive Order will focus on integrating achievement of sustainability goals with agency mission and strategic planning. The goal is to optimize performance and minimize implementation costs.
Detailed agency implementation plans are due in June 2010, when each Federal Agency will deliver a Strategic Sustainability Performance Plan to the Council on Environmental Quality and the Office of Management and Budget. Each plan will prioritize the agency's actions toward the goals of the Executive Order based on lifecycle return on investment.
These Sustainability Plans will describe the specific actions agencies will take to achieve their individual greenhouse gas reduction targets, reduce long-term costs, and meet the other goals of the Executive Order. Finally, to ensure accountability, annual agency progress will be measured and reported online to the public by the Office of Management and Budget through the “scorecard” process.
Meeting the goals of this Executive Order will demonstrate good government as much as green government.
Thank you for the opportunity to testify today and I look forward to your questions.”
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1 Central Intelligence Agency, Department of Homeland Security, Department of Commerce, Department of Defense, Department of Energy, Department of Health and Human Services, Department of Interior, Department of Justice, Department of Labor, Department of State, Department of Transportation, Department of Education, Environmental Protection Agency, General Services Administration, Department of Housing and Urban Development, National Archives and Records Administration, National Aeronautics and Space Administration, Office of Personnel Management, Railroad Retirement Board, Social Security Administration, Department of Treasury, Tennessee Valley Authority, Nuclear Regulatory Commission , Department of Agriculture and Veterans Affairs, Federal Housing Finance Agency, Federal Trade Commission, Smithsonian, Army Corps of Engineers- Civil Works, National Science Foundation, Corporation for National and Community Service, Court Services and Offender Supervision Agency, Small Business Administration and US Postal Service.
"We really try to be good neighbors there," he said. "The problem is the general concept, perhaps." Third Circuit Clarifies Availability of Cost Recovery Claims Under Section 107 of CERCLATITLE 5 > PART III > Subpart A > CHAPTER 29 > SUBCHAPTER I > § 2902May 26, 2010 In an April 12, 2010, opinion, the U.S. Court of Appeals for the Third Circuit clarified which claims are available to different classes of potentially responsible parties (PRPs) under the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA). In Agere Systems Inc. v. Advanced Environmental Technology Corp ., No. 09-1814, 602 F.3d 204, 2010 WL 1427582 (3d Cir. Apr. 12, 2010), the court denied Section 107 cost recovery claims to PRPs who had been granted contribution protection after settling with EPA or a state, while allowing Section 107 claims by PRPs involved in private party settlements. CERCLA provides PRPs with three potential avenues to recover costs from other PRPs. Under Section 107(a), a party that has incurred costs to clean up a contaminated site may recover those costs from other PRPs. Courts have generally found Section 107 imposes joint and several liability such that the plaintiff could recover 100 percent of its costs from defendants. Defendants in turn could bring contribution claims to defray the potential impact of joint and several liability. Under Section 113(f)(1), a PRP may seek contribution from any other PRP during or following a civil action under Section 106 or 107 of CERCLA. See Cooper Industries, Inc. v. Aviall Services , Inc., 543 U.S. 157 (2004) (denying PRP a contribution action under 113(f)(1) unless it had been sued in a 106 or 107 action). Under Section 113(f)(3)(B), a PRP who has resolved CERCLA liability to a governmental unit through settlement may seek contribution from any other PRP. Courts applying Section 113 allocate response costs among liable PRPs based on their “fair share” using equitable factors. In Agere , five plaintiffs who incurred costs in the cleanup of the Boarhead Farms Superfund Site in Pennsylvania asserted claims under both Sections 107 and 113. One significant benefit that CERCLA gives to PRPs who enter into a settlement with the government is contribution protection — such PRPs are shielded from future contribution liability for the matters addressed in the settlement that might have been brought against them by other PRPs. In the Third Circuit, however, this protection now comes with a price. Shielded PRPs do not have recourse to the potentially higher joint and several recovery provided under 107(a), and must instead rely solely on recovery based on equitable (and several) contribution liability under 113(f). The court based its holding in part on the desire to balance the allocation of cleanup costs. When a plaintiff PRP brings a 107(a) action for complete recovery against a defendant PRP, the defendant generally can file a contribution counterclaim under 113(f)(1). In this way, as recognized by the Supreme Court in United States v. Atlantic Research , 551 U.S. 128 (2007), the defendant can “fend off” the joint and several claim and thereby effectively convert the action to one in contribution where each PRP, including the plaintiff, can be assigned some share of liability. In cases where a PRP has gained contribution protection, however, the Third Circuit found this strategy becomes impossible; the defendant would be barred from bringing any 113(f) contribution counterclaim in response to the 107(a) claim and thus, a shielded plaintiff could potentially recover 100 percent of its costs — including its own share — from the defendant. The Third Circuit found this to be “a perverse result, since a primary goal of CERCLA is to make polluters pay.” Thus, the court denied the 107(a) claims to the PRPs with contribution protection. While the court closed the door of 107(a) availability to one group of PRPs, it opened it to another. Although most of the plaintiffs in this case entered into two consent decrees with the government, Agere Systems Inc. and TI Group Automotive Systems LLC did not. These two did, however, voluntarily enter into private settlement agreements with the other plaintiffs, wherein all the settling parties contributed to a common fund from which the costs of remediation were paid. Section 107(a) permits recovery of costs a party “incurred” in cleaning a site. In Atlantic Research , the Supreme Court found that that this language does not encompass costs paid as a result of a court judgment or settlement agreement payment where such payments are not incurred directly in cleanup activities, but rather reimburse other parties for costs they incurred. Carpenter argued that, because Agere and TI's payments were made in connection with a settlement agreement, they did not qualify for 107(a) recovery. The Court of Appeals disagreed, holding that the Supreme Court's decision was made in a different context and noting the distinction between a settlement agreement which requires a party to reimburse others for past costs incurred and an agreement which requires the party to conduct on-going work and incur its own response costs. In addition, the ordinary meaning of the word “incurred” should include all payments made for on-going work, regardless of whether payments were made into a group trust or directly incurred in cleanup activities. The court seemed particularly concerned that Agere and TI be given adequate opportunities for contribution recovery. These parties were not eligible for 113(f)(1) contribution claims as they were never subject to a civil action under CERCLA. Nor were they eligible for 113(f)(3)(B) contribution claims as they had not “resolved” their liability to any governmental unit. To also deny them a 107(a) claim would act as a complete bar to recourse under CERCLA. This holding, the court said, also encourages PRPs to voluntarily take responsibility for cleanup costs by ensuring that, regardless of government involvement, they will have some cost recovery claim available to them. This decision attempts to resolve questions raised by the recent Supreme Court CERCLA decisions as to when Section 107 or 113 are applicable, and will likely have far-reaching impacts, not the least of which will be felt in bankruptcy proceedings. Bankruptcy Code Section 502(e)(1)(B) mandates disallowance of contingent contribution claims of entities co-liable with the debtor to a third-party creditor. Section 113(f) contribution claims against bankrupt PRPs for their share of future cleanup costs are particularly vulnerable to this provision of the Code. In denying 107(a) direct actions to PRPs who have gained contribution protection through settlements with the government, and limiting such PRPs to contribution claims, the Third Circuit has also significantly limited (if not eliminated) the ability of these PRPs to recover any future costs against a PRP debtor's estate. Courts across the country, including the Supreme Court, have long wrestled with the interplay between 107(a) and 113(f). Though not clear in the statute, it seems increasingly evident that, at least in the Third Circuit, while PRPs are not barred outright from a 107(a) claim, they may not utilize the more generous joint and several liability aspects of 107(a) if the PRP has obtained contribution protection. A question remains, however, as to whether costs incurred “outside” the settlement agreement and, thus, not subject to contribution protection, could be recovered as part of the 113 claim based on that settlement or a 107 claim. The line between 107 and 113 recoverable costs continues to be somewhat muddied as a result of the Supreme Court decisions, and the circuit courts continue to try to define these lines. § 2902. Commission; where recorded (a) Except as provided by subsections (b) and (c) of this section, the Secretary of State shall make out and record, and affix the seal of the United States to, the commission of an officer appointed by the President. The seal of the United States may not be affixed to the commission before the commission has been signed by the President. (b) The commission of an officer in the civil service or uniformed services under the control of the Secretary of Agriculture, the Secretary of Commerce, the Secretary of Defense, the Secretary of a military department, the Secretary of the Interior, the Secretary of Homeland Security, or the Secretary of the Treasury shall be made out and recorded in the department in which he is to serve under the seal of that department. The departmental seal may not be affixed to the commission before the commission has been signed by the President. (c) The commissions of judicial officers and United States attorneys and marshals, appointed by the President, by and with the advice and consent of the Senate, and other commissions which before August 8, 1888, were prepared at the Department of State on the requisition of the Attorney General, shall be made out and recorded in the Department of Justice under the seal of that department and countersigned by the Attorney General. The departmental seal may not be affixed to the commission before the commission has been signed by the President. TITLE 5 App. > FEDERAL > § 2 § 2. Findings and purpose (a) The Congress finds that there are numerous committees, boards, commissions, councils, and similar groups which have been established to advise officers and agencies in the executive branch of the Federal Government and that they are frequently a useful and beneficial means of furnishing expert advice, ideas, and diverse opinions to the Federal Government. (b) The Congress further finds and declares that— (1) the need for many existing advisory committees has not been adequately reviewed: (2) new advisory committees should be established only when they are determined to be essential and their number should be kept to the minimum necessary; (3) advisory committees should be terminated when they are no longer carrying out the purposes for which they were established; (4) standards and uniform procedures should govern the establishment, operation, administration, and duration of advisory committees; (5) the Congress and the public should be kept informed with respect to the number, purpose, membership, activities, and cost of advisory committees; and (6) the function of advisory committees should be advisory only, and that all matters under their consideration should be determined, in accordance with law, by the official, agency, or officer involved. TITLE 5 App. > FEDERAL > § 5 § 5. Responsibilities of Congressional committees; review; guidelines (a) In the exercise of its legislative review function, each standing committee of the Senate and the House of Representatives shall make a continuing review of the activities of each advisory committee under its jurisdiction to determine whether such advisory committee should be abolished or merged with any other advisory committee, whether the responsibilities of such advisory committee should be revised, and whether such advisory committee performs a necessary function not already being performed. Each such standing committee shall take appropriate action to obtain the enactment of legislation necessary to carry out the purpose of this subsection. (b) In considering legislation establishing, or authorizing the establishment of any advisory committee, each standing committee of the Senate and of the House of Representatives shall determine, and report such determination to the Senate or to the House of Representatives, as the case may be, whether the functions of the proposed advisory committee are being or could be performed by one or more agencies or by an advisory committee already in existence, or by enlarging the mandate of an existing advisory committee. Any such legislation shall— (1) contain a clearly defined purpose for the advisory committee; (2) require the membership of the advisory committee to be fairly balanced in terms of the points of view represented and the functions to be performed by the advisory committee; (3) contain appropriate provisions to assure that the advice and recommendations of the advisory committee will not be inappropriately influenced by the appointing authority or by any special interest, but will instead be the result of the advisory committee's independent judgment; (4) contain provisions dealing with authorization of appropriations, the date for submission of reports (if any), the duration of the advisory committee, and the publication of reports and other materials, to the extent that the standing committee determines the provisions of section 10 of this Act to be inadequate; and (5) contain provisions which will assure that the advisory committee will have adequate staff (either supplied by an agency or employed by it), will be provided adequate quarters, and will have funds available to meet its other necessary expenses. (c) To the extent they are applicable, the guidelines set out in subsection (b) of this section shall be followed by the President, agency heads, or other Federal officials in creating an advisory committee.TITLE 5 App. > INSPECTOR > § 2 § 2. Purpose and establishment of Offices of Inspector General; departments and agencies involved In order to create independent and objective units— (1) to conduct and supervise audits and investigations relating to the programs and operations of the establishments listed in section 11 (2) ; (2) to provide leadership and coordination and recommend policies for activities designed (A) to promote economy, efficiency, and effectiveness in the administration of, and (B) to prevent and detect fraud and abuse in, such programs and operations; and (3) to provide a means for keeping the head of the establishment and the Congress fully and currently informed about problems and deficiencies relating to the administration of such programs and operations and the necessity for and progress of corrective action; there is established— (A) in each of such establishments an office of Inspector General, subject to subparagraph (B); and (B) in the establishment of the Department of the Treasury— (i) an Office of Inspector General of the Department of the Treasury; and (ii) an Office of Treasury Inspector General for Tax Administration. TITLE 5 App. > INSPECTOR > § 9 § 9. Transfer of functions (a) There shall be transferred— (1) to the Office of Inspector General— (A) of the Department of Agriculture, the offices of that department referred to as the “Office of Investigation” and the “Office of Audit”; (B) of the Department of Commerce, the offices of that department referred to as the “Office of Audits” and the “Investigations and Inspections Staff” and that portion of the office referred to as the “Office of Investigations and Security” which has responsibility for investigation of alleged criminal violations and program abuse; (C) of the Department of Defense, the offices of that department referred to as the “Defense Audit Service” and the “Office of Inspector General, Defense Logistics Agency”, and that portion of the office of that department referred to as the “Defense Investigative Service” which has responsibility for the investigation of alleged criminal violations; (D) of the Department of Education, all functions of the Inspector General of Health, Education, and Welfare or of the Office of Inspector General of Health, Education, and Welfare relating to functions transferred by section 301 of the Department of Education Organization Act [ 20 U.S.C. 3441 ]; (E) of the Department of Energy, the Office of Inspector General (as established by section 208 of the Department of Energy Organization Act); (F) of the Department of Health and Human Services, the Office of Inspector General (as established by title II of Public Law 94–505); (G) of the Department of Housing and Urban Development, the office of that department referred to as the “Office of Inspector General”; (H) of the Department of the Interior, the office of that department referred to as the “Office of Audit and Investigation”; (I) of the Department of Justice, the offices of that Department referred to as (i) the “Audit Staff, Justice Management Division”, (ii) the “Policy and Procedures Branch, Office of the Comptroller, Immigration and Naturalization Service”, the “Office of Professional Responsibility, Immigration and Naturalization Service”, and the “Office of Program Inspections, Immigration and Naturalization Service”, (iii) the “Office of Internal Inspection, United States Marshals Service”, (iv) the “Financial Audit Section, Office of Financial Management, Bureau of Prisons” and the “Office of Inspections, Bureau of Prisons”, and (v) from the Drug Enforcement Administration, that portion of the “Office of Inspections” which is engaged in internal audit activities, and that portion of the “Office of Planning and Evaluation” which is engaged in program review activities; (J) of the Department of Labor, the office of that department referred to as the “Office of Special Investigations”; (K) of the Department of Transportation, the offices of that department referred to as the “Office of Investigations and Security” and the “Office of Audit” of the Department, the “Offices of Investigations and Security, Federal Aviation Administration”, and “External Audit Divisions, Federal Aviation Administration”, the “Investigations Division and the External Audit Division of the Office of Program Review and Investigation, Federal Highway Administration”, and the “Office of Program Audits, Urban Mass Transportation Administration”; (L) (i) of the Department of the Treasury, the office of that department referred to as the “Office of Inspector General”, and, notwithstanding any other provision of law, that portion of each of the offices of that department referred to as the “Office of Internal Affairs, Tax and Trade Bureau”, the “Office of Internal Affairs, United States Customs Service”, and the “Office of Inspections, United States Secret Service” which is engaged in internal audit activities; and (ii) of the Treasury Inspector General for Tax Administration, effective 180 days after the date of the enactment of the Internal Revenue Service Restructuring and Reform Act of 1998 [July 22, 1998], the Office of Chief Inspector of the Internal Revenue Service; (M) of the Environmental Protection Agency, the offices of that agency referred to as the “Office of Audit” and the “Security and Inspection Division”; (N) of the Federal Emergency Management Agency, the office of that agency referred to as the “Office of Inspector General”; (O) of the General Services Administration, the offices of that agency referred to as the “Office of Audits” and the “Office of Investigations”; (P) of the National Aeronautics and Space Administration, the offices of that agency referred to as the “Management Audit Office” and the “Office of Inspections and Security”; (Q) of the Nuclear Regulatory Commission, the office of that commission referred to as the “Office of Inspector and Auditor”; (R) of the Office of Personnel Management, the offices of that agency referred to as the “Office of Inspector General”, the “Insurance Audits Division, Retirement and Insurance Group”, and the “Analysis and Evaluation Division, Administration Group”; (S) of the Railroad Retirement Board, the Office of Inspector General (as established by section 23 of the Railroad Retirement Act of 1974); (T) of the Small Business Administration, the office of that agency referred to as the “Office of Audits and Investigations”; (U) of the Veterans' Administration, the offices of that agency referred to as the “Office of Audits” and the “Office of Investigations”; and [1] (V) of the Corporation for National and Community Service, the Office of Inspector General of ACTION; [1] (W) of the Social Security Administration, the functions of the Inspector General of the Department of Health and Human Services which are transferred to the Social Security Administration by the Social Security Independence and Program Improvements Act of 1994 (other than functions performed pursuant to section 105(a)(2) of such Act), except that such transfers shall be made in accordance with the provisions of such Act and shall not be subject to subsections (b) through (d) of this section; and (2) to the Office of the Inspector General, such other offices or agencies, or functions, powers, or duties thereof, as the head of the establishment involved may determine are properly related to the functions of the Office and would, if so transferred, further the purposes of this Act, except that there shall not be transferred to an Inspector General under paragraph (2) program operating responsibilities. (b) The personnel, assets, liabilities, contracts, property, records, and unexpended balances of appropriations, authorizations, allocations, and other funds employed, held, used, arising from, available or to be made available, of any office or agency the functions, powers, and duties of which are transferred under subsection (a) are hereby transferred to the applicable Office of Inspector General. (c) Personnel transferred pursuant to subsection (b) shall be transferred in accordance with applicable laws and regulations relating to the transfer of functions except that the classification and compensation of such personnel shall not be reduced for one year after such transfer. (d) In any case where all the functions, powers, and duties of any office or agency are transferred pursuant to this subsection, such office or agency shall lapse. Any person who, on the effective date of this Act [Oct. 1, 1978], held a position compensated in accordance with the General Schedule, and who, without a break in service, is appointed in an Office of Inspector General to a position having duties comparable to those performed immediately preceding such appointment shall continue to be compensated in the new position at not less than the rate provided for the previous position, for the duration of service in the new position.TITLE 5 App. > ETHICS > TITLE IV > § 402 Prev | Next § 402. Authority and functions How Current is This? (a) The Director shall provide, in consultation with the Office of Personnel Management, overall direction of executive branch policies related to preventing conflicts of interest on the part of officers and employees of any executive agency, as defined in section 105 of title 5 , United States Code. (b) The responsibilities of the Director shall include— (1) developing, in consultation with the Attorney General and the Office of Personnel Management, rules and regulations to be promulgated by the President or the Director pertaining to conflicts of interest and ethics in the executive branch, including rules and regulations establishing procedures for the filing, review, and public availability of financial statements filed by officers and employees in the executive branch as required by title II of this Act; (2) developing, in consultation with the Attorney General and the Office of Personnel Management, rules and regulations to be promulgated by the President or the Director pertaining to the identification and resolution of conflicts of interest; (3) monitoring and investigating compliance with the public financial disclosure requirements of title II of this Act by officers and employees of the executive branch and executive agency officials responsible for receiving, reviewing, and making available financial statements filed pursuant to such title; (4) conducting a review of financial statements to determine whether such statements reveal possible violations of applicable conflict of interest laws or regulations and recommending appropriate action to correct any conflict of interest or ethical problems revealed by such review; (5) monitoring and investigating individual and agency compliance with any additional financial reporting and internal review requirements established by law for the executive branch; (6) interpreting rules and regulations issued by the President or the Director governing conflict of interest and ethical problems and the filing of financial statements; (7) consulting, when requested, with agency ethics counselors and other responsible officials regarding the resolution of conflict of interest problems in individual cases; (8) establishing a formal advisory opinion service whereby advisory opinions are rendered on matters of general applicability or on important matters of first impression after, to the extent practicable, providing interested parties with an opportunity to transmit written comments with respect to the request for such advisory opinion, and whereby such advisory opinions are compiled, published, and made available to agency ethics counselors and the public; (9) ordering corrective action on the part of agencies and employees which the Director deems necessary; (10) requiring such reports from executive agencies as the Director deems necessary; (11) assisting the Attorney General in evaluating the effectiveness of the conflict of interest laws and in recommending appropriate amendments; (12) evaluating, with the assistance of the Attorney General and the Office of Personnel Management, the need for changes in rules and regulations issued by the Director and the agencies regarding conflict of interest and ethical problems, with a view toward making such rules and regulations consistent with and an effective supplement to the conflict of interest laws; (13) cooperating with the Attorney General in developing an effective system for reporting allegations of violations of the conflict of interest laws to the Attorney General, as required by section 535 of title 28 , United States Code; (14) providing information on and promoting understanding of ethical standards in executive agencies; and (15) developing, in consultation with the Office of Personnel Management, and promulgating such rules and regulations as the Director determines necessary or desirable with respect to the evaluation of any item required to be reported by title II of this Act. (c) In the development of policies, rules, regulations, procedures, and forms to be recommended, authorized, or prescribed by him, the Director shall consult when appropriate with the executive agencies affected and with the Attorney General. (d) (1) The Director shall, by the exercise of any authority otherwise available to the Director under this title, ensure that each executive agency has established written procedures relating to how the agency is to collect, review, evaluate, and, if applicable, make publicly available, financial disclosure statements filed by any of its officers or employees. (2) In carrying out paragraph (1), the Director shall ensure that each agency's procedures are in conformance with all applicable requirements, whether established by law, rule, regulation, or Executive order. (e) In carrying out subsection (b)(10), the Director shall prescribe regulations under which— (1) each executive agency shall be required to submit to the Office an annual report containing— (A) a description and evaluation of the agency's ethics program, including any educational, counseling, or other services provided to officers and employees, in effect during the period covered by the report; and (B) the position title and duties of— (i) each official who was designated by the agency head to have primary responsibility for the administration, coordination, and management of the agency's ethics program during any portion of the period covered by the report; and (ii) each officer or employee who was designated to serve as an alternate to the official having primary responsibility during any portion of such period; and (C) any other information that the Director may require in order to carry out the responsibilities of the Director under this title; and (2) each executive agency shall be required to inform the Director upon referral of any alleged violation of Federal conflict of interest law to the Attorney General pursuant to section 535 of title 28 , United States Code, except that nothing under this paragraph shall require any notification or disclosure which would otherwise be prohibited by law. (f) (1) In carrying out subsection (b)(9) with respect to executive agencies, the Director— (A) may— (i) order specific corrective action on the part of an agency based on the failure of such agency to establish a system for the collection, filing, review, and, when applicable, public inspection of financial disclosure statements, in accordance with applicable requirements, or to modify an existing system in order to meet applicable requirements; or (ii) order specific corrective action involving the establishment or modification of an agency ethics program (other than with respect to any matter under clause (i)) in accordance with applicable requirements; and (B) shall, if an agency has not complied with an order under subparagraph (A) within a reasonable period of time, notify the President and the Congress of the agency's noncompliance in writing (including, with the notification, any written comments which the agency may provide). (2) (A) In carrying out subsection (b)(9) with respect to individual officers and employees— (i) the Director may make such recommendations and provide such advice to such officers and employees as the Director considers necessary to ensure compliance with rules, regulations, and Executive orders relating to conflicts of interest or standards of conduct; (ii) if the Director has reason to believe that an officer or employee is violating, or has violated, any rule, regulation, or Executive order relating to conflicts of interest or standards of conduct, the Director— (I) may recommend to the head of the officer's or employee's agency that such agency head investigate the possible violation and, if the agency head finds such a violation, that such agency head take any appropriate disciplinary action (such as reprimand, suspension, demotion, or dismissal) against the officer or employee, except that, if the officer or employee involved is the agency head, any such recommendation shall instead be submitted to the President; and (II) shall notify the President in writing if the Director determines that the head of an agency has not conducted an investigation pursuant to subclause (I) within a reasonable time after the Director recommends such action; (iii) if the Director finds that an officer or employee is violating any rule, regulation, or Executive order relating to conflicts of interest or standards of conduct, the Director— (I) may order the officer or employee to take specific action (such as divestiture, recusal, or the establishment of a blind trust) to end such violation; and (II) shall, if the officer or employee has not complied with the order under subclause (I) within a reasonable period of time, notify, in writing, the head of the officer's or employee's agency of the officer's or employee's noncompliance, except that, if the officer or employee involved is the agency head, the notification shall instead be submitted to the President; and (iv) if the Director finds that an officer or employee is violating, or has violated, any rule, regulation, or Executive order relating to conflicts of interest or standards of conduct, the Director— (I) may recommend to the head of the officer's or employee's agency that appropriate disciplinary action (such as reprimand, suspension, demotion, or dismissal) be brought against the officer or employee, except that if the officer or employee involved is the agency head, any such recommendations shall instead be submitted to the President; and (II) may notify the President in writing if the Director determines that the head of an agency has not taken appropriate disciplinary action within a reasonable period of time after the Director recommends such action. (B) (i) In order to carry out the Director's duties and responsibilities under subparagraph (A)(iii) or (iv) with respect to individual officers and employees, the Director may conduct investigations and make findings concerning possible violations of any rule, regulation, or Executive order relating to conflicts of interest or standards of conduct applicable to officers and employees of the executive branch. (ii) (I) Subject to clause (iv) of this subparagraph, before any finding is made under subparagraphs (A)(iii) or (iv), the officer or employee involved shall be afforded notification of the alleged violation, and an opportunity to comment, either orally or in writing, on the alleged violation. (II) The Director shall, in accordance with section 553 of title 5 , United States Code, establish procedures for such notification and comment. (iii) Subject to clause (iv) of this subparagraph, before any action is ordered under subparagraph (A)(iii), the officer or employee involved shall be afforded an opportunity for a hearing, if requested by such officer or employee, except that any such hearing shall be conducted on the record. (iv) The procedures described in clauses (ii) and (iii) of this subparagraph do not apply to findings or orders for action made to obtain compliance with the financial disclosure requirements in title 2 [1] of this Act. For those findings and orders, the procedures in section 206 of this Act shall apply. (3) The Director shall send a copy of any order under paragraph (2)(A)(iii) to— (A) the officer or employee who is the subject of such order; and (B) the head of officer's or employee's agency or, if such officer or employee is the agency head, to the President. (4) For purposes of paragraphs (2)(A)(ii), (iii), (iv), and (3)(B), in the case of an officer or employee within an agency which is headed by a board, committee, or other group of individuals (rather than by a single individual), any notification, recommendation, or other matter which would otherwise be sent to an agency head shall instead be sent to the officer's or employee's appointing authority. (5) Nothing in this title shall be considered to allow the Director (or any designee) to make any finding that a provision of title 18, United States Code, or any criminal law of the United States outside of such title, has been or is being violated. (6) Notwithstanding any other provision of law, no record developed pursuant to the authority of this section concerning an investigation of an individual for a violation of any rule, regulation, or Executive order relating to a conflict of interest shall be made available pursuant to section 552 (a)(3) of title 5 , United States Code, unless the request for such information identifies the individual to whom such records relate and the subject matter of any alleged violation to which such records relate, except that nothing in this subsection shall affect the application of the provisions of section 552 (b) of title 5 , United States Code, to any record so identified.
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C -- NEHRP Recommended Seismic Provisions for New Buildings and Other Structures
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H.R.1505 -- National Security and Federal Lands Protection Act (Introduced in House - IH)
HR 1505 IH
112th CONGRESS 1st Session
H. R. 1505
To prohibit the Secretaries of the Interior and Agriculture from taking action on public lands which impede border security on such lands, and for other purposes.
IN THE HOUSE OF REPRESENTATIVES
April 13, 2011
Mr. BISHOP of Utah (for himself, Mr. KING of New York, Mr. HASTINGS of Washington, Mr. SMITH of Texas, and Mr. CARTER) introduced the following bill; which was referred to the Committee on Natural Resources, and in addition to the Committees on Agriculture and Homeland Security, for a period to be subsequently determined by the Speaker, in each case for consideration of such provisions as fall within the jurisdiction of the committee concerned
A BILL
To prohibit the Secretaries of the Interior and Agriculture from taking action on public lands which impede border security on such lands, and for other purposes.
Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the `National Security and Federal Lands Protection Act'.
SEC. 2. PROHIBITION ON IMPEDING CERTAIN ACTIVITIES OF THE SECRETARY OF HOMELAND SECURITY RELATED TO BORDER SECURITY.
(a) In General- The Secretary of the Interior or the Secretary of Agriculture shall not impede, prohibit, or restrict activities of the Secretary of Homeland Security on land under the jurisdiction of the Secretary of the Interior or the Secretary of Agriculture to achieve operational control (as defined in section 2(b) of the Secure Fence Act of 2006 (8 U.S.C. 1701 note; Public Law 109-367)) over the international land and maritime borders of the United States.
(b) Authorized Activities- The Secretary of Homeland Security shall have immediate access to any public land managed by the Federal Government (including land managed by the Secretary of the Interior or the Secretary of Agriculture) for purposes of conducting activities that assist in securing the border (including access to maintain and construct roads, construct a fence, use vehicles to patrol, and set up monitoring equipment).
(c) Clarification Relating to Waiver Authority-
(1) IN GENERAL- Notwithstanding any other provision of law (including any termination date relating to the waiver referred to in this subsection), the waiver by the Secretary of Homeland Security on April 1, 2008, under section 102(c)(1) of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (8 U.S.C. 1103 note; Public Law 104-208) of the laws described in paragraph (2) with respect to certain sections of the international border between the United States and Mexico and between the United States and Canada shall be considered to apply to all sections of the international land and maritime borders of the United States within 100 miles of the international land and maritime borders of the United States for the activities of the Secretary of Homeland Security described in subsection (b), including the construction of infrastructure, to achieve the operational control described in subsection (a).
(2) DESCRIPTION OF LAWS WAIVED- The laws referred to in paragraph (1) are the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.), the Endangered Species Act of 1973 (16 U.S.C. 1531 et seq.), the Federal Water Pollution Control Act (33 U.S.C. 1251 et seq.), the National Historic Preservation Act (16 U.S.C. 470 et seq.), the Migratory Bird Treaty Act (16 U.S.C. 703 et seq.), the Clean Air Act (42 U.S.C. 7401 et seq.), the Archaeological Resources Protection Act of 1979 (16 U.S.C. 470aa et seq.), the Safe Drinking Water Act (42 U.S.C. 300f et seq.), the Noise Control Act of 1972 (42 U.S.C. 4901 et seq.), the Solid Waste Disposal Act (42 U.S.C. 6901 et seq.), the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (42 U.S.C. 9601 et seq.), Public Law 86-523 (16 U.S.C. 469 et seq.), the Act of June 8, 1906 (commonly known as the `Antiquities Act of 1906') (16 U.S.C. 431 et seq.), the Act of August 21, 1935 (16 U.S.C. 461 et seq.), the Wild and Scenic Rivers Act (16 U.S.C. 1271 et seq.), the Farmland Protection Policy Act (7 U.S.C. 4201 et seq.), the Coastal Zone Management Act of 1972 (16 U.S.C. 1451 et seq.), the Wilderness Act (16 U.S.C. 1131 et seq.), the Federal Land Policy and Management Act of 1976 (43 U.S.C. 1701 et seq.), the National Wildlife Refuge System Administration Act of 1966 (16 U.S.C. 668dd et seq.), the Fish and Wildlife Act of 1956 (16 U.S.C. 742a et seq.), the Fish and Wildlife Coordination Act (16 U.S.C. 661 et seq.), subchapter II of chapter 5, and chapter 7, of title 5, United States Code (commonly known as the `Administrative Procedure Act'), the Otay Mountain Wilderness Act of 1999 (Public Law 106-145, 113 Stat. 1711), sections 102(29) and 103 of California Desert Protection Act of 1994 (16 U.S.C. 410aaa et seq.), the National Park Service Organic Act (16 U.S.C. 1 et seq.), Public Law 91-383 (16 U.S.C. 1a-1 et seq.), sections 401(7), 403, and 404 of the National Parks and Recreation Act of 1978 (Public Law 95-625, 92 Stat. 3467), the Arizona Desert Wilderness Act of 1990 (16 U.S.C. 1132 note; Public Law 101-628), section 10 of the Act of March 3, 1899 (33 U.S.C. 403), the Act of June 8, 1940 (16 U.S.C. 668 et seq.), (25 U.S.C. 3001 et seq.), Public Law 95-341 (42 U.S.C. 1996), Public Law 103-141 (42 U.S.C. 2000bb et seq.), the Forest and Rangeland Renewable Resources Planning Act of 1974 (16 U.S.C. 1600 et seq.), and the Multiple-Use Sustained-Yield Act of 1960 (16 U.S.C. 528 et seq.).
Constitution Free Zone - Map
Testimony of Professor John D. Leshy
Harry D. Sunderland Distinguished Professor
U.C. Hastings College of the Law
Hearing before the
Subcommittee on National Parks, Forest and Public Lands
Committee on Natural Resources
U.S. House of Representatives
On H.R. 1505
The National Security and Federal Lands Protection Act
1324 Longworth House Office Building, 10 A.M. July 8, 2011
Thank you for the opportunity to appear before the Subcommittee on this important matter. I am testifying on my own behalf, at the invitation of the Subcommittee, and not in any way representing my employer, U.C. Hastings College of the Law.
By way of background, I have worked on public lands policy and law for almost forty years, including service on the staff of this Committee and twice in the Solicitor's Office of the Department of the Interior — as Associate Solicitor for Energy and Resources from 1977 to 1980, and as Solicitor from 1993 until early 2001. I have taught various natural resources, public lands and environmental law courses many times stretching back to 1980. I am co-author of the standard law text on federal public land and resources law, now in its sixth edition. Also relevant to my testimony here today is that I have also taught constitutional law, particularly separation of powers and federalism, many times.
H.R. 1505 would do three things:
(1) It provides that the Secretaries of the Interior and Agriculture “shall not impede, prohibit, or restrict,” on lands under their jurisdiction, “activities of the Secretary of Homeland Security” (hereafter, DHS Secretary) to “achieve operational control” over the international land and maritime borders of the United States . It defines “operational control” as “the prevention of all unlawful entries” into the United States.
(2) It gives the DHS Secretary “immediate access to any public land” managed by any agency of the Federal Government for “conducting activities that assist in securing the border (including access to maintain and construct roads, construct a fence, use vehicles to patrol, and set up monitoring equipment).”
(3) It cements into statute, and vastly expands, a waiver of all requirements of thirty-six separate federal statutes that was issued by the DHS Secretary on April 1, 2008. The legal effect is to remove from the DHS all constraints imposed by any of these laws with respect to any activities he or she may conduct on any lands “within 100 miles of the international land and maritime borders of the United States” to achieve “operational control” over U.S. borders. This exemption would become permanent and absolute, as it
is “[n]otwithstanding any other provision of law (including any termination date relating to the waiver).”
I do not underestimate the importance, or the challenges, of securing the nation's borders from illegal entry. But this is the most breathtakingly extreme legislative proposal of its kind I have ever seen. I have grave concerns not only about its wisdom as a matter of policy, but also its constitutionality as a matter of law. I do not reach this conclusion lightly, but I firmly believe this legislation goes way, way beyond what is necessary and proper, in our constitutional system, to enforce the immigration laws.
Let me briefly describe the reasons for my opinion.
H.R. 1505's exemption from thirty-six federal statutes
The thirty-six separate federal statutes from which DHS, with its 200,000 employees and 55 billion dollar budget, would be exempt are our Nation's bedrock environmental laws – the safety net that protects the environment and natural resources with which our country has been blessed. They include the Clean Water Act, the Clean Air Act, the Administrative Procedure Act (providing for judicial review of actions by administrative agencies to ensure they are not arbitrary or capricious) and many other laws.
These statutes date back to 1899, and include statutes enacted in almost every decade since. They became law under more than a dozen different Presidents, of both parties. Collectively, they are the product of many thousands of hours of deliberation and discussion and compromise by many thousands of elected members of Congress. In nearly all cases, they became law with strong bi-partisan, near-unanimous support.
The statutes DHS would be exempt from collectively aim to protect clean air and water (including safe drinking water), safe disposal of toxic and solid waste, farmlands, forests, fish and wildlife (including migratory birds and endangered species), lands in the coastal zones, wild and scenic rivers, national parks, national forests, wilderness areas, and other natural resources.
H.R. 1505 would also exempt DHS from laws that protect the Nation's symbol, the American eagle; religious freedom and exercise; graves and sacred sites of Native Americans; and archeological and historic sites and resources. (These laws — the Eagle Protection Act, the Religious Freedom Restoration Act, the Native American Graves Protection and Repatriation Act, the American Indian Religious Freedom Act, the Archaeological and Historic Preservation Act, the Historic Sites, Buildings and Antiquities Act — are identified by legal citation, although their titles are, inexplicably, not included in the bill's text.)
Collectively, these laws have been genuine success stories. They have worked effectively to improve the quality of life for all Americans, and to protect values Americans have traditionally held dear. Opinion polls have consistently demonstrated sustained, strong public support for them.
H.R. 1505's possible broader exemption from related laws and regulations, including those
of state and local government
Although its text is far from transparent, H.R. 1505 may enlarge DHS's exemption beyond the specific requirements of the listed federal laws. Its subsection 2(c)(1) specifically ratifies (and makes permanent) the waiver issued by then-DHS Secretary Chertoff on April 1, 2008, “of the laws described in paragraph (2).” The waiver issued by Secretary Chertoff that day provided as follows: “I hereby waive in their entirety, . . . all federal, state, or other laws, regulations and legal requirements of, deriving from, or related to the subject of, the following laws, as amended,” and then proceeded to list the same laws identified in H.R. 1505. 73 Fed. Reg. 18293, 18294 (April 3, 2008) (emphasis added).
It is not clear whether H.R. 1505 would cement into federal law only a waiver of the specific requirements of the listed federal statutes, or instead Secretary Chertoff's much broader waiver of state and local laws and regulations “deriving from, or related to the subject of,” these listed federal laws.
It is entirely possible that, if H.R. 1505 became law, DHS would interpret H.R. 1505 to be consistent with Secretary Chertoff's approach. The DHS interpretation would probably not, as I discuss further below, be subject to review by the federal courts.
It is possible, then, that H.R. 1505 would also exempt DHS from any state or local law or regulation that in any way may be said to derive from, or relate to the subject of, the laws expressly named in H.R. 1505. This is a good reason for state and local governments to be gravely concerned by H.R. 1505. For example, many state environmental laws derive from or are responsive to invitations in federal laws like the Clean Air and Clean Water Acts for the states to assume regulatory control over such matters.
Geographic reach of H.R. 1505's exemption and authority
Section 2(c) of H.R. 1505 immunizes DHS activities from legal constraints over a large part of the territory of the United States – namely, all land within 100 miles of any border of the United States, whether it is the border between the U.S. and Mexico or Canada, or the maritime border along the coasts. Lands in the National Park System, the National Forest System, the National Wildlife Refuge System, the National Landscape Conservation System, and other areas of protected public lands — open to enjoyment by all Americans — comprise a substantial portion of the lands in this 100-mile belt.
It bears emphasis, however, that the DHS exemption extends not just to federally-owned land, but to all land in this vast area — including state and privately-owned land. The area encompasses ten whole states, including Florida and Hawaii, and a sizeable proportion of many others. Nearly two-thirds of the American people live and work in this 100-mile belt.
Sections 2(a) and (b) of H.R. 1505 apply nationwide, and not just in the 100-mile belt along the borders. Thus the Interior and Agriculture Secretaries would have no right, on any federal land they manage anywhere in the country, to “impede, prohibit, or restrict” DHS activities to prevent illegal entry in the United States.
And the DHS Secretary shall have “immediate access to any public land” anywhere in the country managed by any agency of the federal government — including the Nuclear Regulatory Commission, the Army Corps of Engineers and other units of the Defense Department, and all the myriad of other agencies that manage federal land.
The federal lands found across the nation comprise our crown jewels –our most iconic, culturally and biologically rich landscapes, including forested watersheds that supply most of our drinking water – and are the scene of many activities essential to our national and economic security. All are put at risk by this legislation.
Activities covered by H.R. 1505
Moreover, while H.R. 1505 applies to and exempts only the activities of the DHS, this is not very limiting. It covers any kind of activity that any of DHS's 200,000 employees and myriad contractors may undertake that relates, in the eyes of DHS, to deterring or preventing anyone from crossing any U.S. border illegally. H.R. 1505 expressly includes, in this range of activities, constructing and maintaining roads and fences and monitoring equipment. But H.R. 1505 is not limited to these activities, as extensive as they may be. It also would cover such things as constructing barracks and other support facilities for personnel and equipment, “back office” kinds of operations, surveillance activities, and many other things.
H.R. 1505 compared to waivers in existing law
It is worth comparing the exemptions and authority H.R. 1505 would give to DHS to the much more limited authority Congress has, on four occasions in the last sixteen years, given the DHS Secretary to waive federal environmental and related laws. This waiver authority, though subject to serious criticism by many commentators, has been circumscribed in several ways.
The first waiver authority was enacted in 1996, when Congress authorized the Attorney General to waive the requirements of two federal statutes, the National Environmental Policy Act (NEPA) and the Endangered Species Act (ESA), only to the extent “necessary to ensure expeditious construction of the barriers and roads” “in the “vicinity of the United States border to deter illegal crossings in areas of high illegal entry into the United States.” Pub. L. No. 104-208, div. C, Sec. 102; 110 Stat. 3009-554-55 (1996). This authority was never exercised. It was transferred along with other functions to the DHS when it was created in 2002.
Nine years later, in 2005, Congress enacted the REAL ID Act. It gave DHS authority to “waive all legal requirements” that the DHS, in its “sole discretion, determines necessary to ensure expeditious construction of the barriers and roads,” in the vicinity of the border in areas of high illegal entry. (No hearings were held on this waiver in either House of Congress. It was attached as a rider to an Emergency Supplemental Appropriations Act.)
The Secure Fence Act of 2006, 120 Stat. 2638, 2638-39, mandated construction of a fence along a much longer area of the border with Mexico, but did not otherwise affect the waiver authority.
Finally, in the Department of Homeland Security Appropriations Act of 2008, 121 Stat. 2042, 2090-91, Congress mandated construction of fencing along not less than 700 miles of the border with Mexico, and installation of additional physical barriers, roads, lighting, cameras, and sensors “to gain operational control of the southwest border.” It did not further address the waiver authority, but provided that in carrying out this section, the DHS Secretary should consult with other federal agencies, state and local governments, Indian tribes, and property owners “to minimize the impact on the environment, culture, commerce, and quality of life for the communities and residents located near the sites at which such fencing is to be constructed.”
Because the commands of H.R. 1505 apply “[n]otwithstanding any other provision of law,” it would sweep aside all previously expressed limitations. It makes Secretary Chertoff's waiver of April 1, 2008, which it expressly references, applicable to all DHS activities over a huge area.
The waiver is made permanent and uniform and absolute in a 100-mile wide swath of land along all the Nation's borders. It is not limited to matters necessary to ensure expeditious construction of barriers and roads. It contains no requirement that DHS consult with anyone or provide any sort of notice before taking any actions that are exempt from these laws. (It is not clear whether the consultation requirement contained in the 2008 Appropriations Act would survive enactment of H.R. 1505 in its current form, but that requirement by its own terms applies only to those who are “near the sites” of the 700 miles of fencing Congress mandated in that Act be constructed. )
Summary of the effect of H.R. 1505
The net effect is to give DHS practically unlimited authority to do anything that it wants to do to prevent any kind of illegal entry into the United States
(a) Over a vast geographic area encompassing public and private lands within 100 miles of the Nation's borders, exempt from any need to comply with thirty-six federal statutes (and possibly, as I noted earlier, without being subject to other federal, state or local laws or regulations that in any way relate to those laws);
(b) Over all federally-managed land found throughout the United States, overriding the authority of federal land managers; and
(c) All without the courts having the ability to review DHS actions and judgments, except on constitutional grounds, as I discuss further below.
The mischief this extreme concentration of authority in the DHS would create beggars the imagination. H.R. 1505 would effectively arm 200,000 DHS employees and their contractors with unilateral power to do what they want, without any advance notice, check, or process, over vast areas of federal land. It would put a cloud over every action every federal land manager might think proper to carry out his or her responsibilities under federal law to protect the lands and fish and wildlife and other resources.
It would immunize DHS personnel from regulation and liability for cleanup and restoration if their actions on federal lands polluted Salt Lake City's drinking water, or destroyed prime elk
hunting habitat in Wyoming or prime fish habitat in Idaho, or interfered with ranching activities on public lands in Montana, and so forth, practically ad infinitum.
It would give DHS unilateral, unconstrained and unreviewable power to exclude all Americans from, and restrict all kinds of activities on, federal land anywhere in the country – livestock grazing, timber harvesting, mining, hunting, fishing, hiking, snowmobiling, camping, skiing, rafting, and so forth. All DHS would need to do is assert that such an exclusion would facilitate prevention or deterrence of illegal entry in the United States – and no one could review or question its assertion.
It would license and immunize from objection all manner of interferences by DHS personnel with otherwise lawful activities of all kinds of users of federal land – ranchers, utilities, timber and oil and gas companies, hunters, anglers, hikers, off-road vehicle users. For the millions of Americans who depend upon federal lands for a livelihood, or who enjoy their amenities, it is difficult to imagine a measure more likely to create opportunity for conflict and harm.
It would license DHS to ignore protections in existing laws for Indian tribes to protect graves and sacred sites and cultural objects.
It would threaten the rights and prerogatives of private property owners. Some of the federal laws from which DHS would be exempt under H.R. 1505 protect private property owners from activities that contaminate their land, or pollute the air over and water on their lands, and otherwise interfere with their own uses of their land.
As I noted earlier, H.R. 1505 might also strip states and local governments of the power they possess to enforce their laws and regulations over a vast area, to the extent their laws and regulations “related to the subject of” the federal laws being waived. If DHS decides that these words of Secretary Chertoff's waiver are incorporated into H.R. 1505, and reads them broadly, then any state or local law that relates to the environment, natural resources, or cultural or religious freedom, could be rendered inapplicable to DHS activities.
DHS would be largely exempt from judicial review in carrying out H.R. 1505
DHS's actions in carrying out the awesome authority H.R. 1505 vests in it would be immune from review by the courts, except for constitutional claims, and then only in federal district court, with possible review by the U.S. Supreme Court if it chose to provide it.
This exclusion of judicial review has two sources. First, one of the thirty-six federal statutes expressly waived in H.R. 1505 is the Administrative Procedure Act (APA). This is the basic law providing for court review of actions by all administrative agencies in the executive branch, including the DHS. On the books for seventy-five years, the APA is a basic part of modern government, and a fundamental check against arbitrary and capricious actions by these agencies. Right now it applies to a broad array of DHS actions. H.R. 1505 would change that, and exempt DHS from it in connection with any of its activities in this huge swath of the Nation's land. This would free DHS to be arbitrary and capricious in its actions without fear of judicial review (at least to the extent no constitutional rights are implicated), and also to ignore the other obligations the APA puts on federal agencies, such as the obligation to provide for notice and comment in formulating rules and policies.
Second, H.R. 1505 enlarges the provision of the 2005 Real ID Act that prevents federal courts from reviewing DHS actions, except for constitutional claims. The 2005 Act covers actions that DHS deems necessary to ensure expeditious construction of barriers and roads along the border with Mexico. H.R. 1505 would extend this immunity to all DHS activities on all the U.S. borders. While judicial review of constitutional claims survives, it is only possible in federal trial courts, with only possible discretionary review by the U.S. Supreme Court (eliminating review by the federal courts of appeals). See Sec. 102(c)(2)(A), (C), REAL ID Act of 2005, reprinted in 8 USC 1103 note (2006).
DHS decision-making would be largely unchecked and unreviewable
In sum, H.R. 1505 allows unelected executive branch personnel — the DHS Secretary and all persons under him or her — to make decisions and exercise power virtually without any check. Because judicial review is precluded except for constitutional claims, and because H.R. 1505 lacks any limiting definitions of any of its key concepts, it is entirely up to DHS to decide how to interpret and apply the broad provisions of H.R. 1505. Neither the courts nor anyone else would be able to question effectively whether DHS has properly determined, for example, that (a) “activities” it wants to carry out without interference will actually “assist” in “securing the border,” or (b) Interior Department officials are “imped[ing]” DHS efforts to “achieve operational control” over the border.
The DHS Secretary, generally speaking, has no expertise in environmental or natural resource matters, nor with land management in general. This is worth emphasizing because some U.S. environmental laws give officials charged with implementing them some limited power to make exceptions, or to adjust their requirements in particular circumstances. The ESA, for example, contains processes for exemption or adjustment in areas like emergencies, disasters, and national security. 16 U.S.C. 1536 (g), (j), (p). This kind of flexibility has been justified on the ground that these officials have knowledge and expertise to make judgments about when flexibility in these laws is appropriate. H.R. 1505 does not rest on such reasoning. It simply, and crudely, elevates the goal of preventing all illegal entry into the United States above every other competing consideration, including otherwise applicable legal requirements and responsibilities.
It is no answer to this dire picture of unchecked absolute power to say that DHS would be unlikely ever to exercise the authority H.R. 1505 would give it to the ultimate, extreme lengths I have suggested here. Once such a blanket exemption is written into law, the hydraulic pressure on DHS will be enormous to exercise its power to the fullest extent. Lord Acton, a British politician and historian and great admirer of the American governmental structure, once cautioned not to give people in positions of power “a favourable presumption that they [can do] no wrong. If there is any presumption, it is the other way, against the holders of power, increasing as the power increases. … All power tends to corrupt; absolute power corrupts absolutely.”
For a demonstration of the wisdom of Lord Acton's dictum, one need only look at DHS's exercise of the limited waiver authority Congress has already given it. This authority was optional – DHS could have chosen not to exercise it at all. Instead, DHS repeatedly exercised it, with ever-widening scope and effect. What began as a limited waiver for a handful of federal laws in certain small areas ended up as a blanket waiver of many laws along a large swath of the border with Mexico. Moreover, as I noted earlier, Secretary Chertoff's last waiver – the one specifically referenced in H.R. 1505, also “waive[d] … in their entirety, . . . all federal, state, or other laws, regulations and legal requirements of, deriving from, or related to the subject of,” the listed federal statutes.
H.R. 1505 would create confusion, uncertainty, and conflict
A report prepared by Dr. Kirk Emerson on Interagency Cooperation on U.S.-Mexico Border Wilderness Issues (dated September 3, 2010) states at page 7 that while the Chertoff waivers did expedite construction of the border fence, they created opposition, frustration, and strained relations, and left “municipalities, land managers, and other entities confused as to what laws DHS is and is not accountable to on the border and under what circumstances.”
H.R. 1505, which vastly expands the geographic scope and subject-matter coverage of the DHS exemption, and which contains some serious ambiguities, could only multiply such confusion many times over.
Congress should consider scaling back, not expanding, DHS's authority
I do not believe that Congress needs to expand the exemptions authorized by existing law, and certainly not on the Draconian scale of H.R. 1505. If anything, Congress should be considering eliminating or scaling them back. For one thing, illegal immigration across the border with Mexico has “sputtered to a trickle,” as the New York Times reported in its lead story two days ago.
For another, most existing environmental and resource management and protection laws contain a good deal of flexibility. Many of them have faced various kinds of challenges in implementation over the years, and have found ways to meet those challenges. A number of them have explicit provisions to address emergencies and problems of national security or law enforcement. All this makes a powerful case that the limited waivers provided for in existing law were neither necessary nor wise.
I know that there have been sporadic, relatively isolated instances where DHS has complained about restrictions imposed by other federal agencies on its efforts to safeguard the Nation's borders, and particularly its efforts to build a fence along parts of the border with Mexico. I am also aware that DHS and other federal agencies, particularly the land management agencies at Interior and Agriculture, have made many efforts to address these concerns in a collaborative way. When I was co-chairing the Obama-Biden transition at the Interior Department in late 2008, I was briefed by then–Deputy Secretary Lynn Scarlett about these efforts. She reported that much progress had been made in this regard.
I know that a recent GAO report (GAO-1 1-77, November 2010) made several useful recommendations for closer cooperation, and with which the relevant agencies concurred. In her testimony to this Subcommittee and a subcommittee of the Committee on Oversight and Government Reform on April 1 5 of this year, former Deputy Secretary Scarlett gave numerous examples of how, in her words, “[c]ollaboration by [federal] land managers with border security agencies improves border security and can save taxpayer dollars while also achieving other land management goals.” “Curtailing that interaction,” she said, will reduce effectiveness, increase costs, and reduce operational capacity. I agree with her.
All this suggests strongly to me that, to the extent there are site-specific problems with environmental laws, federal land management, and border security, they can be successfully addressed without resort to waiver or exemption.
To the extent any problems remain or arise that might require the attention of the Congress, the appropriate response, at most, is very careful wielding of a surgical scalpel on specific laws or provisions that have been clearly shown to cause problems that cannot be remedied by agency collaboration. The approach of H.R. 1505, by contrast, is to address these issues by detonating the legal equivalent of a nuclear weapon, altogether wiping out many decades of carefully constructed and balanced laws and immunizing DHS from effective review and control.
H.R. 1505 is fundamentally at odds with the Founding Fathers' vision of American government
The authority found in existing law for DHS to exempt itself from various federal laws is, as I have noted, much more narrowly circumscribed than that contained in H.R. 1505. Yet these provisions in existing law have attracted many critics, and almost no defenders, in the legal community, both as to their wisdom and their constitutionality. See, e.g., Kate R. Bowers, Saying What the Law Isn't: Legislative Delegations of Waiver Authority in Environmental
Laws, 34 Harvard Envt'l. L. Rev. 257 (2010). Federal district judges have rejected constitutional challenges to the DHS waivers, but only after emphasizing their limited application to specific DHS activities regarding fence construction in specifically identified geographic areas. For this reason, these court decisions can hardly be construed as an endorsement of the vastly expanded exemptions H.R. 1 505 would provide. The Supreme Court declined to review the decisions, without stating any reason for its action. See, e.g., County of El Paso v. Chertoff, 2008 U.S. Dist. LEXIS 83045 (W.D. Tex. 2008), cert. den. 129 S. Ct. 2789 (2009). Defenders of Wildlife v. Chertoff, 527 F. Supp. 2d 119 (D.D.C. 2007), cert. den. 128 S. Ct. 2962 (2008).
Four days ago, the Nation celebrated Independence Day, commemorating the 235th anniversary of the Declaration of American Independence to escape what the colonists regarded as the tyranny of George III. The Declaration recounted numerous instances of arbitrary and offensive action by that distant, unelected monarch. Among the examples it cited of his oppressive, unreviewable power over the colonists was this one: “He has refused [to consent to the laws the colonists had adopted, which laws were] the most wholesome and necessary for the public good.”
Memories of George III's capacity for unaccountable tyranny were still fresh when the Founding Fathers met in Philadelphia 224 years ago to draft the Constitution of the United States. In recent months we have heard much about the Constitution and the need for faithfulness to its principles. As a teacher of constitutional law, I heartily welcome giving attention to our fundamental charter.
In a famous passage, James Madison, a principal author of the Constitution, wrote that the “accumulation of all powers, legislative, executive, and judiciary, in the same hands … may justly be pronounced the very definition of tyranny.” Federalist No. 47. This concern inspired the constitutional framers to create a system that a leading constitutional scholar has described as “deliberately fragmented centers of countervailing power, in a vision almost Newtonian in its inspiration.” Tribe, American Constitutional Law (3d ed. 2000, p. 7). As Madison put the matter in Federalist # 51, the Framers' method was to “so contriv[e] the interior structure of the government as that its several constituent parts may, by their mutual relations, be the means of keeping each other in their proper places.” On the importance of judicial involvement, Alexander Hamilton, in Federalist # 78, quoted the French philosopher Montesquieu: “[T]here is no liberty, if the power of judging be not separated from the legislative and executive powers.” Hamilton went on to describe an independent judiciary “the citadel of the public justice and the public security,” and emphasized its importance in checking the “effects of those ill humors, which … sometimes… have a tendency … to occasion dangerous innovations in the government….”
The checks and balances the Founding Fathers put into our fundamental charter have provided stability and guarded against arbitrary exercise of power. As Chief Justice Burger wrote for the Court in INS v. Chadha, 462 U.S. 919, 959 (1983):
The choices we discern as having been made in the Constitutional Convention impose burdens on governmental processes that often seem clumsy, inefficient, even unworkable, but those hard choices were consciously made by men who had lived under a form of government that permitted arbitrary governmental acts to go unchecked. … With all the obvious flaws of delay, untidiness, and potential for abuse, we have not yet found a better way to preserve freedom than by making the exercise of power subject to the carefully crafted restraints spelled out in the Constitution.”
The result of our grand constitutional experiment has been freedom and economic vitality that have made the United States the envy of the world.
Justice Scalia has observed that our governmental system must continually wrestle with how to allocate power in such fashion as to preserve the equilibrium the Constitution sought to establish—so that “a gradual concentration of the several powers in the same department,” Federalist No. 51, p. 321 (J. Madison), can effectively be resisted. Frequently an issue of this sort will come before the Court clad, so to speak, in sheep's clothing: the potential of the asserted principle to effect important change in the equilibrium of power is not immediately evident, and must be discerned by a careful and perceptive analysis.
Morrison v. Olson, 487 U.S. 654, 699 (1988) (dissenting opinion).
A careful analysis of H.R. 1505 shows that it is fundamentally inconsistent with the Framers' vision. Linda Greenhouse, a distinguished legal commentator, recently called the limited waiver DHS has from existing laws “a deeply disquieting distortion of how the American system of government is supposed to work.” Legacy of a Fence, New York Times, Jan. 22, 2011.
H.R. 1505 would magnify that distortion many-fold. If by some miracle of time travel it could be put before those who framed and supported the Declaration of Independence and the Constitution for approval, I am confident it would be soundly defeated.
I urge the subcommittee to abandon any such effort along this line, to reconsider the mischievous waivers and exemptions in existing law, and to remain faithful to the carefully constructed system of checks and balances our Nation's founders bequeathed to us.
COMMENT: I think a case can be made that the Endangered Species Act is actually in violation of the separation of church and state provisions of the US Constitution.
The issue is basically are we going to protect people and our national security? Or are we going to put protecting the environment ahead of protecting people and national security?
The idea that we have some duty to put environmental protection ahead of public safety and national security is really astonishing….and has no foundation whatsoever in our Constitution.
Event
Planning Grant: I/UCRC in Painting/Coating Application and Surface Inspection Systems
A meeting for members of the Industry/University Cooperative Research Center (I/UCRC)
October 5, 2011 8:00 AM to
October 6, 2011 5:00 PM
TBD
This is a planning meeting to discuss the feasibility of starting a new center in Painting/Coating Application and Surface Inspection Systems. Companies interested in this topic are welcome to help guide the center in its research objectives and in providing suggests with respect to governance of the center. Center management will welcome suggestions and guidance in setting research directions.
NSF Related Organizations
Industrial Innovation and Partnerships
• Ninth Circuit Finds Jurisdiction Over Foreign Corporation Based On Its Subsidiary's Contacts in the United States
• Sheppard Mullin Richter & Hampton LLP By Bram Hanono In the recent case of Bauman v. DaimlerChrysler Corp. (No. 07-15386 (9th Cir. May 18, 2011)), the Ninth Circuit expanded the use of "agency theory" to impose personal jurisdiction over a foreign corporation doing business in the U.S. solely through its U.S. subsidiary. The court found jurisdiction based on the subsidiary's contacts within California, even though the lawsuit was initiated by non-U.S. residents regarding acts allegedly committed in a foreign country that had nothing to do with the subsidiary's contacts.
If this decision stands, it has the potential to affect any foreign company doing business in the U.S. through subsidiaries, even if those subsidiaries have nothing to do with the company's alleged actions giving rise to the lawsuit.
In the decision, the Ninth Circuit held that personal jurisdiction existed over DaimlerChrysler AG (DCAG), a German company, based in part on its right to maintain control over Mercedes-Benz USA LLC (MBUSA), its wholly owned U.S. subsidiary. The court held that DCAG could be haled into court in California due to MBUSA's contacts within California .
Please see full article below for more information.
On June 22 the House Transportation and Infrastructure Committee voted 35-19 to approve the “ Clean Water Cooperative Federalism Act ”, H.R. 2018 . In a prior letter to the chairs of the Committee environmental organizations wrote ” H.R. 2018 would limit the federal government's ability to compel states to effectively implement or make necessary improvements to their water quality standards to deal with modern pollution challenges. In essence, this bill would deprive EPA of the tool it used to restore Lake Erie and is now being used to clean up the Florida Everglades, Chesapeake Bay and other waters. The bill would also block EPA from objecting to individual permits that fail to comply with water quality standards .”
In voting for H.R. 2018, Rep. Altmire joined the Republican majority along with Minority Committee Chair Rahall (D-WV) and three other Democrats.
Sec. 1. Short title; table of contents.
Sec. 2. Purpose.
Sec. 3. Definitions.
Sec. 4. Establishment of Civilian Property Realignment Board.
Sec. 5. Board Meetings.
Sec. 6. Board Duties and OMB Review Process.
Sec. 7. Co-location among Postal Service Properties.
Sec. 8. Realignment of Real Property owned or managed by the Bureau of Overseas Building
Operations.
Sec. 9. Congressional Consideration of Board Recommendations.
Sec. 10. Implementation of Board Recommendations by Executive Agencies.
Sec. 11. Authorization of Appropriation and Funding.
Sec. 12. Pay and Travel Expenses.
Sec. 13. Executive Director.
Sec. 14. Staff.
Sec. 15. Contracting Authority.
Sec. 16. Termination.
Sec. 17. Preclusion of Judicial Review.
Sec. 18. Report by the Board to OMB within Two Years.
SEC. 2. PURPOSE.
PURPOSE. The purpose of this Act is to expedite the disposal of unneeded Federal civilian property and realize savings by taking steps to:
(a) create a fair process that will result in the timely disposal and realignment of Federal civilian real property;
TERMINATION: WATER AND WASTEWATER TREATMENT PROJECTS
Corps of Engineers
Water and wastewater treatment projects, often referred to as "environmental infrastructure" projects,
are outside the Corps of Engineers' main mission areas of commercial navigation, flood and storm damage
reduction, and significant aquatic ecosystem restoration. Therefore, as in past years the Budget does not
include funding for these projects, but rather redirects these resources to other, higher-performing projects
that are within the Corps' main missions.
Funding Summary
(In millions of dollars)
. 2010 Enacted 2012 Request 2012 Change from 2010
Budget Authority........................................................................................................................................ 129 0 -129
Justification
In 2010, the Congress directed funding to water and wastewater treatment projects in the Corps' budget
even though these projects are outside of the Corps' main mission areas. Since 1992, the Congress has
authorized approximately 450 sewage and wastewater treatment projects and has directed hundreds of
millions of dollars toward them. The Corps does not assess the economic and environmental costs and
benefits of these water and wastewater treatment projects and, therefore, has no basis to determine the
value of these projects to the Nation. Providing funding in the Corps of Engineers' budget for environmental
infrastructure projects is not cost effective and duplicates funding for these types of projects in other Federal
agencies, including the Environmental Protection Agency and the Department of Agriculture. Congressional
funding for these projects through the Corps bypasses those agencies' processes for setting funding priorities.
The Budget continues to propose no funding for these types of projects for the Corps.
TERMINATION: WATER RESOURCES RESEARCH ACT PROGRAM
Department of the Interior
The Administration proposes to eliminate Geological Survey (USGS) grants to 54 Water Resources Research
Institutes, as there is not a Federal need or a clear Federal responsibility for this research.
Funding Summary
(In millions of dollars)
. 2010 Enacted 2012 Request 2012 Change from 2010
Budget Authority........................................................................................................................................ 7 0 -7
Justification
Each State, as well as the District of Columbia, Puerto Rico, the U.S. Virgin Islands and Guam, operates
a Water Resources Research Institute at their land grant institute to conduct applied research on water
quality and availability, as well as drought and flood hazards at the local scale. This research, however, is
not a high priority for USGS, which is responsible for studying water issues across the Nation. As a Federal
science bureau, USGS monitors surface water through the nationwide network of stream gages, assesses
water quality through the National Water Quality Assessment, and studies and models groundwater quality
and availability. These programs at the regional and national scales are used by stakeholders across the
country and take precedent over grants that do not address national needs.
TERMINATION: WATERSHED AND FLOOD PREVENTION PROGRAM
Department of Agriculture
The Administration proposes to terminate the Watershed and Flood Prevention Operations program.
The Congress has provided funding entirely to specific projects without any merit-based criteria, such as
cost-effectiveness.
Funding Summary
(In millions of dollars)
. 2010 Enacted 2012 Request 2012 Change from 2010
Budget Authority........................................................................................................................................ 30 0 -30
Justification
This program was first implemented under the authorities of the Watershed Protection and Flood
Prevention Act of 1954 (Public Law 83-566) and the Flood Control Act of 1944 (Public Law 78-534). In 2010,
almost 75 percent of the program was directed to specific projects, eliminating the Natural Resource
Conservation Service's (NRCS's) ability to use project evaluations as a basis for prioritizing funding. In
addition, a 2003 Office of Management and Budget analysis showed that this NRCS program has a lower
economic return than other Federal flood prevention programs (such as those in the Army Corps of Engineers
or the Federal Emergency Management Agency).1
Citations
1 Army Corps of Engineers, 2003 Budget, pp. 294-295.
TERMINATION: WATERSHED REHABILITATION PROGRAM
Department of Agriculture
The Administration proposes to eliminate funding for the Department of Agriculture (USDA) Natural
Resources Conservation Service's (NRCS's) Watershed Rehabilitation program as the program's mission is
inconsistent with underlying Federal role in local dam rehabilitation.
Funding Summary
(In millions of dollars)
. 2010 Enacted 2012 Request 2012 Change from 2010
Budget Authority........................................................................................................................................ 40 0 -40
Justification
Since 2000, the Watershed Rehabilitation program has funded rehabilitation activities for flood control
dams originally constructed with Federal support as dams reach the end of their 50-year design life. Flood
control dams were originally constructed with the understanding that local sponsors would be responsible
for continuing operations and maintenance. Furthermore, local communities have increased the financial risk
of dam failure by allowing residential and commercial development in vulnerable floodplain areas around
dams. The localized benefits of dam rehabilitation should be funded through local sources.
REDUCTION: CLEAN WATER AND DRINKING WATER STATE REVOLVING FUNDS
Environmental Protection Agency
The Administration proposes to reduce funding by $947 million total for the Clean Water and Drinking
Water State Revolving Funds (SRFs). The Environmental Protection Agency's (EPA's) SRFs provide grants
to States to capitalize their State-run revolving funds, which provide loans to support improvements in
municipal wastewater and drinking water systems. The Administration proposes $1.55 billion for the Clean
Water SRF and $990 million for the Drinking Water SRF. This is a reduction from the historically high
funding levels provided in 2010, but a total of $1 billion more than provided in regular appropriations in
2009.
Funding Summary
(In millions of dollars)
. 2010 Enacted 2012 Request 2012 Change from 2010
Budget Authority........................................................................................................................................ 3,487 2,540 -947
Justification
The Administration continues robust support for SRFs and is focusing on working with States and
municipalities to enhance their technical, managerial and financial capacity. Future budgets for SRFs
gradually adjust through 2016 with the goal of providing, on average, about five percent of water
infrastructure spending annually. In 2010, SRFs made available $8.8 billion in financing to local communities
(this does not include American Recovery and Reinvestment Act funding).
Federal funding provided through the SRFs will act as a catalyst for efficient system-wide planning and
ongoing management of sustainable water infrastructure as EPA works with States and municipalities to
implement its Sustainable Water Infrastructure Policy. As part of this policy, the Budget requires that
States use at least 20 percent of their Clean Water SRF capitalization grant and 10 percent of their Drinking
Water capitalization grant for green infrastructure projects. The Administration also recognizes a need,
particularly in disadvantaged communities, for additional Federal assistance in supporting water and
wastewater infrastructure.
The Administration's proposal of $2.5 billion total for SRFs maintains the President's commitment to
helping provide clean and safe water and represents a four-year investment (2009 to 2012) totaling almost
$17 billion. REDUCTION: NONPOINT SOURCE GRANTS
Environmental Protection Agency
The Budget proposes $165 million for Section 319 Nonpoint Source Grants, a $36 million reduction from
2010. This decrease reflects the Environmental Protection Agency's (EPA) shift in emphasis to its core
programs, as well as the fact that the number of nonpoint source sectors has decreased as EPA has brought
formerly nonpoint source sectors such as concentrated animal feeding operations and stormwater under
regulation as point sources.
Funding Summary
(In millions of dollars)
. 2010 Enacted 2012 Request 2012 Change from 2010
Budget Authority........................................................................................................................................ 201 165 -36
Justification
Section 319 Nonpoint Source Grants help States implement their own nonpoint source management
programs. Through these grants, States fund nonpoint source staff, watershed planning, and project
implementation to address water pollution runoff from urban, agricultural, and other sources.
In 2012, EPA is emphasizing its core permitting programs that address point source pollution. Additionally,
the number of nonpoint source sectors has declined over time as EPA has brought formerly nonpoint source
sectors such as concentrated animal feeding operations and stormwater under regulation as point
sources. Some of this program's work also is duplicative with the Department of Agriculture conservation
programs.
PROGRAM INTEGRITY OVERVIEW
Government-wide
The Administration supports initiatives related to ensuring that Federal agencies are responsible stewards
of taxpayer resources. In fact, improving Federal financial management and eliminating waste are two
key areas of the Administration's Accountable Government Initiative to improve the operation and
effectiveness of Federal agencies.
Unfortunately, the Federal Government wastes billions of American taxpayers' dollars each year, including
billions of dollars paid improperly to individuals, organizations, and contractors, as well as billions of dollars
in debt owed to the Government. In 2010 alone, the Federal Government made an estimated $125 billion
in improper payments. In order to improve Government efficiency and prevent and recapture improper
payments, the President has issued three directives to agencies to prevent and recapture improper payments,
and signed into law new improper payments legislation, since November 2009. To help further drive
Government performance, the President has also set a goal of reducing improper payments by $50 billion
and recapturing at least $2 billion by the end of 2012. The Administration has taken important steps toward
achieving these goals, which have yielded early results. In 2010, the Government-wide improper payment
rate declined to 5.49 percent, a decrease from the 5.65 percent reported in 2009. Agencies also reported that
they recaptured $687 million in improper payments in 2010 -- the highest recapture amount to date. However,
despite these early successful results, the Administration has identified additional tools included in the
Budget that will help drive further progress in reducing and recapturing improper payments.
While agencies sometimes make improper payments, they also have trouble collecting money that is owed
to Federal agencies. In 2007, the Government Accountability Office (GAO) estimated that approximately
60,000 Federal contractors were delinquent on over $7 billion in Federal taxes. In 2008, GAO found that
over 27,000 Medicare providers owed more than $2 billion in tax debt. Through the Federal Payment Levy
Program, the Treasury currently deducts (levies) only up to 15 percent of a payment to Federal contractors
and Medicare providers with delinquent tax debt.
The 2012 Budget includes a number of legislative and administrative reforms on improper payments and
debt collection, which collectively comprise our program integrity efforts. Many of these proposals will
provide savings for the Federal Government (the savings for these proposals are shown in the table on the
following page) and support government-wide efforts to improve the management and oversight of Federal
resources. Collectively, these proposals will result in $167 billion in savings to the Federal Government
over ten years if enacted. In addition, other administrative proposals, while not resulting in direct Federal
savings, will also improve the operation and efficiency of important Federal programs.
The Administration's program integrity proposals are included on the following pages. These include
provisions previously proposed -- such as discretionary allocation adjustments for the Department of Health
and Human Services, the Social Security Administration, the Internal Revenue Service, and the Department
of Labor -- and new proposals for expanded debt collection authorities and to support Federal fraud-detection
technologies. If implemented, all of these proposals could help further improve stewardship of Federal
resources.
PARTNERSHIP
FUND FOR PROGRAM INTEGRITY INNOVATION
Executive Office of the President
The Partnership Fund for Program Integrity Innovation, which is managed by the Office of Management
and Budget in consultation with Federal, State, local, and other stakeholders, provides funding for Federal,
State, and local agencies to pilot and evaluate innovations to improve service delivery, payment accuracy,
and administrative efficiency across Federal assistance programs. The Partnership Fund targets pilots that
bridge program and agency silos to promote consistent and judicious use of resources, including staff,
information, systems, and processes. In addition to funding pilots that implement and test administrative
changes, the Partnership Fund allows for pilot projects that simulate the effects of more efficient, accurate
methods of service delivery that would require changes to existing regulatory or statutory authorities. These
simulations can inform both the Administration and the Congress about whether changes in authority may
be warranted. As pilots are selected, funding is transferred to the applicable Federal agencies to administer
the pilots in conjunction with Federal agencies, States or localities. The Administration proposes $20 million
in a discretionary allocation adjustment in 2012 to fund pilots, which will improve integrity of program
administration across multiple Federal assistance programs. The 2010 Consolidated Appropriations Act
(P.L. 111-117) included $37.5 million authorized through 2012 for the Partnership Fund. Justification
The Partnership Fund builds alliances among Federal, State, and local agencies to identify, pilot, and
evaluate new ideas that boost efficiency and prevent improper payments. The Partnership Fund prioritizes
pilots that target programs with high error rates and that also demonstrate high return on investment in
order to yield the greatest savings and efficiencies for taxpayers. For example, a recently funded pilot
simulation to reduce error in the Earned Income Tax Credit (EITC) program offers potential savings of over
$100 million annually for a pilot investment of $2 million. This pilot, managed by the Department of the
Treasury, will identify both current and new authorities required to take the pilot to scale. Statute requires
that, in the aggregate, Partnership Fund pilots save at least as much as they cost. Based on projections in
early pilots and pilots under development, the Partnership Fund will be able to use the additional funding
of $20 million to prioritize new projects that, like the EITC pilot, promise a significant return on investment.
112th Congress 1st Session
____________ ____
A BILL
____________ ____
To expedite disposal of unneeded civilian properties and realize savings.
Be it enacted by the Senate and House of Representatives of the United States
of America in Congress assembled, Justification
Before considering more significant investments in transitional job models, the Administration seeks to
integrate evidence from recent evaluations and the current demonstration. Three recent random-assignment
evaluations of transitional job programs for ex-offenders and Temporary Assistance for Needy Family
program recipients provide mixed results about the effectiveness of these programs.1,2 The current
demonstration will test enhanced transitional jobs models, designed to provide more substantive subsidized
jobs and better services to help participants succeed in unsubsidized employment. The Administration
hopes to explore whether modifications to the program -- for example, more of a focus on the transition from
the subsidized job -- would improve employment outcomes. While the demonstration is underway, some
funds from the proposed Workforce Innovation Fund could support additional targeted testing of transitional
jobs.
Citations
1 Dan Bloom, Transitional Jobs: Background, Program Models, and Evaluation Evidence, 2010.
2 Cindy Redcross et al, Work After Prison: One Year Findings from the Transitional Jobs Reentry Demonstration,
2010. SEC.10. IMPLEMENTATION OF BOARD RECOMMENDATIONS BY EXECUTIVE AGENCIES.
(a) Subject to section 9 of this Act, the agencies shall prepare and carry out each recommendation of the Board transmitted to the Congress by the Director pursuant to section 6(g) of this Act. Preparations to implement recommendations shall begin immediately. The agencies shall commence physical implementation of all such recommendations no later than two years after the date on which the Director transmits a report to the Congress pursuant to (9) An agency shall convey property under this sub-section utilizing the same disposal authorities as in section 10(c)(1) of this Act.
(g) Environmental Considerations.
(1) (A) When implementing the recommended actions for properties that have been identified in the Board's report, as specified in section 6(f), and subject to paragraph (2) of this subsection and in compliance with the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (42 U.S.C. 9601 et seq), including section 120(h) thereof (42 U.S.C. 9620(h)), Federal agencies may enter into an agreement to transfer by deed real property with any person.
(B) The head of the disposing agency may require any additional terms and conditions in connection with an agreement authorized by subparagraph (A) as the head of the disposing agency considers appropriate to protect the interests of the United States. Such additional terms and conditions shall not affect or diminish any rights or obligations of the federal agencies under CERCLA section 120(h) (including, without limitation, the requirements of CERCLA section 120(h)(3)(A) and section CERCLA 120(h)(3)(C)(iv)).
(2) A transfer of real property or facilities may be made under paragraph (1) only if the head of the disposing agency certifies to the Board and Congress that: (A) the costs of all environmental restoration, waste management, and environmental compliance activities otherwise to be paid by the disposing agency with respect to the property or facilities are equal to or greater than the fair market value of the property or facilities to be transferred, as determined by the head of the disposing agency; or
(B) if such costs are lower than the fair market value of the property or facilities, the recipient of the property or facilities agrees to pay the difference between the fair market value and such costs.
(3) In the case of property covered by a certification under paragraph 2(A), the disposing agency may pay the recipient of such property or facilities an amount equal to the lesser of:
(A) the amount by which the costs incurred by the recipient of such property or facilities for all environmental restoration, waste management, and environmental compliance activities with respect to such property or facilities exceed the fair market value of such property or facilities as specified in such certification; or
(B) the amount by which the costs (as determined by the head of the disposing agency) that would otherwise have been incurred by the Secretary for such restoration, waste management, and environmental compliance activities with respect to such property or facilities exceed the fair market value of such property or facilities as so specified.
(4) As part of an agreement under section (g) paragraph (1) of this Act, the head of the disposing agency shall, in accordance with applicable law, disclose to the person to whom the property or facilities will be transferred information possessed by the Agency regarding the environmental restoration, waste management, and environmental compliance activities described in section (1) that relate to the property or facilities. The Agency shall provide such information before entering into the agreement.
(5) For the purposes of granting time extensions under section 10(a), the Director shall give the need for significant environmental remediation to a piece of property more weight than any other factor in determining whether to grant a two-year extension to implement a Board recommendation.
(6) Nothing in this Act shall be construed to modify, alter, or amend the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (42 U.S.C. 9601 et seq.), the National Environmental Policy Act of 1969, or the Solid Waste Disposal Act (42 U.S.C. 6901 et seq.). (h) No provision of law shall be construed as restricting the use of funds for disposing or realigning Federal civilian real property in accordance with an approved recommendation that gains legal force under section 9, except in the case of a provision of law which specifically refers to a particular asset of Federal civilian real property and expressly states that such restriction shall apply to such asset notwithstanding this Act. section 6(g) of this Act containing the recommendations and complete all such recommendations no later than the end of the six-year period beginning on the date on which the Director transmits a report to the Congress pursuant to section 6(g) of this Act containing the recommendations. For recommendations that will take longer than the six-year period due to extenuating circumstances, agencies shall notify OMB as soon as the circumstance presents itself with an estimated time to complete the recommendation. In such cases, the Director may extend the period for completion of the recommendation for a period of up to an additional two years.
(b) In carrying out any recommendations under this part, the agencies may:
(1) acquire such land, construct such replacement facilities, and conduct such advance planning and design as may be required to transfer functions from one location to another;
(2) provide outplacement assistance to civilian employees employed by the agency at a location subject to a recommendation;
(3) carry out activities for the purposes of environmental restoration and mitigation at any such installation; and
(4) reimburse other Federal agencies for actions performed at the request of the Board with respect to any such recommendation.
(c) Specific Authorities.
(1) Notwithstanding any other provisions of the laws that govern the disposal authorities of the Federal agencies, all disposals implemented as a result of a Board recommendation shall be implemented in accordance with sections 2, 3, 6, 9, 10, 11, and 12 of this Act. Where the currently existing disposal authority for an agency is inconsistent with this Act, this Act's provisions control the implementation of a disposal recommended by the Board. To the extent that the disposal authorities are otherwise consistent with this Act, an agency shall implement a recommendation in the Board's report to dispose a property by utilizing its existing disposal authorities, whether it has been delegated disposal authority by the Administrator of the General Services Administration, pursuant to the Federal Property Act, it has an independent disposal authority, or it must work in partnership with the General Services Administration.
(2) In accordance with section 10 of this Act, when implementing a recommendation to consolidate, reconfigure, co-locate, or realign a real property asset, all agencies are authorized to take such action as is necessary to implement the approved recommended actions of the Board. Consistent with sections 6 and 9 of this Act, the Board's report may instruct a Federal agency to utilize the expertise of the General Services Administration in carrying out a recommended consolidation, reconfiguration, co-location, or realignment. Any Federal agency, at its discretion, is also authorized, consistent with existing law and funding, to contract with the General Services Administration for assistance or consultation on implementing a recommendation to consolidate, reconfigure, co-locate, or realign a real property asset.
(3) The identification of any Federal civilian real property as an asset to be disposed, consolidated, reconfigured, or otherwise realigned in a report published by the Board temporarily freezes any transaction with respect to that property that would prevent a recommendation from being carried out within the end of the statutory deadline for Congress to consider the Board's report, whether exercised by the agency maintaining custody or control of the property, or an agency acting on behalf of that custodial agency. All such transactions shall remain frozen until the recommended action on the identified property is disapproved by Congress pursuant to section 9(e) of this Act, is withheld from transmission to Congress by the OMB Director, or is not disapproved by Congress pursuant to section 9(e) of this Act. In the event of disapproval or withholding, all such transactions are unfrozen and the agency maintaining custody or control over the property may resume its management of the property unrestricted. Otherwise, consistent with sections 9 and 10 of this Act, an agency shall implement the recommended action.
(d) For any transaction identified, recommended or commenced as a result of this Act, the Board shall determine whether and to what extent an agency shall implement the transaction notwithstanding any legal priorities or requirements to enter into a transaction to convey a Federal civilian real property for less than fair market value or in a transaction that mandates the exclusion of other market participants.
(e) Any recommendation or commencement of a disposal, consolidation, reconfiguration, co-location, or realignment of civilian real property shall not be subject to-
(1) section 545(b)(8) of title 40, United States Code;
(2) sections 550, 554, and 553 of title 40, United States Code;
(3) section 501 of the McKinney-Vento Homeless Assistance Act (42 U.S.C. 11411);
(4) any section of An Act Authorizing the Transfer of Certain Real Property
for Wildlife, or other Purposes (16 U.S.C. 667b);
(5) section 47151 of title 49, United State Code;
(6) sections 107 and 317 of title 23, United States Code;
(7) section 1304(b) of title 40, United States Code;
(8) (9) any other provision of law authorizing the conveyance of real property owned by the Federal Government for no consideration; and
(10) any congressional notification requirement other than that in section 545 of title 40, United States Code.
(f) Public Benefit.
(1) Consistent with section 6(f) of this Act, the Board shall submit to the Secretary of Housing and Urban Development (Secretary of HUD), on the same day it submits its report to the Director of the OMB, all known information on the buildings or properties that are listed in the separate list of properties intended for conveyance under a public benefit conveyance program authorized by a provision of law enumerated in section 10(e) of this Act. Within 60 calendar days the Secretary of HUD must report to the Board on the suitability of all the properties on this list for use as a property benefitting the mission of assistance to the homeless.
(2) Within 90 calendar days of the Board's first submission of its report to the Director of the OMB, any representatives of the homeless proposing interest in the use of property that the Board has determined should be conveyed under any of the public benefits authorized by a provision of law enumerated in section 10(e) of this Act, may submit a notice of interest containing the following to the Board and to the Secretary of HUD:
a. a description of the homeless assistance program that the representative proposes to carry out at the installation;
b. an assessment of the need for the program;
c. a description of the extent to which the program is or will be coordinated in the communities in the vicinity of the property with the local Continuum of Care, as defined by Section 1301 of the Helping Families Save Their Homes Act of 2009;
d. a description of grants currently funded through the McKinney-Vento homeless assistance programs;
e. a description of the buildings and property that are necessary in order to carry out the program;
f. a description of the financial plan, the organization, and the organizational capacity of the representative to carry out the program;
g. an assessment of the time required in order to commence carrying out the program; and
15
h. The ability of the provider to financially and clinically support a homeless use.
(3) The Secretary of HUD shall review and certify submissions from
representatives of the homeless and submit to the Board an assessment of the validity and merits of the notice of interest within 120 calendar days from the date the Board submits its report to the OMB Director. In the case where more than one notice of interest is entered for a property, the Secretary shall indicate to the Board which planned use of the property for the homeless has more merit.
(4) Within 90 calendar days of the Board's submission to the Director of the OMB and public release of the Board's report, any parties proposing interest, for a use that is not homeless assistance, in the property that the Board has listed pursuant to section 6(f)(2) of this Act, may submit a notice of interest to the Board and to the Federal agency that is otherwise tasked by law to review applications for the statutory public benefit conveyance program under which the party is applying. The notice of interest must contain the information otherwise required in an application under the law creating the conveyance program and must be for a program authorized by a provision of law listed in section 10(e) of this Act.
(5) Federal agencies tasked with reviewing applications for public benefit conveyance programs, that receive notices of interest with information pertaining to the certification of the validity of a proposed public benefit conveyance that is not for homeless assistance and is authorized by a provision of law enumerated in section 10(e) of this Act, shall review and certify submissions from parties proposing such future use for the property and submit to the Board an assessment of the validity and merits of the information contained in the notice of interest within 120 calendar days from the date the Board submits its report to the OMB Director. In the case where more than one notice of interest is entered for a property, the head of the reviewing agency shall indicate to the Board which planned use of the property has more merit.
(6) To give disposing agencies instruction as to the final disposition of the properties in its inventory that have been recommended for a public benefit conveyance program, subject to section 9 of this Act, the Board shall compile all assessments resulting from submitted notices of interest, for any of the public benefit conveyance programs authorized by a provision of law enumerated in section 10(e) of this Act, that have been submitted to it on the list of properties that the Board deemed suitable for conveyance under a public benefit program, and shall forward them to the agencies that maintain custody and control over the civilian real properties to be conveyed.
(7) In the event a property reviewed by HUD is found to be fit for use by the homeless and HUD has identified a representative of the homeless whose notice of interest is certified, or, in the event of more than one notice of interest on the
16
property, whose notice of interest is deemed to have the most merit by HUD, the agency maintaining custody or control of the property, in accordance with section 10 of this Act, shall commence conveyance of the property to that representative of the homeless, subject to section 9 of this Act. In the event a reviewed property is found to be unfit for use by the homeless, or there is no identified notice of interest on the property by a representative of the homeless, the disposing agency maintaining custody or control shall then look to whether there are any parties that have expressed interest in the property for one of those uses authorized by a provision of law enumerated in section 10(e) of this Act that are not homeless assistance and whether any Federal reviewing agency has certified one of those uses. If so, the disposing agency maintaining custody or control of the property shall commence conveyance of the property to that party that proposed the certified use, subject to section 9 of this Act. In the event that there is more than one party that has expressed interest in the property in this manner, the disposing agency maintaining custody or control shall have the discretion to choose among them, but shall look to where the property will be used for its highest and best use.
(8) In the event a property does not qualify for, or there is no interest in a property reviewed for, one of those uses authorized by a provision of law enumerated in section 10(e) of this Act, the disposing agency maintaining custody or control shall have the discretion to choose among any other remaining ways to implement a disposition of the property, subject to section 9 of this Act.
(9) An agency shall convey property under this sub-section utilizing the same disposal authorities as in section 10(c)(1) of this Act.
(g) Environmental Considerations.
(1) (A) When implementing the recommended actions for properties that have been identified in the Board's report, as specified in section 6(f), and subject to paragraph (2) of this subsection and in compliance with the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (42 U.S.C. 9601 et seq), including section 120(h) thereof (42 U.S.C. 9620(h)), Federal agencies may enter into an agreement to transfer by deed real property with any person.
(B) The head of the disposing agency may require any additional terms and conditions in connection with an agreement authorized by subparagraph (A) as the head of the disposing agency considers appropriate to protect the interests of the United States. Such additional terms and conditions shall not affect or diminish any rights or obligations of the federal agencies under CERCLA section 120(h) (including, without limitation, the requirements of CERCLA section 120(h)(3)(A) and section CERCLA 120(h)(3)(C)(iv)).
(2) A transfer of real property or facilities may be made under paragraph (1) only if the head of the disposing agency certifies to the Board and Congress that:
17
(A) the costs of all environmental restoration, waste management, and environmental compliance activities otherwise to be paid by the disposing agency with respect to the property or facilities are equal to or greater than the fair market value of the property or facilities to be transferred, as determined by the head of the disposing agency; or
(B) if such costs are lower than the fair market value of the property or facilities, the recipient of the property or facilities agrees to pay the difference between the fair market value and such costs.
(3) In the case of property covered by a certification under paragraph 2(A), the disposing agency may pay the recipient of such property or facilities an amount equal to the lesser of:
(A) the amount by which the costs incurred by the recipient of such property or facilities for all environmental restoration, waste management, and environmental compliance activities with respect to such property or facilities exceed the fair market value of such property or facilities as specified in such certification; or
(B) the amount by which the costs (as determined by the head of the disposing agency) that would otherwise have been incurred by the Secretary for such restoration, waste management, and environmental compliance activities with respect to such property or facilities exceed the fair market value of such property or facilities as so specified.
(4) As part of an agreement under section (g) paragraph (1) of this Act, the head of the disposing agency shall, in accordance with applicable law, disclose to the person to whom the property or facilities will be transferred information possessed by the Agency regarding the environmental restoration, waste management, and environmental compliance activities described in section (1) that relate to the property or facilities. The Agency shall provide such information before entering into the agreement.
(5) For the purposes of granting time extensions under section 10(a), the Director shall give the need for significant environmental remediation to a piece of property more weight than any other factor in determining whether to grant a two-year extension to implement a Board recommendation.
(6) Nothing in this Act shall be construed to modify, alter, or amend the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (42 U.S.C. 9601 et seq.), the National Environmental Policy Act of 1969, or the Solid Waste Disposal Act (42 U.S.C. 6901 et seq.). (h) No provision of law shall be construed as restricting the use of funds for disposing or realigning Federal civilian real property in accordance with an approved recommendation that gains legal force under section 9, except in the case of a provision of law which specifically refers to a particular asset of Federal civilian real property and expressly states that such restriction shall apply to such asset notwithstanding this Act. transfer, from the gross proceeds to an executive agency, amounts to cover the necessary costs associated with the disposal of property.
(3) Net proceeds (which are gross proceeds received from the disposal of any civilian real property pursuant to a recommendation of the Board, less the amounts transferred from this account under section 11(b)(2)(A) and (c)(2) of this Act), shall be divided between the General Fund of the Treasury, Federal executive agencies (for the purpose of real property management reinvestment), and the Asset Proceeds and Space Management Fund. On an annual basis, the OMB Director shall determine how the net proceeds shall be distributed, through transfer, between the General Fund, Federal agencies, and the Asset Proceeds and Space Management Fund, but in no case shall the General Fund receive less than sixty percent of the net proceeds. In support of these duties, the Board, with the consent of the OMB Director, may transfer, from the Space Management Fund, to a Federal agency or the U.S. Postal Service, amounts:
(A) to cover the necessary costs associated with-
(i) consolidation, co-location, and reconfiguration actions;
(ii) other actions taken to otherwise realize operational efficiencies, including but not limited to such actions as environmental restoration; and
(B) for outplacement assistance to Federal employees who work at a Federal property that is affected by actions taken under this section, and whose employment would be terminated as a result of such disposal, consolidation, or other realignment.
(4) The amounts transferred pursuant to section 11(c)(3)(A)-(B) under this sub-section must be obligated by the recipient agency within three years of the transfer. Any amounts that are not obligated within three years shall be transferred back to the Asset Proceeds and Space Management Fund. SEC.13. EXECUTIVE DIRECTOR
(a) The Board shall appoint an Executive Director.
(b) For the purposes of this Act, the Board may appoint an Executive Director without regard to the provisions of title 5, United States Code, governing appointments in the competitive service.
(c) Consistent with 5 U.S.C. 3132(a)(2), the Executive Director shall be paid at the rate of basic pay payable for level IV of the Executive Schedule under section 5315 of title 5, United States Code, except that an individual so appointed may not receive pay outside of the pay range of the Senior Executive Service. SEC.14. STAFF
(a) Subject to paragraph (b), the Executive Director, with the approval of the
Board, may appoint and fix the pay of additional personnel.
(b) The Executive Director may make such appointments without regard to the
provisions of title 5, United States Code, governing appointments in the competitive service, and any personnel so appointed may be paid without regard to the provisions of chapter 51 and subchapter III of chapter 53 of that title relating to classification and General Schedule pay rates, except that an individual so appointed may not receive pay in excess of the maximum rate of basic pay for GS-15 under section 5332 of title 5, United States Code.
(c) Upon request of the Executive Director, the head of any Federal department or
agency may detail any of the personnel of that department or agency to the Board to assist the Board in carrying out its duties under this part. The Executive Director, with the approval of the Board, is authorized to request both reimbursable and non-reimbursable detailees.
SEC.15. CONTRACTING AUTHORITY. (a) The Board may procure by contract, to the extent funds are available, the temporary
or intermittent services of experts or consultants pursuant to section 3109 of title 5, United
States Code.
(b) The Board may lease space and acquire personal property. SEC.16. TERMINATION.
The Board shall cease operations and terminate 12 years from the date of the enactment of this Act. This Act shall expire 180 calendar days after that date.
SEC. 17. PRECLUSION OF JUDICIAL REVIEW.
The following actions shall not be subject to judicial review:
(a) Actions of the Board under Section 6 of this Act.
(b) Actions of the Director of OMB under Section 6(g) of this Act.
(c) Actions of the Board, the Secretary of HUD, and Federal agencies under Section 10(f) of this Act.
Cyber-attackers hit another Department of Energy research laboratory last week, forcing IT managers to shut down all of the facility's computer links to the outside world to try to contain the damage.
Essential computer services remain offline nearly a week after a cyber-attackers hit another Department of Energy laboratory, this time in the state of Washington.
The Energy Department's Pacific Northwest National Laboratory in Washington shut down Internet access and email services following a sophisticated cyber-attack, according to a July 5 post on the facility's Twitter account . Officials became aware of the cyber-attack on July 1, Greg Koller, the lab's spokesperson, told the Associated Press.
Officials shut down most of the computer services for employees, including email, SharePoint, wireless network and Internet access, immediately after discovering the breach while the IT staff worked through the holiday weekend to restore services. The lab also blocked all external attempts to reach the Website and blocked all incoming email requests.
“Full access will be restored once we can repel further attacks,” according to the Twitter post.
As of July 6, email and the laboratory Website remained inaccessible. The Website displayed a message that it was undergoing system maintenance. Internal email was apparently restored July 5, according to local CBS affiliate KEPR . Full access is not expected to be restored until the end of the week.
Koller could not immediately be reached for additional details on the incident. A pre-recorded message on his voicemail described the incident as a "sophisticated cyber-attack” against the laboratory.
The attack on PNNL appears to be part of a larger attack occurring around the same time that included another national laboratory in Virginia and the Ohio headquarters of Battelle Memorial Institute, which operates PNNL, KEPR reported. It doesn't appear as if any classified information was compromised at this time, although the cyber-security team is still investigating.
The PNNL breach is just the latest in a string of attacks targeting government agencies and contractors. The Oak Ridge National Laboratory in Tennessee shut down its email systems and Internet access on April 15 after a spear-phishing attack. When two employees clicked on a link in a malicious email, they were directed to a Website that exploited a remote code execution vulnerability in Internet Explorer, which Microsoft had patched days earlier in its Patch Tuesday update. The Oak Ridge attackers were after sensitive information, Lab officials had said at the time.
Shortly after the Oak Ridge breach, other national labs and government agencies reported an increase in phishing attacks trying to compromise their systems.
The latest round of attacks on national laboratories caught the attention of Rafal Los , enterprise security evangelist for HP Software. While there isn't a lot of information regarding the attacks themselves, it is clear attackers entered the network and some data was breached or stolen, Los wrote on his blog. The fact that email and Internet services were shut down seem suggestive of the fact that PNNL was hit by a spear-phishing attack similar to what happened at Oak Ridge.
Los said the attacks are most likely targeting Energy Sciences Network (ESnet), a high-speed, high-resiliency network that inter-connects major Department of Energy laboratories including Oak Ridge, PNNL, FermiLab and the Y12 National Security Complex.
“It's not too far of a stretch to think that the attackers, whomever they are, are likely after something within the DOE network - something probably classified,” Los said. Attackers were after credentials and network access, and it's likely they have managed to harvest some through these attacks, Los speculated, noting that attackers used SQL injection to obtain several login credentials from a Y12 National Security Website in June.
PNNL easily fends off four million cyber-attacks a day, most of which are simple to detect and defend against, but this attack was more serious than usual, Koller told local AM radio station KONA.
"These are well funded, very persistent individuals looking for intellectual property or national security secrets and so they're very dedicated to trying to attack," Jerry Johnson, PNNL's chief information officer, told KEPRTV.
PNNL is a research and development facility working in areas of nuclear science, information analysis and cyber-security.
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EPA Releases New Online Training Module on Water Quality Standards
A new online training module intended to encourage and facilitate public involvement in the U.S. Environmental Protection Agency's (EPA) Water Quality Standards program is now available on EPA's website. "How to Develop and Implement Public Involvement Programs and Practices" outlines the requirements of public involvement and highlights good practices for creating an effective public participation process in decisions that affect water quality. Links to EPA policy, resources and tools are provided throughout the module and compiled at the end of the presentation for further development of a tailored public involvement process. To experience the new module go to: http://www.epa.gov/waterscience/standards/academy/special/public/player.html
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The Office of Water has redesigned its website to make it easier and faster for you to find the information you need. If you have reached this page by selecting a bookmark that worked previously, it is likely the file has moved to a new location because of our recent redesign.
To navigate to the new, redesigned Office of Water website, click on the home page link or the desired page link below. If the page you are looking for is not listed, click on the Site Map for an overview of the site layout. Alternatively, you may Search the site for specific information. Once you have arrived at the desired page, please reset your bookmark.
By: Frank Miniter | Op-Ed Contributor | 07/07/11 8:05 PM Part three of a three-part series
As we look back on Independence Day it's worth remembering that it took a popular uprising just to get the Bill of Rights included in the U.S. Constitution.
During America's founding period, some Federalist politicians thought a bill of rights would be superfluous, as the scope of the federal government was by definition restricted by the Constitution.
James Madison said as much in Federalist No. 45: "The powers delegated by the ... Constitution to the federal government are few and defined," while "[t]hose which are to remain in the State governments are numerous and indefinite."
Some of the Founding Fathers, however, wanted their individual and state rights etched in constitutional stone. They feared the federal government might break free from its constitution and run amok over the peoples' liberties and the states' rights.
Anti-Federalists, such as George Mason, Patrick Henry and Samuel Adams, were so bothered by the Constitution's lack of a bill of rights that they opposed ratification of the Constitution unless one was added.
Their argument was so compelling to the American public and to state politicians that it nearly prevented the ratification of the Constitution.
In Massachusetts, for example, the Constitution was only ratified by the state legislature after two leading Anti-Federalists, Samuel Adams and John Hancock, negotiated a compromise that permitted state politicians to recommend amendments to the Constitution that would be sent with the ratification papers to Congress.
These recommendations would be used, Madison promised, by the first U.S. Congress to assemble a bill of rights the states could then ratify. The Massachusetts convention subsequently voted to ratify the Constitution; however, even with the compromise, it barely passed by a vote of 187-168.
Madison then kept his promise. The first U.S. Congress wrote and passed 12 amendments and sent them to the states for ratification. The states ratified 10 of the 12 amendments. These 10 amendments became known as the U.S. Bill of Rights.
Today, however, our out-of-control government has increasingly been able to find ways to ignore, obscure, or even to override these constitutional limitations.
One fundamental way the federal government has been able to expand its power, despite the Tenth Amendment, has been with the Constitution's Commerce Clause ("The Congress shall have Power ... To regulate Commerce with foreign Nations, and among the several States ...").
This clause's biggest expansion came in Wickard v. Filburn (1942) when the Supreme Court ruled that the federal government could regulate the growing of a farmer's wheat even when the wheat is only used for "home consumption."
Now the Obama administration wants to use the Commerce Clause, via Obamacare's "Minimum Essential Coverage Provision," to mandate that everyone buy federally approved health insurance.
If the Commerce Clause is expanded further by allowing the government to mandate that Americans purchase a product, then the government would have the power to dictate any purchase, for example, such as they we all buy a Chevy Volt.
This is an unconstitutional power grab. As Senior United States District Judge Roger Vinson pointed out when he ruled Obamacare unconstitutional in January 2011:
"It is difficult to imagine that a nation which began, at least in part, as the result of opposition to a British mandate giving the East India Company a monopoly and imposing a nominal tax on all tea sold in America would have set out to create a government with the power to force people to buy tea in the first place."
Benjamin Franklin saw this fundamental fight coming. This is why, as he walked out of the Constitutional Convention in Philadelphia in 1787 and was asked, "What have we got -- a republic or a monarchy?" he replied, "A republic, if you can keep it."
To keep our republic, we need to save the Bill of Rights.
Frank Miniter is the executive editor of American Hunter. This is third in a three-part series adapted from "Saving the Bill of Rights: Exposing the Left's Campaign to Destroy American Exceptionalism" (Regnery, 2011). Reprinted with permission by Regnery Publishing Inc.
While declining to remand the action to state court, a District Court in California held that if a plaintiff does not limit his claim to “all possible forms of relief” but only to “damages,” the preponderance of the evidence standard applies to establish the amount in controversy.
The plaintiff brought a putative class action on behalf of Wells Fargo Bank branch managers who were allegedly misclassified as ‘exempt' employees for purposes of the payment of overtime compensation, and sought unpaid overtime wages, meal and rest break premium pay, waiting time penalties, wage statement penalties and attorneys' fees for various violations of the California Labor Code and the UCL.
As related to the amount in controversy, the plaintiff stated that the total “damages” for the entire case did not exceed $5 million. The plaintiff, however, did not allege a total amount in controversy.
The defendant removed this action to federal district court under CAFA. The plaintiff moved to remand arguing that Wells Fargo failed to meet the amount in controversy requirement for CAFA removal.
The District Court, however, denied the motion.
At the very outset, the Court discussed the applicable burdens of proof regarding CAFA's amount in controversy requirement. It noted, in Sanchez v. Monumental Life Ins. Co. , 102 F.3d 398, 404 (9th Cir. 1996), the Ninth Circuit identified three different burdens of proof which might be placed on a removing defendant concerning the amount in controversy requirement, depending on the allegations in the complaint.
In subsequent decisions in Abrego Abrego v. Dow Chemical Co. , 443 F.3d 676, 683 (9th Cir. 2006), Lowdermilk v. U.S. Bank National Association , 479 F.3d 994, 1000 (9th Cir. 2007) and Guglielmino v. McKee Foods Corp. , 506 F.3d 696, 697 (9th Cir. 2007), the Ninth Circuit applied these burdens of proof to cases under CAFA. ( Editors' Note: See the CAFA Law Blog analysis of Abrego Abrego posted on May 25, 2006, the CAFA Law Blog analysis of Lowdermilk posted on July 30, 2007, and the CAFA Law Blog analysis of Guglielmino posted on November 6, 2007).
First, when a complaint alleges on its face an amount in controversy sufficient to meet the federal jurisdictional threshold, such requirement is presumptively satisfied unless it appears to a “legal certainty” that the plaintiff cannot actually recover that amount.
Second, when it is unclear or ambiguous from the face of a complaint whether the requisite amount in controversy is pled, “the removing defendant bears the burden of establishing, by a ‘preponderance of the evidence,' that the amount in controversy exceeds the jurisdictional amount”.
Third, Lowdermilk heldthat when a state court complaint affirmatively alleges that the amount in controversy is less than the jurisdictional threshold, the “party seeking removal must prove with ‘legal certainty' that CAFA's jurisdictional amount is met.”
Finally, in Guglielmino , the Ninth Circuit addressed the proper burden of proof to be borne by the removing defendant when the complaint alleges damages less than the jurisdictional threshold for diversity cases but does not specify a total amount in controversy. In Lowdermilk , the complaint referred to “aggregate total of claims' to include everything sought, including attorneys' fees.” Whereas, in Guglielmino ,the complaint did not use the word “claim” but instead referenced only “damages and injunctive relief,” within neither of which attorneys' fees and other reliefs comfortably fit. The key distinction, therefore, between Guglielmino and Lowdermilk was that the plaintiffs in Guglielmino did not mention the total amount in controversy, and sought payment which would be outside the realm of damages which could, even assessed by a preponderance of the evidence standard, bring the total amount in controversy to beyond the jurisdictional minimum . The Guglielmino court thus held that the uncertainty which is inherent in the plaintiffs' Prayer for Relief made it to apply the “preponderance of the evidence” burden of proof to the removing defendant.
Here, as in Guglielmino , the plaintiff's Prayer for Relief: (1) failed to state the total dollar amount in controversy for all claims alleged and all remedies sought; and (2) sought not only compensatory damages, but also restitution, statutory penalties, attorneys' fees, and injunctive relief--elements of the total amount in controversy that were not clearly included as part of the less than $5 million in “damages” sought. Because the plaintiff had not limited his claim to “all possible forms of relief” but only to “damages,” the Court applied Guglielmino 's preponderance of the evidence standard.
The Court explained that under the “preponderance of the evidence” standard, a defendant must show that it is “more likely than not” that the jurisdictional threshold is met. This “burden is not daunting, as courts recognize that under this standard, a removing defendant is not obligated to research, state, and prove the plaintiffs' claims for damages.”
The Court observed that in its notice of removal, the defendant calculated the amount in controversy based on the plaintiff's allegations in the complaint and evidence regarding the putative class members. To support these calculations, the defendant supplied a declaration from its compensation manager, who based on his personal knowledge and review of relevant business records, set forth the estimated number of putative class members, their average hourly pay, and other relevant information.
Given that the defendant's burden was “not daunting” and was simply to prove “more likely than not” that the damages would exceed $5 million, the Court found that the defendant had met its burden of proving the requisite amount in controversy by a preponderance of the evidence. The Court maintained that a declaration or affidavit may satisfy the burden, and the defendant need not produce extensive business records to prove or disprove liability and/or damages with respect to plaintiff or the putative class members.
Specifically, the Court stated that as to the plaintiff's claim for unpaid overtime compensation, the plaintiff alleged that he and the putative class members routinely worked in excess of forty hours per week and/or eight hours per day, and that “statistically, one hundred percent of the class members were paid on a salary basis with no overtime compensation.” Based on this allegation of “consistent” overtime work, the defendant estimated one hour of unpaid overtime compensation per week for each putative class member and arrived at a figure of $812,436 for the class period. Even if the defendant's estimate was halved to one hour of unpaid overtime every two weeks, the total amount in controversy easily exceed $5 million when the plaintiff's other claims and attorneys' fees were included.
Accordingly, the Court declined to remand the action to state court.
Ninth Circuit Finds Jurisdiction Over Foreign Corporation Based On Its Subsidiary's Contacts in the United States
By Bram Hanono In the recent case of Bauman v. DaimlerChrysler Corp. (No. 07-15386 (9th Cir. May 18, 2011)), the Ninth Circuit expanded the use of "agency theory" to impose personal jurisdiction over a foreign corporation doing business in the U.S. solely through its U.S. subsidiary. The court found jurisdiction based on the subsidiary's contacts within California, even though the lawsuit was initiated by non-U.S. residents regarding acts allegedly committed in a foreign country that had nothing to do with the subsidiary's contacts.
If this decision stands, it has the potential to affect any foreign company doing business in the U.S. through subsidiaries, even if those subsidiaries have nothing to do with the company's alleged actions giving rise to the lawsuit.
In the decision, the Ninth Circuit held that personal jurisdiction existed over DaimlerChrysler AG (DCAG), a German company, based in part on its right to maintain control over Mercedes-Benz USA LLC (MBUSA), its wholly owned U.S. subsidiary. The court held that DCAG could be haled into court in California due to MBUSA's contacts within California.
Please see full article below for more information.
On June 22 the House Transportation and Infrastructure Committee voted 35-19 to approve the “ Clean Water Cooperative Federalism Act ”, H.R. 2018 . In a prior letter to the chairs of the Committee environmental organizations wrote ” H.R. 2018 would limit the federal government's ability to compel states to effectively implement or make necessary improvements to their water quality standards to deal with modern pollution challenges. In essence, this bill would deprive EPA of the tool it used to restore Lake Erie and is now being used to clean up the Florida Everglades, Chesapeake Bay and other waters. The bill would also block EPA from objecting to individual permits that fail to comply with water quality standards .”
In voting for H.R. 2018, Rep. Altmire joined the Republican majority along with Minority Committee Chair Rahall (D-WV) and three other Democrats.
APPEAL FROM A JUDGMENT OR ORDER OF A DISTRICT COURT
JOHN HUTCHENS ANNOUNCES BID FOR U.S. SENATOR FROM CALIFORNIA
We take water for granted. And why not? We turn a tap and out it comes. But that's going to have to change, says author Alex Prud'homme . As he explains in a new book, The Ripple Effect, the basic problem is this: the quantity of water in the world is finite, but demand is everywhere on the rise. As oil was in the 20th century – the key resource, a focus of tension, even conflict – so water will be of the 21st, as states, countries, and industries compete over the ever-more-precious resource. So we need to figure out how to use it more sustainably. But that's not all. In the United States fresh water is under threat from new kinds of barely understood pollutants, from pesticides to pharmaceuticals, and from a last-century infrastructure of pipes, dams, levees, sewage plants that urgently needs upgrading.
Press Release 11-134
NSF and USAID Jointly Launch International, Interagency PEER Program to Advance Science Collaboration With the Developing World
Feinstein Proposes Plan to Bring Some Relief to National Debt
Brent Carmichael loads seed corn into a planter in a field he farms with his father May 8, 2007 near Rochelle, Illinois. Photo: Scott Olson/Getty Images
California Senator Diane Feinstein is part of a new deal to ease the national debt, by ending a tax credit for states that produce ethanol-based fuel.
Feinstein, alongside Senators Amy Klobuchar, D-Minn., and John Thune, R-S.D., have proposed diverting $1.3 billion of the money remaining for the tax break this year to pay for debt reduction. And $668 million of the remaining funds will be used for incentives for the ethanol and biofuels industries.
If accepted by the White House and the House of Representatives, the compromise could provide a quick path to end the ethanol credit as part of budget negotiations between Congress and the White House. The Senate voted last month on an amendment to end the $5 billion subsidy, but the fate of the legislation to which it's attached — a bill renewing a federal economic development program — is uncertain.
The ethanol industry once enjoyed strong support from Congress, but it has suffered as lawmakers have looked for ways to cut budgets and have started to question why the industry still needs government help after three decades of production. The Senate vote last month signaled that the tax credit, scheduled to expire at the end of the year, was probably doomed.
The compromise between the three senators would end the tax credit at the end of this month and would allow the ethanol industry to salvage at least some of the federal subsidy money.
Critics say ethanol subsidies are no longer needed for an industry that is already supported by a mandate from Congress that requires refiners to blend 36 billion gallons of biofuels into auto fuel by 2022.
As that criticism has become louder, Klobuchar and other farm-state members have worked with the industry to find alternate ways to spur production without spending as much taxpayer money.
"The better thing to do is to end it now and go on a more prudent course going forward," said Klobuchar.
The $668 million in incentives will go to help gas stations deliver the fuel to consumers, to the smallest producers who may be hurt the most by the elimination of the tax credit, and to producers trying to make ethanol from materials other than corn.
Ethanol industry groups praised the agreement Thursday, signaling it is the best they can do as Washington has trained a skeptical eye on their business. Just last year, many in the industry were hoping the full $5 billion tax break could be diverted for industry incentives.
"This proposal will benefit consumers at the pump, reduce our dependence on foreign oil by investing in next-generation biofuels, and make a significant contribution to reducing our nation's budget deficit," said Tom Buis, the head of industry group Growth Energy.
The National Science Board (NSB) is seeking nominations for candidates to serve on the NSB for the years 2012-2018. All nominations will be given full consideration; the President nominates candidates who must be confirmed by the U.S. Senate to serve on the Board. Nominations are open through August 12, 2011.
The NSB is responsible for assembling, and transmitting to the White House, recommendations for appointment of new NSB Members. In its review of candidates, the Board applies the ...
Volcanism and Evolution
Volcanism and Evolution
Preponderance Of The Evidence Standard Is Not Daunting
While declining to remand the action to state court, a District Court in California held that if a plaintiff does not limit his claim to “all possible forms of relief” but only to “damages,” the preponderance of the evidence standard applies to establish the amount in controversy.
The plaintiff brought a putative class action on behalf of Wells Fargo Bank branch managers who were allegedly misclassified as ‘exempt' employees for purposes of the payment of overtime compensation, and sought unpaid overtime wages, meal and rest break premium pay, waiting time penalties, wage statement penalties and attorneys' fees for various violations of the California Labor Code and the UCL.
As related to the amount in controversy, the plaintiff stated that the total “damages” for the entire case did not exceed $5 million. The plaintiff, however, did not allege a total amount in controversy.
The defendant removed this action to federal district court under CAFA. The plaintiff moved to remand arguing that Wells Fargo failed to meet the amount in controversy requirement for CAFA removal.
The District Court, however, denied the motion.
At the very outset, the Court discussed the applicable burdens of proof regarding CAFA's amount in controversy requirement. It noted, in Sanchez v. Monumental Life Ins. Co. , 102 F.3d 398, 404 (9th Cir. 1996), the Ninth Circuit identified three different burdens of proof which might be placed on a removing defendant concerning the amount in controversy requirement, depending on the allegations in the complaint.
In subsequent decisions in Abrego Abrego v. Dow Chemical Co. , 443 F.3d 676, 683 (9th Cir. 2006), Lowdermilk v. U.S. Bank National Association , 479 F.3d 994, 1000 (9th Cir. 2007) and Guglielmino v. McKee Foods Corp. , 506 F.3d 696, 697 (9th Cir. 2007), the Ninth Circuit applied these burdens of proof to cases under CAFA. ( Editors' Note: See the CAFA Law Blog analysis of Abrego Abrego posted on May 25, 2006, the CAFA Law Blog analysis of Lowdermilk posted on July 30, 2007, and the CAFA Law Blog analysis of Guglielmino posted on November 6, 2007).
First, when a complaint alleges on its face an amount in controversy sufficient to meet the federal jurisdictional threshold, such requirement is presumptively satisfied unless it appears to a “legal certainty” that the plaintiff cannot actually recover that amount.
Second, when it is unclear or ambiguous from the face of a complaint whether the requisite amount in controversy is pled, “the removing defendant bears the burden of establishing, by a ‘preponderance of the evidence,' that the amount in controversy exceeds the jurisdictional amount”.
Third, Lowdermilk heldthat when a state court complaint affirmatively alleges that the amount in controversy is less than the jurisdictional threshold, the “party seeking removal must prove with ‘legal certainty' that CAFA's jurisdictional amount is met.”
Finally, in Guglielmino , the Ninth Circuit addressed the proper burden of proof to be borne by the removing defendant when the complaint alleges damages less than the jurisdictional threshold for diversity cases but does not specify a total amount in controversy. In Lowdermilk , the complaint referred to “aggregate total of claims' to include everything sought, including attorneys' fees.” Whereas, in Guglielmino ,the complaint did not use the word “claim” but instead referenced only “damages and injunctive relief,” within neither of which attorneys' fees and other reliefs comfortably fit. The key distinction, therefore, between Guglielmino and Lowdermilk was that the plaintiffs in Guglielmino did not mention the total amount in controversy, and sought payment which would be outside the realm of damages which could, even assessed by a preponderance of the evidence standard, bring the total amount in controversy to beyond the jurisdictional minimum . The Guglielmino court thus held that the uncertainty which is inherent in the plaintiffs' Prayer for Relief made it to apply the “preponderance of the evidence” burden of proof to the removing defendant.
Here, as in Guglielmino , the plaintiff's Prayer for Relief: (1) failed to state the total dollar amount in controversy for all claims alleged and all remedies sought; and (2) sought not only compensatory damages, but also restitution, statutory penalties, attorneys' fees, and injunctive relief--elements of the total amount in controversy that were not clearly included as part of the less than $5 million in “damages” sought. Because the plaintiff had not limited his claim to “all possible forms of relief” but only to “damages,” the Court applied Guglielmino 's preponderance of the evidence standard.
The Court explained that under the “preponderance of the evidence” standard, a defendant must show that it is “more likely than not” that the jurisdictional threshold is met. This “burden is not daunting, as courts recognize that under this standard, a removing defendant is not obligated to research, state, and prove the plaintiffs' claims for damages.”
The Court observed that in its notice of removal, the defendant calculated the amount in controversy based on the plaintiff's allegations in the complaint and evidence regarding the putative class members. To support these calculations, the defendant supplied a declaration from its compensation manager, who based on his personal knowledge and review of relevant business records, set forth the estimated number of putative class members, their average hourly pay, and other relevant information.
Given that the defendant's burden was “not daunting” and was simply to prove “more likely than not” that the damages would exceed $5 million, the Court found that the defendant had met its burden of proving the requisite amount in controversy by a preponderance of the evidence. The Court maintained that a declaration or affidavit may satisfy the burden, and the defendant need not produce extensive business records to prove or disprove liability and/or damages with respect to plaintiff or the putative class members.
Specifically, the Court stated that as to the plaintiff's claim for unpaid overtime compensation, the plaintiff alleged that he and the putative class members routinely worked in excess of forty hours per week and/or eight hours per day, and that “statistically, one hundred percent of the class members were paid on a salary basis with no overtime compensation.” Based on this allegation of “consistent” overtime work, the defendant estimated one hour of unpaid overtime compensation per week for each putative class member and arrived at a figure of $812,436 for the class period. Even if the defendant's estimate was halved to one hour of unpaid overtime every two weeks, the total amount in controversy easily exceed $5 million when the plaintiff's other claims and attorneys' fees were included.
Accordingly, the Court declined to remand the action to state court.
Engineering Education and Centers
Engineering Research Centers (ERC): Partnerships in Transformational Research, Education and Technology - A Focused Call for Nanosystems ERCs (NERCs)
Available Formats: HTML | PDF | TXT
Document Type: Program Announcements & Information View Program Page
Document Number: nsf11537
Document History: Posted: April 8, 2011. Replaces: nsf09545 .
For information on all aspects of the ERC construct, strategic planning and the solicitation in general, contact Lynn Preston ( lpreston@nsf.gov or 703-292-5358), Deborah Jackson ( djackson@nsf.gov or 703-292-7499), Daniel De Kee ( ddekee@nsf.gov or 703-292-8769), or Barbara Kenny ( bkenny@nsf.gov or 703-292-4667).
For pre-college education, Research Experiences for Teachers (RETs), contact Mary Poats ( mpoats@nsf.gov or 703-292-5357) and for Research Experiences for Undergraduates (REUs) contact Esther Bolding ( ebolding@nsf.gov or 703-292-5342).
LOIs and full proposals must be submitted by 5:00 p.m. proposer's local time on the relevant deadline or the proposal will be returned without review.
SYNOPSIS
The National Nanotechnology Initiative (NNI), a federal interagency research and development venture, was launched in FY 2001. Over the last decade, there has been considerable investment in fundamental research - from nanostructured materials to devices and manufacturing processes - that has revealed new phenomena and resulted in a plethora of important advances. At NSF the funding vehicles included individual grants (unsolicited and Nanoscale Exploratory Research - NERs), small teams (Nanoscale Interdisciplinary Research Teams - NIRTs), user networks such as National Nanotechnology Infrastructure Network (NNIN) and the Network for Computational Nanotechnology (NCN), and centers (Nanoscale Science and Engineering Centers - NSECs). In addition, there were other NSF programs that supported research and education activities in nanotechnology. More information can be found at http://www.nsf.gov/nano/ .
At this time, some discoveries are at the phase to explore their integration into nanosystems, thus leading to adoption in applications critical for their commercial use. To enable this integration, the Engineering Research Centers (ERC) program is launching this new competition targeting the Transformational Nanotechnology of Engineered Systems Centers or NanoSystems ERCs (NERCs). These new centers will adopt and follow all the features of Generation-3 (Gen-3) ERCs.
The goal of the Generation Three (Gen-3) Engineering Research Centers (ERC) Program is to create a culture in engineering research and education that links discovery to technological innovation through transformational fundamental and engineered systems research in order to advance technology and produce engineering graduates who will be creative U.S. innovators in a globally competitive economy. These ERCs will be at the forefront as the U.S. competes in the 21st century global economy where R&D resources and engineering talent are internationally distributed. Recognizing that optimizing efficiency and product quality are no longer sufficient for U.S. industry to remain competitive, these ERCs will optimize academic engineering research and education to stimulate increased U.S. innovation in a global context. They will develop this culture that joins discovery and innovation, i.e., an innovation ecosystem. An innovation ecosystem includes the people, institutions, policies, and resources that promote the translation of new ideas into products and processes and services. The innovation ecosystem of Gen-3 ERCs is achieved through a symbiotic relationship between the ERC's researchers, small businesses, larger industrial and practitioner partners, and partner organizations devoted to stimulating entrepreneurship and innovation. In essence this solicitation requires that the efforts be devoted to creating, developing, and enhancing capacities in ERCs from transformational fundamental research to technology commercialization and creating a continuous pipeline in engineering education from middle school to graduate studies.
In order to achieve this, Gen-3 ERCs will:
Advance discovery and build bridges from science-based discovery to technological innovation to realize transformational engineered systems;
Develop a culture in academe that joins research, education, and innovation to create and sustain an innovation ecosystem to enable the ERC's vision;
Provide international opportunities for research and education collaboration that will prepare U.S. engineering graduates for leadership in innovation in a global economy;
Form teams of diverse and talented faculty who will prepare diverse and talented domestic and international graduates to function effectively in a global world where research, design and production efforts cross national borders;
Function with transformational engineering education programs that rest on partnerships with pre-college institutions to attract students to engineering and university departments to strategically impart in engineering graduates the capacity to create and exploit knowledge for technological innovation; and
Build and sustain a culture that links discovery to innovation, the ERC innovation ecosystem, which will include partnerships with members firms/practitioners to strengthen the ERC and streamline technology transfer; translational research partnerships with small firms to accelerate commercialization of high risk ERC advancements; and innovation partnerships with local level organizations to stimulate entrepreneurship and job creation and enable technological innovation.
Some of the documents on this page were created as PDFs
Click here for PDF assistance For more information, please call (202) 395-3993
Mission:
To promote and support first class financial management in the executive branch of the Federal Government.
History:
The Office of Federal Financial Management (OFFM) was created within the Office of Management and Budget (OMB) by the Chief Financial Officers (CFO) Act of 1990 . OFFM, led by the OMB Controller under the direction of the Deputy Director for Management, is responsible for the financial management policy of the Federal Government. OFFM responsibilities include implementing the financial management improvement priorities of the President, establishing government-wide financial management policies of executive agencies, and carrying out the financial management functions of the CFO Act.
Authorized by Title III of the Superfund Amendments and Reauthorization Act (SARA), the Emergency Planning & Community Right-to-Know Act (EPCRA) was enacted by Congress as the national legislation on community safety. This law is designed to help local communities protect public health, safety, and the environment from chemical hazards.
To implement EPCRA, Congress requires each state to appoint a State Emergency Response Commission (SERC). The SERCs are required to divide their states into Emergency Planning Districts and to name a Local Emergency Planning Committee (LEPC) for each district.
Broad representation by fire fighters, health officials, government and media representatives, community groups, industrial facilities, and emergency managers ensures that all necessary elements of the planning process are represented.
(k) Condemnation Under a State's Power of Eminent Domain.
This rule governs an action involving eminent domain under state law. But if state law provides for trying an issue by jury — or for trying the issue of compensation by jury or commission or both — that law governs.
Several federal environmental laws authorize EPA to treat eligible federally-recognized Indian tribe in the same manner as a state for implementing and managing certain environmental programs.
Below is a list of the environmental statutes with tribal eligibility for regulatory program authorizations:
BLUEFIELD — During a meeting with the Bluefield Daily Telegraph editorial board on Thursday, Acting Governor Earl Ray Tomblin said he was “not pleased with the EPA,” and noted that his predecessor, now U.S. Senator Joe Manchin III, D-W.Va., filed a suit against the Environmental Protection Agency claiming that the agency “overstepped its bounds,” Tomblin said.
Earlier in the day on Thursday in Washington, D.C., the House Subcommittee on Water Resources and Environment convened the first of a two-part hearing on the EPA's “regulatory guidance on surface mining” as well as the economic impact of the “increasingly heavy-handed regulatory approach in the Appalachian region,” according to a press release from the House Transportation and Infrastructure Committee.
“Recently, EPA revoked a Section 404 ‘dredge and fill' permit for the Spruce No. 1 Mine in Logan, three years after the permit was issued by the Army Corps of Engineers — in full agreement with EPA,” according to the House committee's press release. “This action has raised serious questions about the extent of EPA's authority, considering that the project was well underway when the permit was revoked.”
According to the press release, the EPA's “unchecked actions will threaten one of every four coal mining jobs in the Appalachian region.” The committee's stated purpose in calling for the hearings is “to receive testimony from state regulators, the mining industry, impacted businesses, economists and EPA on surface mining guidance and the issues surrounding it.” Speakers in the first hearing included Michael Gardner, general counsel of Oxford Resources, Dr. Leonard Peters, secretary of the Kentucky Energy and Environment Cabinet, Teresa Marks, director Arkansas Department of Environmental Quality and Hal Quinn, president, National Mining Association.
“The deliberate and disruptive policies that have slowed and stopped coal mines from receiving permits to open or expand have consequences that reverberate throughout the region,” Quinn was quoted as stating in a NMA press release. “The consequences begin with the coal supply chain and spread to those that benefit from low-cost coal energy.”
According to Quinn's statement, in just two months, the backlog of permits had grown to 235 applications with a full 190 of them already having been considered complete by the Corps of Engineers. The NMA claimed that the EPA's policies prompted the Energy Information Administration to drop productivity projections in Central Appalachian surface mines by as much as 20 percent.
“This represents a substantial regulatory penalty that will erode companies' competitiveness and threaten more coal jobs,” according to Quinn's quote in the NMA press release. He added that coal miners deserve an answer to the question as to “why their own government at times seems to put so much effort into working against them rather than supporting them and what they do for the country.”
U.S. Rep. Nick Rahall, D-W.Va., the ranking Democrat on the committee was quoted in a press release as stating that coal miners are constantly concerned about their jobs. “The people of southern West Virginia love the natural beauty of our land,” Rahall was quoted as stating. “We want clean water and air. But we want jobs too. We do not condone coal companies failing to ensure the safety of their miners and the well-being of the communities in which they operate. That is simply wrong,” Rahall said.
“But it is also wrong for a federal agency to circumvent the law and treat guidance as binding policy, particularly when that policy targets only one industry in only one region of the country,” Rahall was quoted as stating.
Lisa Jackson, administrator of the EPA, Dr. David Sunding, University of California-Berkeley, Reed Hopper, Pacific Legal Foundation, Michael Carey, president of the Ohio Coal Association and Steve Roberts, president of the West Virginia Chamber of Commerce are scheduled to appear at the committee's next hearing on May 11.
Senate Republicans have introduced legislation to abolish the Environmental Protection Agency, established 40 years ago by President Richard Nixon to give Americans clean air and water. The bill, introduced by Sen. Richard Burr (R-NC), would merge the EPA, which enforces environmental laws, with the Department of Energy, which manages nuclear energy and energy research, into one department.
Burr's statement announcing his bill to eliminate the EPA argues that “duplicative functions” can be eliminated, even though the two departments are completely different:
U.S. Senator Richard Burr (R-North Carolina) introduced a bill that would consolidate the Department of Energy and the Environmental Protection Agency into a single, new agency called the Department of Energy and Environment (DOEE). The bill would provide cost savings by combining duplicative functions while improving the administration of energy and environmental policies by ensuring a coordinated approach.
In January, former Republican House Speaker Newt Gingrich proposed abolishing the EPA, and several House Republicans have supported that goal, while making numerous attempts to hamstring limits on industrial polluters.
Burr's bill has fifteen co-sponsors, all of them global warming deniers : Jim DeMint (R-SC), Mike Enzi (R-WY), John Thune (R-SD), John McCain (R-AZ), Dan Coats (R-IN), Richard Shelby (R-AL), John Barrasso (R-WY), Roy Blunt (R-MO), John Boozman (R-AR), Thad Cochran (R-MS), Kay Bailey Hutchison (R-TX), David Vitter (R-LA), Orrin Hatch (R-UT), Ron Johnson (R-WI), Mike Lee (R-UT).
OPM Launches USAJOBSRecruit.gov
New Website Promotes Agency Collaboration on Governmentwide Recruiting Efforts
Washington, DC - The U.S. Office of Personnel Management (OPM) launched USAJOBSRecruit.gov, a one-stop gateway to recruitment resources throughout the Federal Government. President Obama's Hiring Reform Initiative highlights the importance of recruiting and hiring top talent to better serve the American people. USAJOBSRecruit provides tools and guidance, and encourages collaborative development of best practices within the Federal recruiting community in a web-based platform. This new website will help ensure that HR professionals, recruiters, and hiring managers receive accurate and consistent information on recruiting and hiring in the Federal Government.
"USAJOBSRecruit will spur collaboration and innovation, developing and elevating the best strategies for recruiting the best and brightest Americans into government service," said OPM Director John Berry. "This new web-based tool is a cost-effective, sustainable way for agencies to continually improve their recruiting for years to come."
The forums and blogs will serve as an online community where Federal employees with recruiting responsibilities can discuss recruiting challenges and solutions.
USAJOBSRecruit also features:
Information, resources and multi-media learning tools to ensure guidance is readily available to HR professionals, recruiters and hiring officials;
A ‘School Sorter' search tool for recruiters to find the right talents and skills;
The Federal Service Ambassadors Program for Federal employees interested in promoting the exciting careers available in the Federal Government; and
Knowledge sharing in the areas of workforce planning, recruiting strategies, marketing, and effectiveness.
To decide what to put on USAJOBSRecruit, OPM held focus groups of hiring managers and HR practitioners across the nation. The number one need expressed in the focus groups was for an online environment to discuss and share recruitment practices.
- end -
Combating Improper Payments
In FY 2010, improper payments for Federal government programs totaled more than $125 billion, despite a decrease in the government-wide improper payment rate from the previous year. To reverse this unacceptable growth, we need innovative approaches that significantly boost payment accuracy across government programs.
Sec. 1. Short title; table of contents.
Sec. 2. Purpose.
Sec. 3. Definitions.
Sec. 4. Establishment of Civilian Property Realignment Board.
Sec. 5. Board Meetings.
Sec. 6. Board Duties and OMB Review Process.
Sec. 7. Co-location among Postal Service Properties.
Sec. 8. Realignment of Real Property owned or managed by the Bureau of Overseas Building
Operations.
Sec. 9. Congressional Consideration of Board Recommendations.
Sec. 10. Implementation of Board Recommendations by Executive Agencies.
Sec. 11. Authorization of Appropriation and Funding.
Sec. 12. Pay and Travel Expenses.
Sec. 13. Executive Director.
Sec. 14. Staff.
Sec. 15. Contracting Authority.
Sec. 16. Termination.
Sec. 17. Preclusion of Judicial Review.
Sec. 18. Report by the Board to OMB within Two Years.
SEC. 2. PURPOSE.
PURPOSE. The purpose of this Act is to expedite the disposal of unneeded Federal civilian property and realize savings by taking steps to:
(a) create a fair process that will result in the timely disposal and realignment of Federal civilian real property;
TERMINATION: WATER AND WASTEWATER TREATMENT PROJECTS
Corps of Engineers
Water and wastewater treatment projects, often referred to as "environmental infrastructure" projects,
are outside the Corps of Engineers' main mission areas of commercial navigation, flood and storm damage
reduction, and significant aquatic ecosystem restoration. Therefore, as in past years the Budget does not
include funding for these projects, but rather redirects these resources to other, higher-performing projects
that are within the Corps' main missions.
Funding Summary
(In millions of dollars)
. 2010 Enacted 2012 Request 2012 Change from 2010
Budget Authority........................................................................................................................................ 129 0 -129
Justification
In 2010, the Congress directed funding to water and wastewater treatment projects in the Corps' budget
even though these projects are outside of the Corps' main mission areas. Since 1992, the Congress has
authorized approximately 450 sewage and wastewater treatment projects and has directed hundreds of
millions of dollars toward them. The Corps does not assess the economic and environmental costs and
benefits of these water and wastewater treatment projects and, therefore, has no basis to determine the
value of these projects to the Nation. Providing funding in the Corps of Engineers' budget for environmental
infrastructure projects is not cost effective and duplicates funding for these types of projects in other Federal
agencies, including the Environmental Protection Agency and the Department of Agriculture. Congressional
funding for these projects through the Corps bypasses those agencies' processes for setting funding priorities.
The Budget continues to propose no funding for these types of projects for the Corps.
TERMINATION: WATER RESOURCES RESEARCH ACT PROGRAM
Department of the Interior
The Administration proposes to eliminate Geological Survey (USGS) grants to 54 Water Resources Research
Institutes, as there is not a Federal need or a clear Federal responsibility for this research.
Funding Summary
(In millions of dollars)
. 2010 Enacted 2012 Request 2012 Change from 2010
Budget Authority........................................................................................................................................ 7 0 -7
Justification
Each State, as well as the District of Columbia, Puerto Rico, the U.S. Virgin Islands and Guam, operates
a Water Resources Research Institute at their land grant institute to conduct applied research on water
quality and availability, as well as drought and flood hazards at the local scale. This research, however, is
not a high priority for USGS, which is responsible for studying water issues across the Nation. As a Federal
science bureau, USGS monitors surface water through the nationwide network of stream gages, assesses
water quality through the National Water Quality Assessment, and studies and models groundwater quality
and availability. These programs at the regional and national scales are used by stakeholders across the
country and take precedent over grants that do not address national needs.
TERMINATION: WATERSHED AND FLOOD PREVENTION PROGRAM
Department of Agriculture
The Administration proposes to terminate the Watershed and Flood Prevention Operations program.
The Congress has provided funding entirely to specific projects without any merit-based criteria, such as
cost-effectiveness.
Funding Summary
(In millions of dollars)
. 2010 Enacted 2012 Request 2012 Change from 2010
Budget Authority........................................................................................................................................ 30 0 -30
Justification
This program was first implemented under the authorities of the Watershed Protection and Flood
Prevention Act of 1954 (Public Law 83-566) and the Flood Control Act of 1944 (Public Law 78-534). In 2010,
almost 75 percent of the program was directed to specific projects, eliminating the Natural Resource
Conservation Service's (NRCS's) ability to use project evaluations as a basis for prioritizing funding. In
addition, a 2003 Office of Management and Budget analysis showed that this NRCS program has a lower
economic return than other Federal flood prevention programs (such as those in the Army Corps of Engineers
or the Federal Emergency Management Agency).1
Citations
1 Army Corps of Engineers, 2003 Budget, pp. 294-295.
TERMINATION: WATERSHED REHABILITATION PROGRAM
Department of Agriculture
The Administration proposes to eliminate funding for the Department of Agriculture (USDA) Natural
Resources Conservation Service's (NRCS's) Watershed Rehabilitation program as the program's mission is
inconsistent with underlying Federal role in local dam rehabilitation.
Funding Summary
(In millions of dollars)
. 2010 Enacted 2012 Request 2012 Change from 2010
Budget Authority........................................................................................................................................ 40 0 -40
Justification
Since 2000, the Watershed Rehabilitation program has funded rehabilitation activities for flood control
dams originally constructed with Federal support as dams reach the end of their 50-year design life. Flood
control dams were originally constructed with the understanding that local sponsors would be responsible
for continuing operations and maintenance. Furthermore, local communities have increased the financial risk
of dam failure by allowing residential and commercial development in vulnerable floodplain areas around
dams. The localized benefits of dam rehabilitation should be funded through local sources.
REDUCTION: CLEAN WATER AND DRINKING WATER STATE REVOLVING FUNDS
Environmental Protection Agency
The Administration proposes to reduce funding by $947 million total for the Clean Water and Drinking
Water State Revolving Funds (SRFs). The Environmental Protection Agency's (EPA's) SRFs provide grants
to States to capitalize their State-run revolving funds, which provide loans to support improvements in
municipal wastewater and drinking water systems. The Administration proposes $1.55 billion for the Clean
Water SRF and $990 million for the Drinking Water SRF. This is a reduction from the historically high
funding levels provided in 2010, but a total of $1 billion more than provided in regular appropriations in
2009.
Funding Summary
(In millions of dollars)
. 2010 Enacted 2012 Request 2012 Change from 2010
Budget Authority........................................................................................................................................ 3,487 2,540 -947
Justification
The Administration continues robust support for SRFs and is focusing on working with States and
municipalities to enhance their technical, managerial and financial capacity. Future budgets for SRFs
gradually adjust through 2016 with the goal of providing, on average, about five percent of water
infrastructure spending annually. In 2010, SRFs made available $8.8 billion in financing to local communities
(this does not include American Recovery and Reinvestment Act funding).
Federal funding provided through the SRFs will act as a catalyst for efficient system-wide planning and
ongoing management of sustainable water infrastructure as EPA works with States and municipalities to
implement its Sustainable Water Infrastructure Policy. As part of this policy, the Budget requires that
States use at least 20 percent of their Clean Water SRF capitalization grant and 10 percent of their Drinking
Water capitalization grant for green infrastructure projects. The Administration also recognizes a need,
particularly in disadvantaged communities, for additional Federal assistance in supporting water and
wastewater infrastructure.
The Administration's proposal of $2.5 billion total for SRFs maintains the President's commitment to
helping provide clean and safe water and represents a four-year investment (2009 to 2012) totaling almost
$17 billion. REDUCTION: NONPOINT SOURCE GRANTS
Environmental Protection Agency
The Budget proposes $165 million for Section 319 Nonpoint Source Grants, a $36 million reduction from
2010. This decrease reflects the Environmental Protection Agency's (EPA) shift in emphasis to its core
programs, as well as the fact that the number of nonpoint source sectors has decreased as EPA has brought
formerly nonpoint source sectors such as concentrated animal feeding operations and stormwater under
regulation as point sources.
Funding Summary
(In millions of dollars)
. 2010 Enacted 2012 Request 2012 Change from 2010
Budget Authority........................................................................................................................................ 201 165 -36
Justification
Section 319 Nonpoint Source Grants help States implement their own nonpoint source management
programs. Through these grants, States fund nonpoint source staff, watershed planning, and project
implementation to address water pollution runoff from urban, agricultural, and other sources.
In 2012, EPA is emphasizing its core permitting programs that address point source pollution. Additionally,
the number of nonpoint source sectors has declined over time as EPA has brought formerly nonpoint source
sectors such as concentrated animal feeding operations and stormwater under regulation as point
sources. Some of this program's work also is duplicative with the Department of Agriculture conservation
programs.
PROGRAM INTEGRITY OVERVIEW
Government-wide
The Administration supports initiatives related to ensuring that Federal agencies are responsible stewards
of taxpayer resources. In fact, improving Federal financial management and eliminating waste are two
key areas of the Administration's Accountable Government Initiative to improve the operation and
effectiveness of Federal agencies.
Unfortunately, the Federal Government wastes billions of American taxpayers' dollars each year, including
billions of dollars paid improperly to individuals, organizations, and contractors, as well as billions of dollars
in debt owed to the Government. In 2010 alone, the Federal Government made an estimated $125 billion
in improper payments. In order to improve Government efficiency and prevent and recapture improper
payments, the President has issued three directives to agencies to prevent and recapture improper payments,
and signed into law new improper payments legislation, since November 2009. To help further drive
Government performance, the President has also set a goal of reducing improper payments by $50 billion
and recapturing at least $2 billion by the end of 2012. The Administration has taken important steps toward
achieving these goals, which have yielded early results. In 2010, the Government-wide improper payment
rate declined to 5.49 percent, a decrease from the 5.65 percent reported in 2009. Agencies also reported that
they recaptured $687 million in improper payments in 2010 -- the highest recapture amount to date. However,
despite these early successful results, the Administration has identified additional tools included in the
Budget that will help drive further progress in reducing and recapturing improper payments.
While agencies sometimes make improper payments, they also have trouble collecting money that is owed
to Federal agencies. In 2007, the Government Accountability Office (GAO) estimated that approximately
60,000 Federal contractors were delinquent on over $7 billion in Federal taxes. In 2008, GAO found that
over 27,000 Medicare providers owed more than $2 billion in tax debt. Through the Federal Payment Levy
Program, the Treasury currently deducts (levies) only up to 15 percent of a payment to Federal contractors
and Medicare providers with delinquent tax debt.
The 2012 Budget includes a number of legislative and administrative reforms on improper payments and
debt collection, which collectively comprise our program integrity efforts. Many of these proposals will
provide savings for the Federal Government (the savings for these proposals are shown in the table on the
following page) and support government-wide efforts to improve the management and oversight of Federal
resources. Collectively, these proposals will result in $167 billion in savings to the Federal Government
over ten years if enacted. In addition, other administrative proposals, while not resulting in direct Federal
savings, will also improve the operation and efficiency of important Federal programs.
The Administration's program integrity proposals are included on the following pages. These include
provisions previously proposed -- such as discretionary allocation adjustments for the Department of Health
and Human Services, the Social Security Administration, the Internal Revenue Service, and the Department
of Labor -- and new proposals for expanded debt collection authorities and to support Federal fraud-detection
technologies. If implemented, all of these proposals could help further improve stewardship of Federal
resources.
PARTNERSHIP
FUND FOR PROGRAM INTEGRITY INNOVATION
Executive Office of the President
The Partnership Fund for Program Integrity Innovation, which is managed by the Office of Management
and Budget in consultation with Federal, State, local, and other stakeholders, provides funding for Federal,
State, and local agencies to pilot and evaluate innovations to improve service delivery, payment accuracy,
and administrative efficiency across Federal assistance programs. The Partnership Fund targets pilots that
bridge program and agency silos to promote consistent and judicious use of resources, including staff,
information, systems, and processes. In addition to funding pilots that implement and test administrative
changes, the Partnership Fund allows for pilot projects that simulate the effects of more efficient, accurate
methods of service delivery that would require changes to existing regulatory or statutory authorities. These
simulations can inform both the Administration and the Congress about whether changes in authority may
be warranted. As pilots are selected, funding is transferred to the applicable Federal agencies to administer
the pilots in conjunction with Federal agencies, States or localities. The Administration proposes $20 million
in a discretionary allocation adjustment in 2012 to fund pilots, which will improve integrity of program
administration across multiple Federal assistance programs. The 2010 Consolidated Appropriations Act
(P.L. 111-117) included $37.5 million authorized through 2012 for the Partnership Fund. Justification
The Partnership Fund builds alliances among Federal, State, and local agencies to identify, pilot, and
evaluate new ideas that boost efficiency and prevent improper payments. The Partnership Fund prioritizes
pilots that target programs with high error rates and that also demonstrate high return on investment in
order to yield the greatest savings and efficiencies for taxpayers. For example, a recently funded pilot
simulation to reduce error in the Earned Income Tax Credit (EITC) program offers potential savings of over
$100 million annually for a pilot investment of $2 million. This pilot, managed by the Department of the
Treasury, will identify both current and new authorities required to take the pilot to scale. Statute requires
that, in the aggregate, Partnership Fund pilots save at least as much as they cost. Based on projections in
early pilots and pilots under development, the Partnership Fund will be able to use the additional funding
of $20 million to prioritize new projects that, like the EITC pilot, promise a significant return on investment.
112th Congress 1st Session
____________ ____
A BILL
____________ ____
To expedite disposal of unneeded civilian properties and realize savings.
Be it enacted by the Senate and House of Representatives of the United States
of America in Congress assembled, Justification
Before considering more significant investments in transitional job models, the Administration seeks to
integrate evidence from recent evaluations and the current demonstration. Three recent random-assignment
evaluations of transitional job programs for ex-offenders and Temporary Assistance for Needy Family
program recipients provide mixed results about the effectiveness of these programs.1,2 The current
demonstration will test enhanced transitional jobs models, designed to provide more substantive subsidized
jobs and better services to help participants succeed in unsubsidized employment. The Administration
hopes to explore whether modifications to the program -- for example, more of a focus on the transition from
the subsidized job -- would improve employment outcomes. While the demonstration is underway, some
funds from the proposed Workforce Innovation Fund could support additional targeted testing of transitional
jobs.
Citations
1 Dan Bloom, Transitional Jobs: Background, Program Models, and Evaluation Evidence, 2010.
2 Cindy Redcross et al, Work After Prison: One Year Findings from the Transitional Jobs Reentry Demonstration,
2010. SEC.10. IMPLEMENTATION OF BOARD RECOMMENDATIONS BY EXECUTIVE AGENCIES.
(a) Subject to section 9 of this Act, the agencies shall prepare and carry out each recommendation of the Board transmitted to the Congress by the Director pursuant to section 6(g) of this Act. Preparations to implement recommendations shall begin immediately. The agencies shall commence physical implementation of all such recommendations no later than two years after the date on which the Director transmits a report to the Congress pursuant to (9) An agency shall convey property under this sub-section utilizing the same disposal authorities as in section 10(c)(1) of this Act.
(g) Environmental Considerations.
(1) (A) When implementing the recommended actions for properties that have been identified in the Board's report, as specified in section 6(f), and subject to paragraph (2) of this subsection and in compliance with the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (42 U.S.C. 9601 et seq), including section 120(h) thereof (42 U.S.C. 9620(h)), Federal agencies may enter into an agreement to transfer by deed real property with any person.
(B) The head of the disposing agency may require any additional terms and conditions in connection with an agreement authorized by subparagraph (A) as the head of the disposing agency considers appropriate to protect the interests of the United States. Such additional terms and conditions shall not affect or diminish any rights or obligations of the federal agencies under CERCLA section 120(h) (including, without limitation, the requirements of CERCLA section 120(h)(3)(A) and section CERCLA 120(h)(3)(C)(iv)).
(2) A transfer of real property or facilities may be made under paragraph (1) only if the head of the disposing agency certifies to the Board and Congress that: (A) the costs of all environmental restoration, waste management, and environmental compliance activities otherwise to be paid by the disposing agency with respect to the property or facilities are equal to or greater than the fair market value of the property or facilities to be transferred, as determined by the head of the disposing agency; or
(B) if such costs are lower than the fair market value of the property or facilities, the recipient of the property or facilities agrees to pay the difference between the fair market value and such costs.
(3) In the case of property covered by a certification under paragraph 2(A), the disposing agency may pay the recipient of such property or facilities an amount equal to the lesser of:
(A) the amount by which the costs incurred by the recipient of such property or facilities for all environmental restoration, waste management, and environmental compliance activities with respect to such property or facilities exceed the fair market value of such property or facilities as specified in such certification; or
(B) the amount by which the costs (as determined by the head of the disposing agency) that would otherwise have been incurred by the Secretary for such restoration, waste management, and environmental compliance activities with respect to such property or facilities exceed the fair market value of such property or facilities as so specified.
(4) As part of an agreement under section (g) paragraph (1) of this Act, the head of the disposing agency shall, in accordance with applicable law, disclose to the person to whom the property or facilities will be transferred information possessed by the Agency regarding the environmental restoration, waste management, and environmental compliance activities described in section (1) that relate to the property or facilities. The Agency shall provide such information before entering into the agreement.
(5) For the purposes of granting time extensions under section 10(a), the Director shall give the need for significant environmental remediation to a piece of property more weight than any other factor in determining whether to grant a two-year extension to implement a Board recommendation.
(6) Nothing in this Act shall be construed to modify, alter, or amend the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (42 U.S.C. 9601 et seq.), the National Environmental Policy Act of 1969, or the Solid Waste Disposal Act (42 U.S.C. 6901 et seq.). (h) No provision of law shall be construed as restricting the use of funds for disposing or realigning Federal civilian real property in accordance with an approved recommendation that gains legal force under section 9, except in the case of a provision of law which specifically refers to a particular asset of Federal civilian real property and expressly states that such restriction shall apply to such asset notwithstanding this Act. section 6(g) of this Act containing the recommendations and complete all such recommendations no later than the end of the six-year period beginning on the date on which the Director transmits a report to the Congress pursuant to section 6(g) of this Act containing the recommendations. For recommendations that will take longer than the six-year period due to extenuating circumstances, agencies shall notify OMB as soon as the circumstance presents itself with an estimated time to complete the recommendation. In such cases, the Director may extend the period for completion of the recommendation for a period of up to an additional two years.
(b) In carrying out any recommendations under this part, the agencies may:
(1) acquire such land, construct such replacement facilities, and conduct such advance planning and design as may be required to transfer functions from one location to another;
(2) provide outplacement assistance to civilian employees employed by the agency at a location subject to a recommendation;
(3) carry out activities for the purposes of environmental restoration and mitigation at any such installation; and
(4) reimburse other Federal agencies for actions performed at the request of the Board with respect to any such recommendation.
(c) Specific Authorities.
(1) Notwithstanding any other provisions of the laws that govern the disposal authorities of the Federal agencies, all disposals implemented as a result of a Board recommendation shall be implemented in accordance with sections 2, 3, 6, 9, 10, 11, and 12 of this Act. Where the currently existing disposal authority for an agency is inconsistent with this Act, this Act's provisions control the implementation of a disposal recommended by the Board. To the extent that the disposal authorities are otherwise consistent with this Act, an agency shall implement a recommendation in the Board's report to dispose a property by utilizing its existing disposal authorities, whether it has been delegated disposal authority by the Administrator of the General Services Administration, pursuant to the Federal Property Act, it has an independent disposal authority, or it must work in partnership with the General Services Administration.
(2) In accordance with section 10 of this Act, when implementing a recommendation to consolidate, reconfigure, co-locate, or realign a real property asset, all agencies are authorized to take such action as is necessary to implement the approved recommended actions of the Board. Consistent with sections 6 and 9 of this Act, the Board's report may instruct a Federal agency to utilize the expertise of the General Services Administration in carrying out a recommended consolidation, reconfiguration, co-location, or realignment. Any Federal agency, at its discretion, is also authorized, consistent with existing law and funding, to contract with the General Services Administration for assistance or consultation on implementing a recommendation to consolidate, reconfigure, co-locate, or realign a real property asset.
(3) The identification of any Federal civilian real property as an asset to be disposed, consolidated, reconfigured, or otherwise realigned in a report published by the Board temporarily freezes any transaction with respect to that property that would prevent a recommendation from being carried out within the end of the statutory deadline for Congress to consider the Board's report, whether exercised by the agency maintaining custody or control of the property, or an agency acting on behalf of that custodial agency. All such transactions shall remain frozen until the recommended action on the identified property is disapproved by Congress pursuant to section 9(e) of this Act, is withheld from transmission to Congress by the OMB Director, or is not disapproved by Congress pursuant to section 9(e) of this Act. In the event of disapproval or withholding, all such transactions are unfrozen and the agency maintaining custody or control over the property may resume its management of the property unrestricted. Otherwise, consistent with sections 9 and 10 of this Act, an agency shall implement the recommended action.
(d) For any transaction identified, recommended or commenced as a result of this Act, the Board shall determine whether and to what extent an agency shall implement the transaction notwithstanding any legal priorities or requirements to enter into a transaction to convey a Federal civilian real property for less than fair market value or in a transaction that mandates the exclusion of other market participants.
(e) Any recommendation or commencement of a disposal, consolidation, reconfiguration, co-location, or realignment of civilian real property shall not be subject to-
(1) section 545(b)(8) of title 40, United States Code;
(2) sections 550, 554, and 553 of title 40, United States Code;
(3) section 501 of the McKinney-Vento Homeless Assistance Act (42 U.S.C. 11411);
(4) any section of An Act Authorizing the Transfer of Certain Real Property
for Wildlife, or other Purposes (16 U.S.C. 667b);
(5) section 47151 of title 49, United State Code;
(6) sections 107 and 317 of title 23, United States Code;
(7) section 1304(b) of title 40, United States Code;
(8) (9) any other provision of law authorizing the conveyance of real property owned by the Federal Government for no consideration; and
(10) any congressional notification requirement other than that in section 545 of title 40, United States Code.
(f) Public Benefit.
(1) Consistent with section 6(f) of this Act, the Board shall submit to the Secretary of Housing and Urban Development (Secretary of HUD), on the same day it submits its report to the Director of the OMB, all known information on the buildings or properties that are listed in the separate list of properties intended for conveyance under a public benefit conveyance program authorized by a provision of law enumerated in section 10(e) of this Act. Within 60 calendar days the Secretary of HUD must report to the Board on the suitability of all the properties on this list for use as a property benefitting the mission of assistance to the homeless.
(2) Within 90 calendar days of the Board's first submission of its report to the Director of the OMB, any representatives of the homeless proposing interest in the use of property that the Board has determined should be conveyed under any of the public benefits authorized by a provision of law enumerated in section 10(e) of this Act, may submit a notice of interest containing the following to the Board and to the Secretary of HUD:
a. a description of the homeless assistance program that the representative proposes to carry out at the installation;
b. an assessment of the need for the program;
c. a description of the extent to which the program is or will be coordinated in the communities in the vicinity of the property with the local Continuum of Care, as defined by Section 1301 of the Helping Families Save Their Homes Act of 2009;
d. a description of grants currently funded through the McKinney-Vento homeless assistance programs;
e. a description of the buildings and property that are necessary in order to carry out the program;
f. a description of the financial plan, the organization, and the organizational capacity of the representative to carry out the program;
g. an assessment of the time required in order to commence carrying out the program; and
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h. The ability of the provider to financially and clinically support a homeless use.
(3) The Secretary of HUD shall review and certify submissions from
representatives of the homeless and submit to the Board an assessment of the validity and merits of the notice of interest within 120 calendar days from the date the Board submits its report to the OMB Director. In the case where more than one notice of interest is entered for a property, the Secretary shall indicate to the Board which planned use of the property for the homeless has more merit.
(4) Within 90 calendar days of the Board's submission to the Director of the OMB and public release of the Board's report, any parties proposing interest, for a use that is not homeless assistance, in the property that the Board has listed pursuant to section 6(f)(2) of this Act, may submit a notice of interest to the Board and to the Federal agency that is otherwise tasked by law to review applications for the statutory public benefit conveyance program under which the party is applying. The notice of interest must contain the information otherwise required in an application under the law creating the conveyance program and must be for a program authorized by a provision of law listed in section 10(e) of this Act.
(5) Federal agencies tasked with reviewing applications for public benefit conveyance programs, that receive notices of interest with information pertaining to the certification of the validity of a proposed public benefit conveyance that is not for homeless assistance and is authorized by a provision of law enumerated in section 10(e) of this Act, shall review and certify submissions from parties proposing such future use for the property and submit to the Board an assessment of the validity and merits of the information contained in the notice of interest within 120 calendar days from the date the Board submits its report to the OMB Director. In the case where more than one notice of interest is entered for a property, the head of the reviewing agency shall indicate to the Board which planned use of the property has more merit.
(6) To give disposing agencies instruction as to the final disposition of the properties in its inventory that have been recommended for a public benefit conveyance program, subject to section 9 of this Act, the Board shall compile all assessments resulting from submitted notices of interest, for any of the public benefit conveyance programs authorized by a provision of law enumerated in section 10(e) of this Act, that have been submitted to it on the list of properties that the Board deemed suitable for conveyance under a public benefit program, and shall forward them to the agencies that maintain custody and control over the civilian real properties to be conveyed.
(7) In the event a property reviewed by HUD is found to be fit for use by the homeless and HUD has identified a representative of the homeless whose notice of interest is certified, or, in the event of more than one notice of interest on the
16
property, whose notice of interest is deemed to have the most merit by HUD, the agency maintaining custody or control of the property, in accordance with section 10 of this Act, shall commence conveyance of the property to that representative of the homeless, subject to section 9 of this Act. In the event a reviewed property is found to be unfit for use by the homeless, or there is no identified notice of interest on the property by a representative of the homeless, the disposing agency maintaining custody or control shall then look to whether there are any parties that have expressed interest in the property for one of those uses authorized by a provision of law enumerated in section 10(e) of this Act that are not homeless assistance and whether any Federal reviewing agency has certified one of those uses. If so, the disposing agency maintaining custody or control of the property shall commence conveyance of the property to that party that proposed the certified use, subject to section 9 of this Act. In the event that there is more than one party that has expressed interest in the property in this manner, the disposing agency maintaining custody or control shall have the discretion to choose among them, but shall look to where the property will be used for its highest and best use.
(8) In the event a property does not qualify for, or there is no interest in a property reviewed for, one of those uses authorized by a provision of law enumerated in section 10(e) of this Act, the disposing agency maintaining custody or control shall have the discretion to choose among any other remaining ways to implement a disposition of the property, subject to section 9 of this Act.
(9) An agency shall convey property under this sub-section utilizing the same disposal authorities as in section 10(c)(1) of this Act.
(g) Environmental Considerations.
(1) (A) When implementing the recommended actions for properties that have been identified in the Board's report, as specified in section 6(f), and subject to paragraph (2) of this subsection and in compliance with the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (42 U.S.C. 9601 et seq), including section 120(h) thereof (42 U.S.C. 9620(h)), Federal agencies may enter into an agreement to transfer by deed real property with any person.
(B) The head of the disposing agency may require any additional terms and conditions in connection with an agreement authorized by subparagraph (A) as the head of the disposing agency considers appropriate to protect the interests of the United States. Such additional terms and conditions shall not affect or diminish any rights or obligations of the federal agencies under CERCLA section 120(h) (including, without limitation, the requirements of CERCLA section 120(h)(3)(A) and section CERCLA 120(h)(3)(C)(iv)).
(2) A transfer of real property or facilities may be made under paragraph (1) only if the head of the disposing agency certifies to the Board and Congress that:
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(A) the costs of all environmental restoration, waste management, and environmental compliance activities otherwise to be paid by the disposing agency with respect to the property or facilities are equal to or greater than the fair market value of the property or facilities to be transferred, as determined by the head of the disposing agency; or
(B) if such costs are lower than the fair market value of the property or facilities, the recipient of the property or facilities agrees to pay the difference between the fair market value and such costs.
(3) In the case of property covered by a certification under paragraph 2(A), the disposing agency may pay the recipient of such property or facilities an amount equal to the lesser of:
(A) the amount by which the costs incurred by the recipient of such property or facilities for all environmental restoration, waste management, and environmental compliance activities with respect to such property or facilities exceed the fair market value of such property or facilities as specified in such certification; or
(B) the amount by which the costs (as determined by the head of the disposing agency) that would otherwise have been incurred by the Secretary for such restoration, waste management, and environmental compliance activities with respect to such property or facilities exceed the fair market value of such property or facilities as so specified.
(4) As part of an agreement under section (g) paragraph (1) of this Act, the head of the disposing agency shall, in accordance with applicable law, disclose to the person to whom the property or facilities will be transferred information possessed by the Agency regarding the environmental restoration, waste management, and environmental compliance activities described in section (1) that relate to the property or facilities. The Agency shall provide such information before entering into the agreement.
(5) For the purposes of granting time extensions under section 10(a), the Director shall give the need for significant environmental remediation to a piece of property more weight than any other factor in determining whether to grant a two-year extension to implement a Board recommendation.
(6) Nothing in this Act shall be construed to modify, alter, or amend the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (42 U.S.C. 9601 et seq.), the National Environmental Policy Act of 1969, or the Solid Waste Disposal Act (42 U.S.C. 6901 et seq.). (h) No provision of law shall be construed as restricting the use of funds for disposing or realigning Federal civilian real property in accordance with an approved recommendation that gains legal force under section 9, except in the case of a provision of law which specifically refers to a particular asset of Federal civilian real property and expressly states that such restriction shall apply to such asset notwithstanding this Act. transfer, from the gross proceeds to an executive agency, amounts to cover the necessary costs associated with the disposal of property.
(3) Net proceeds (which are gross proceeds received from the disposal of any civilian real property pursuant to a recommendation of the Board, less the amounts transferred from this account under section 11(b)(2)(A) and (c)(2) of this Act), shall be divided between the General Fund of the Treasury, Federal executive agencies (for the purpose of real property management reinvestment), and the Asset Proceeds and Space Management Fund. On an annual basis, the OMB Director shall determine how the net proceeds shall be distributed, through transfer, between the General Fund, Federal agencies, and the Asset Proceeds and Space Management Fund, but in no case shall the General Fund receive less than sixty percent of the net proceeds. In support of these duties, the Board, with the consent of the OMB Director, may transfer, from the Space Management Fund, to a Federal agency or the U.S. Postal Service, amounts:
(A) to cover the necessary costs associated with-
(i) consolidation, co-location, and reconfiguration actions;
(ii) other actions taken to otherwise realize operational efficiencies, including but not limited to such actions as environmental restoration; and
(B) for outplacement assistance to Federal employees who work at a Federal property that is affected by actions taken under this section, and whose employment would be terminated as a result of such disposal, consolidation, or other realignment.
(4) The amounts transferred pursuant to section 11(c)(3)(A)-(B) under this sub-section must be obligated by the recipient agency within three years of the transfer. Any amounts that are not obligated within three years shall be transferred back to the Asset Proceeds and Space Management Fund. SEC.13. EXECUTIVE DIRECTOR
(a) The Board shall appoint an Executive Director.
(b) For the purposes of this Act, the Board may appoint an Executive Director without regard to the provisions of title 5, United States Code, governing appointments in the competitive service.
(c) Consistent with 5 U.S.C. 3132(a)(2), the Executive Director shall be paid at the rate of basic pay payable for level IV of the Executive Schedule under section 5315 of title 5, United States Code, except that an individual so appointed may not receive pay outside of the pay range of the Senior Executive Service. SEC.14. STAFF
(a) Subject to paragraph (b), the Executive Director, with the approval of the
Board, may appoint and fix the pay of additional personnel.
(b) The Executive Director may make such appointments without regard to the
provisions of title 5, United States Code, governing appointments in the competitive service, and any personnel so appointed may be paid without regard to the provisions of chapter 51 and subchapter III of chapter 53 of that title relating to classification and General Schedule pay rates, except that an individual so appointed may not receive pay in excess of the maximum rate of basic pay for GS-15 under section 5332 of title 5, United States Code.
(c) Upon request of the Executive Director, the head of any Federal department or
agency may detail any of the personnel of that department or agency to the Board to assist the Board in carrying out its duties under this part. The Executive Director, with the approval of the Board, is authorized to request both reimbursable and non-reimbursable detailees.
SEC.15. CONTRACTING AUTHORITY. (a) The Board may procure by contract, to the extent funds are available, the temporary
or intermittent services of experts or consultants pursuant to section 3109 of title 5, United
States Code.
(b) The Board may lease space and acquire personal property. SEC.16. TERMINATION.
The Board shall cease operations and terminate 12 years from the date of the enactment of this Act. This Act shall expire 180 calendar days after that date.
SEC. 17. PRECLUSION OF JUDICIAL REVIEW.
The following actions shall not be subject to judicial review:
(a) Actions of the Board under Section 6 of this Act.
(b) Actions of the Director of OMB under Section 6(g) of this Act.
(c) Actions of the Board, the Secretary of HUD, and Federal agencies under Section 10(f) of this Act.
Catalog of Federal Domestic Assistance (CFDA) - the on-line database of all Federal programs available. Each grant is assigned a specific CFDA program code and listed after each EPA grant program. Use the program code to search the database to find further information.
Purpose: To support, Internships, Training, Workshops and Fellowships, and Technical Monitoring in support of the Clean Air Act. These activities will support: (1). The development of career-oriented personnel qualified to work in occupations involving environmental protection and air pollution abatement and control; (2). Provides technical training for State, local, territorial, Indian Tribal environmental control agencies; (3). Enhances the capability of state and local agencies responsible for environmental pollution control or other agencies with similar pollution control responsibilities; (4). provides educational renewal for career oriented personnel to achieve additional knowledge through academic professional training; (5). supports students pursuing courses of study in fields relevant to the study and control of mobile source air pollution and traineeship; and, (6). Brings new people into the environmental control field.
Purpose: Supports efforts by government organizations and educational institutions to establish or enhance their ability to take actions that will reduce environmental risks to the health of children or elderly population.
Contact: Office of Children's Health Protection at (202) 564-2188
Purpose : To provide financial assistance to private nonprofit institutions, universities, and public agencies to develop projects to improve environmental compliance within an identified industrial/government sector. The funds are to be used to create compliance assistance tools utilizing industry and commercial communication channels to deliver the assistance tools.
Purpose : Providing financial resources to build and improve the compliance assurance and enforcement capacity of federally-recognized Indian tribal governments (tribes), inter-tribal consortia, or tribal organizations by providing financial resources and to improve compliance with environmental laws. As required by statute, such capacity building efforts may include economic, social science, statistical research, development, studies, surveys, demonstrations, investigations, public education, training, and fellowships to the extent authorized under the federal environmental laws listed above. This Catalogue of Federal Domestic Assistance (CFDA) number covers EPA's Environmental Program Management (EPM) resources targeted for compliance assurance and enforcement in Indian country and other tribal areas, including those in Alaska.
Purpose: Provide tribes and states with greater flexibility to address their highest environmental priorities, improve environmental performance, achieve administrative savings, and strengthen partnerships between EPA and the states or tribes. PPGs are an alternative assistance delivery mechanism and do not represent funding in addition to grants provided under individual authorities. Recipients can conduct activities in multiple areas and combine two or more of twenty different EPA grants, including GAP resources.
Purpose: Facilitates electronic exchange of environmental, health, and geographic data to make it easier for EPA and its partners on the Exchange Network to obtain the timely and accurate information needed to make better decisions.
Contact: The Exchange Network Help Desk is available for technical support, between the hours of 8:00 am and 6:00 pm (EST) at 888-890-1995.
Purpose: Supports activities that reduce pollutants generated and increase conservation of natural resources, improve economic information and analytic methods to support projects on the benefits, costs and impacts of environmental programs and on incentive-based and voluntary environmental management strategies and mechanisms.
Contact: Office of Policy, Economics and Innovation at (202) 564-4332
Purpose : Grants are awarded to support projects that meet two criteria: 1) They must be located in and directly benefit one or more Target Investment Areas(Environmental Justice Areas of Potential Concern, Places with High Risks from Toxic Air Pollution, Sensitive Populations, and/or Urban Areas); and 2) They must achieve measurable environmental and public health results in one or more of the Target Program Areas (defined in the annual funding announcement). Funds for all projects should support activities to restore or revitalize the environment, provide education, outreach, training, organize, or conduct community planning activities in the Target Program Areas (defined in the annual funding announcement).
Purpose : These assistance agreements involve Congressionally directed projects/programs for specific purposes in EPA's annual Appropriations Act or annual Appropriations Conference Report. These assistance agreements support surveys, studies and investigations, research and demonstrations, and special purpose assistance for specific purposes and/or designated organizations. The projects are assistance agreements which are associated with: (1) various environmental requirements (e.g. wastewater treatment); (2) identifying, developing, and/or demonstrating necessary pollution control techniques to prevent, reduce, and eliminate pollution; and/or (3) evaluating the economic and social consequences of alternative strategies and mechanisms for use by those in economic, social, governmental, and environmental management positions.
Purpose : To provide technical assistance, training, information exchange and other forms of cooperation to enhance the capabilities of governments and other stakeholders to protect human health and the environment regionally and globally.
Contact : Call the Office of International Affairs (OIA) at 202-564-6613
Purpose: To restore and maintain the chemical, physical, and biological integrity of the Great Lakes Basin Ecosystem. The Great Lakes National Program Office (GLNPO), in concert with USEPA Regions 2, 3, and 5, leads a consortium of programs, agencies, and public and private institutions in attaining specific objectives and actions that will reduce contaminants, restore habitat, and protect the living resources of the basin. Great Lakes Strategy 2002, developed by EPA in conjunction with other Federal, State, and Tribal agencies and accessible at http://www.epa.gov/glnpo/gls/index.html, guides the activities of these organizations towards the Great Lakes Water Quality Agreement goal of restoring the chemical, physical, and biological integrity of the waters of the Great Lakes Basin Ecosystem.
Contact: Great Lakes National Program Office at (312) 353-2117
To assist States, Indian Tribes, interstate agencies, and other public or nonprofit organizations in developing, implementing, and demonstrating innovative approaches relating to the causes, effects, extent, prevention, reduction, and elimination of water pollution;
To expand and strengthen cooperative efforts to restore and protect the health and productivity of the Gulf of Mexico in ways consistent with the economic well-being of the region and to achieve the goals and priorities recommended by the Gulf of Mexico Program Policy Review Board (a Federal Advisory Committee) and the funding priorities of the Gulf of Mexico Program Office (GMPO).
Purpose: To support investigations, experiments, training, demonstrations, surveys, studies, and special purpose assistance to protect public health and prevent, reduce, and eliminate pollution in Iowa, Kansas, Missouri, and Nebraska. Projects may be single media or multimedia which support the regional environmental priorities. Single media grants support pollution prevention efforts for individual environmental law statutes. Multimedia grants are assistance agreements that are awarded citing two or more environmental law statutes, appropriation legislation, or applicable legislative history as the statutory authority.
Contact: EPA Region 7 Drinking Water/Groundwater Management Branch at (913) 551-7667
Purpose : Environmental Monitoring and Assessment Program (EMAP) is a long-term research program designed to statistically monitor the conditions of our Nation's ecological resources. REMAP, which is a component of EMAP, is a partnership between the Office of Research and Development, EPA's Regional Offices, other federal agencies, states, local governments, and U.S. Tribal nations. It was developed to test the applicability of EMAP's probabilistic approach to answer questions about ecological conditions at regional and local levels. The primary objectives of the solicited research are to assist states and tribes in incorporating statistically valid ecological monitoring data into their environmental decision-making process.
Purpose: Supports research on environmental and human health effects of air quality, drinking water, water quality, hazardous waste, toxic substances, and pesticides. Supports research to explore and develop strategies and mechanisms for those in the economic, social, governmental, and environmental systems to use in environmental management decisions.
Purpose: Supports surveys, studies and investigations and special purpose assistance to determine the environmental effects of air quality, drinking water, water quality, hazardous waste, toxic substances, and pesticides; and identify, develop, and demonstrate effective pollution control techniques; and perform risk assessments to characterize the potential adverse health effects of human exposures to environmental hazards.
Contact: Office of Research and Development at (202) 564-6680
Purpose: Supports research on environmental effects of air quality, drinking water, water quality, hazardous waste, toxic substances and pesticides; to identify, develop and demonstrate necessary and effective pollution control techniques; and to explore and develop strategies and mechanisms for those in the economic, social, governmental and environmental systems to use in environmental management decisions.
Contact: Office of Research and Development at (202) 564-6680
Purpose: Support surveys, studies and investigations, and special purpose assistance associated with air quality, acid deposition, drinking water, water quality, hazardous waste, toxic substances, and pesticides.
Contact: Office of Children's Health Protection at (202) 564-2188
GSA Embarks on Comprehensive Reinvention of Leasing
Results Could Signal Major Beneficial Changes for Landlords By Mark Heschmeyer May 4, 2011
Looking to bring its leasing procedures more in line with market conditions and correct inconsistencies with market practices, the U.S. General Services Administration just released its final Lease Reform Implementation Report.
According the GSA, the process of offering to lease space to the federal government differs so much from the process in the private commercial real estate sector that it discourages many building owners or developers from offering space in their buildings to the government. In particular, the GSA report identified such problems as:
The length of time it requires to conclude a lease from end to end;
The high cost to offerors to compete for GSA leases;
Delays and inconsistencies in the requirements development process; and
The detrimental effects that holdovers and extensions have on lessors' abilities to refinance or sell their GSA-occupied buildings.
The report links these issues with a lack of response from the open market, and limited offerings translate into higher rates, the GSA has said.
The reforms are important to the market given the amount of space the GSA leases across the country. At the end of FY 2010, the GSA lease inventory rose to 191.4 million rentable square feet consisting of 9,285 leases in 8,094 buildings.
The largest share of the inventory by lease count - 82% - is vested in smaller leases, up to $500,000 net annual rent (total rent less operating expense rent). These leases account for only 30.2% of total square footage and 24.4% of rent.
Conversely, leases in excess of $1 million net annual rent represent 9% of the lease count but 56% of the square footage and 61% of total annual rent.
GSA's reinvention seeks to "streamline, standardize, and simplify" the process for both large and small leases, and thus the results could signal major beneficial changes for all concerned.
"The final report and the associated Leasing Desk Guide provide the details on the much-anticipated GSA leasing process overhaul that has been underway for the past 18 months or so," said Darian A. LeBlanc, senior managing director, Government Services Group of Cassidy Turley in Washington, DC. "My initial impressions are that the changes are more than superficial and provide some much-needed streamlining to the federal leasing process. The modified process and lease forms will be comfortable and 'user friendly' to those familiar with past GSA practices.
GSA will gradually pilot their new process to the real estate industry over the coming months to identify possible improvements and troubleshoot potential problems.
"The older process will still be used, in parallel, for most lease procurements during this period. Eventually the new process will become the standard," LeBlanc added. "There will be a learning curve, but otherwise I don't see many negatives to the new process. It certainly can't be any worse than the current process."
The GSA hopes to have some of the changes in effect soon. Others, such as those requiring statutory changes, will take longer.
GSA's includes many aspects that are GSA-internal, such as establishing teams and sub-teams for different aspects of review and follow-up, but many of the aspects are directly related to how the private sector will compete for GSA leases. Some of the more interesting proposals include the following.
The simplified lease model for leases up to the SLAT (Simplified Lease Acquisition Threshold), currently $150,000 net average annual rent;
A petition to increase the SLAT to $500,000;
Applying industry space measurement technology consistently by specifying ABOA (ANSI/BOMA Office Area) as the GSA standard for the area where people and furniture
are housed;
A "one and done" acquisition plan, no longer a living document that must be revised; and
Adoption of the Master Format standard for costing and pricing tenant improvement construction costs.
Adjusting lease terms is also up for major changes. GSA has traditionally negotiated a 10-year lease term with five years firm, providing the government with termination rights any time after the fifth full year of occupancy. The rest of the market, typically signs 3- to 5-year leases with the right to renew for additional periods at the end.
Under the new plan, GSA is examining the cost impact of termination rights. Among other options the GSA will consider is allowing for longer firm terms beyond five years (6, 7, 8, 9, or 10-plus years, not to exceed 20 years firm). These options would enable lessors to arrange better cash flow for financing, GSA to better manage project workload, and customers to lease space according to true need. If the Simplified Lease Model is used, the standard default for leases with terms of five years or less will be firm, with no termination rights.
The Obama administration announced that it will impose stricter pollution controls on millions of acres of wetlands and tens of thousands of streams.
1. Federal Financial Report, SF425. A final SF425 (see website for the form and
instructions) report must be submitted within 90 days after the budget period end date.
The report must be prepared in accordance with the instructions and forwarded to:
Las Vegas Finance Center
PO Box 98515
Las Vegas, NV 89193-8515
or faxed to 702-798-2423
Generally applicable reporting requirements may be found in the Code of Federal Regulations, for example:
State/Local Governments and Indian Tribes, see 40 CFR Part 31.
Recipients other than State/Local Governments, such as Universities, etc., see 40
CFR Part 30. Cooperative Agreements for Superfund State Contracts for
Superfund Response Action, see 40 CFR Part 35 Subpart O.
In addition, recipients should consult the terms and conditions of their assistance
agreements for additional reporting requirements.
FEDS PROPOSE TO NULLIFY THE GENERAL MINING LAW!
[Federal Register: April 26, 2011 (Volume 76, Number 80)] [Proposed Rules] [Page 23230-23236] From the Federal Register Online via GPO Access [wais.access.gpo.gov] [DOCID:fr26ap11-21] [[Page 23230]] ======================================================================= ----------------------------------------------------------------------- DEPARTMENT OF THE INTERIOR Bureau of Land Management 43 CFR Parts 2090 and 2800 [WO 300-1430-PQ] RIN 1004-AE19 Segregation of Lands--Renewable Energy AGENCY: Bureau of Land Management, Interior. ACTION: Proposed Rule. ----------------------------------------------------------------------- SUMMARY: The Bureau of Land Management (BLM) is proposing this rule to amend the BLM's regulations found in 43 CFR parts 2090 and 2800 by adding provisions allowing the BLM to temporarily segregate from the operation of the public land laws, by publication of a Federal Register notice, public lands included in a pending or future wind or solar energy generation right-of-way (ROW) application, or public lands identified by the BLM for a potential future wind or solar energy generation ROW authorization under the BLM's ROW regulations, in order to promote the orderly administration of the public lands. If segregated under this rule, such lands would not be subject to appropriation under the public land laws, including location under the Mining Law of 1872 (Mining Law), but not the Mineral Leasing Act of 1920 (Mineral Leasing Act) or the Materials Act of 1947 (Materials Act), subject to valid existing rights, for a period of up to 2 years. The BLM is also publishing in today's Federal Register an interim temporary final rule (Interim Rule) that is substantively similar to this proposed rule. The Interim Rule is effective immediately upon publication in the Federal Register for a period not to exceed 2 years after publication, or the completion of the notice and comment rulemaking process for this proposed rule whichever occurs first. DATES: You should submit your comments on the proposed rule on or before June 27, 2011. The BLM need not consider, or include in the administrative record for the final rule, comments that the BLM receives after the close of the comment period or comments delivered to an address other than those listed below (see ADDRESSES). ADDRESSES: Mail: Director (630) Bureau of Land Management, U.S. Department of the Interior, Mail Stop 2143LM, 1849 C St., NW., Washington, DC 20240, Attention: 1004-AE19. Personal or messenger delivery: U.S. Department of the Interior, Bureau of Land Management, 20 M Street, SE., Room 2134LM, Attention: Regulatory Affairs, Washington, DC 20003. Federal eRulemaking Portal: http:// www.regulations.gov . Follow the instructions at this Web site. FOR FURTHER INFORMATION CONTACT: Ray Brady at (202) 912-7312 or the Division of Lands, Realty, and Cadastral Survey at (202) 912-7350 for information relating to the BLM's renewable energy program or the substance of the proposed rule, or Ian Senio at (202) 912-7440 for information relating to the rulemaking process generally. Persons who use a telecommunications device for the deaf (TDD) may call the Federal Information Relay Service (FIRS) at 1-800-877-8339, 24 hours a day, seven days a week to contact the above individuals. SUPPLEMENTARY INFORMATION: I. Public Comment Procedures II. Background III. Section-by-Section Analysis IV. Procedural Matters I. Public Comment Procedures If you wish to comment, you may submit your comments by one of several methods: You may mail comments to Director (630) Bureau of Land Management, U.S. Department of the Interior, Mail Stop 2143LM, 1849 C St., NW., Washington, DC 20240, Attention: 1004-AE19. You may deliver comments to U.S. Department of the Interior, Bureau of Land Management, 20 M Street, SE., Room 2134LM, Attention: Regulatory Affairs, Washington, DC 20003; or You may access and comment on the proposed rule at the Federal eRulemaking Portal by following the instructions at that site (see ADDRESSES). Written comments on the proposed rule should be specific, should be confined to issues pertinent to the proposed rule, and should explain the reason for any recommended change. Where possible, comments should reference the specific section or paragraph of the proposed rule that the comment is addressing. The BLM need not consider or include in the Administrative Record for the proposed rule comments that we receive after the close of the comment period (see DATES) or comments delivered to an address other than those listed above (see ADDRESSES). Comments, including names and street addresses of respondents, will be available for public review at the U.S. Department of the Interior, Bureau of Land Management, 20 M Street, SE., Room 2134LM, Washington, DC 20003 during regular hours (7:45 a.m. to 4:15 p.m.) Monday through Friday, except holidays. They will also be available at the Federal eRulemaking Portal http:// www.regulations.gov . Follow the instructions at this Web site. Before including your address, telephone number, e-mail address, or other personal identifying information in your comment, be advised that your entire comment--including your personal identifying information-- may be made publicly available at any time. While you can ask in your comment for the BLM to withhold your personal identifying information from public review, we cannot guarantee that we will be able to do so. II. Background Congress has directed the Department of the Interior (Department) to facilitate the development of renewable energy resources. Promoting renewable energy is one of this Administration's and this Department's highest priorities. In Section 211 of the Energy Policy Act of 2005 (119 Stat. 660, Aug. 8, 2005) (EPAct), Congress declared that before 2015 the Secretary of the Interior should seek to have approved non- hydropower renewable energy projects (solar, wind, and geothermal) on public lands with a generation capacity of at least 10,000 megawatts (MW) of electricity. Even before the EPAct was enacted by Congress, President Bush issued Executive Order 13212, ``Actions to Expedite Energy-Related Projects'' (May 18, 2001), which requires Federal agencies to expedite the production, transmission, or conservation of energy. After passage of the EPAct, the Secretary of the Interior issued several orders emphasizing the importance of renewable energy development on public lands. On January 16, 2009, Secretary Kempthorne issued Secretarial Order 3283, ``Enhancing Renewable Energy Development on the Public Lands,'' which states that its purpose is to ``facilitate[ ] the Department's efforts to achieve the goal Congress established in Section 211 of the * * * [EPAct] to approve non- hydropower renewable energy projects on the public lands with a generation capacity of at least 10,000 megawatts of electricity by 2015.'' The order also declared that ``the development of renewable energy resources on the public lands will increase domestic energy production, provide alternatives to traditional energy resources, and enhance the energy security of the United States.'' Approximately 1 year later, Secretary Salazar issued Secretarial Order 3285A1, ``Renewable Energy Development by the Department of the Interior'' (Feb. 22, 2010), which reemphasized the development of [[Page 23231]] renewable energy as a priority for the Department. The order states: ``Encouraging the production, development, and delivery of renewable energy is one of the Department's highest priorities. Agencies and bureaus within the Department will work collaboratively with each other, and with other Federal agencies, departments, states, local communities, and private landowners to encourage the timely and responsible development of renewable energy and associated transmission while protecting and enhancing the Nation's water, wildlife, and other natural resources.'' As a result of these and other initiatives, the interest in renewable energy development on public lands has increased significantly. In addition to these specific directives, the BLM is charged generally with managing the public lands for multiple uses under the Federal Land Policy and Management Act of 1976 (FLPMA), 43 U.S.C. 1701, et seq., including for mining and energy development. In some instances, different uses may present conflicts. For example, a mining claim located within a proposed ROW for a utility-scale solar energy generation facility could impede the BLM's ability to process the ROW application because the Federal government's use of the surface cannot endanger or materially interfere with a properly located mining claim. In order to help avoid such conflicts while carrying out the Congressional and Executive mandates and direction to prioritize the development of renewable energy, the BLM is proposing this rule. This rule will help promote the orderly administration of the public lands by giving the BLM a tool to minimize potential resource conflicts between ROWs for proposed solar and wind energy generation facilities and other uses of the public lands. Under existing regulations, lands within a solar or wind energy generation ROW application or within an area identified by the BLM for such ROWs, unlike lands proposed for exchange or sale, remain open to appropriation under the public land laws, including location and entry under the Mining Law, while BLM is considering the ROW. Over the past 5 years, the BLM has processed 24 solar and wind energy development ROW applications. New mining claims were located on the public lands described in two of these proposed ROWs during the BLM's consideration of the applications. Many of the mining claims in the two proposed ROWs were not located until after the existence of the wind or solar ROW application or the identification of an area by the BLM for such ROWs became publicly known. In addition, over the past 2 years, 437 new mining claims were located within wind energy ROW application areas in Arizona, California, Idaho, Nevada, Oregon, Utah, and Wyoming and 216 new mining claims were located within solar energy ROW application areas. In the BLM's experience, some of these claims are likely to be valid, but others are likely to be speculative and not located for true mining purposes. As such, the latter are likely filed for no other purpose than to provide a means for the mining claimant to compel some kind of payment from the ROW applicant to relinquish the mining claim. The potential for such a situation exists because, while it is relatively easy and inexpensive to file a mining claim, it can be difficult, time-consuming, and costly to prove that the mining claim was not properly filed or does not contain a valid discovery. Regardless of the merits of a particular claim, the location of a mining claim in an area covered by a ROW application (or identified for such an application) creates uncertainty that interferes with the orderly administration of the public lands. This uncertainty makes it difficult for the BLM, energy project developers, and institutions that finance such development to proceed with such projects because a subsequently located mining claim potentially precludes final issuance of the ROW and increases project costs, jeopardizing the planned energy development. For example, the location of a new mining claim during the pendency of the BLM's review process for a ROW application could preclude the applicant from providing a concrete proposal for their use and occupancy of the public lands. This is because under the Mining Law, a ROW cannot materially interfere with a previously located mining claim. Since all properly located claims are treated as valid until proven otherwise, the filing of any mining claim can substantially delay the processing of a ROW application. As a result, a ROW applicant could either wait for the BLM to determine the validity of a claim, or the applicant could choose to modify or relocate its proposed surface use to avoid conflicts with the newly located mining claim, leading to additional expense, which could jeopardize the renewable energy project.\1\ The BLM's processing time for the ROW application could be significantly increased if any changes necessitated by the newly located mining claim require the BLM to undertake any additional analyses, such as those required by the National Environmental Policy Act, 42 U.S.C. 4321 et seq. (NEPA). Under these circumstances, the BLM's ability to administer the public lands in an orderly manner is impeded. --------------------------------------------------------------------------- \1\ This uncertainty may also discourage banks from financing such projects. --------------------------------------------------------------------------- This proposed rule is needed to provide the BLM with the necessary authority to ensure the orderly administration of the public lands and to prevent conflicts between competing uses of those lands. By allowing for temporary segregation, it would enable the BLM to prevent new resource conflicts from arising as a result of new mining claims that may be located within land covered by any pending or future wind or solar energy generation facility ROW applications, or public lands identified by the BLM for potential future wind or solar energy generation ROWs pursuant to its ROW regulations. Temporary segregation is generally sufficient because once a ROW has been authorized, subsequently located mining claims would be subject to the previously authorized use, and any future mining claimant would have notice of such use. The proposed rule would supplement the authority contained in 43 CFR subpart 2091 to allow the BLM to segregate from appropriation under the public land laws, including location under the Mining Law, but not the Mineral Leasing Act or the Materials Act, public lands included in a pending or future wind or solar energy generation ROW application or public lands identified by the BLM for a wind or solar energy generation ROW authorization under 43 CFR subpart 2804, subject to valid existing rights.\2\ This proposed rule would not affect valid existing rights in mining claims located before any segregation made pursuant to the final rule. The proposed rule also would not affect ROW applications for uses other than wind or solar energy generation facilities. --------------------------------------------------------------------------- \2\ The existing regulations define segregation as ``the removal for a limited period, subject to valid existing rights, of a specified area of the public lands from the operation of some or all of the public land laws, including the mineral laws, pursuant to the exercise by the Secretary of regulatory authority for the orderly administration of the public lands.'' 43 CFR 2091.0-5(b). --------------------------------------------------------------------------- Segregations under the proposed rule would be accomplished by publishing a notice in the Federal Register and would be effective upon the date of publication. The BLM considered a rule that would allow for segregation through notation to the public land records, but it rejected this approach because it would not provide the public [[Page 23232]] with the same level of notice that a Federal Register notice would accomplish. The proposed rule would provide for segregation periods of up to 2 years, with the option, if deemed necessary by the appropriate BLM State Director, to extend the segregation of the lands for up to an additional 2 years. The proposed rule would not authorize the BLM to continue the segregation after a final decision on a ROW has been made. Finally, not all wind or solar ROW applications would lead to a segregation, as the BLM may reject some applications and others may not require segregation because conflicts with mining claims are not anticipated. Segregation rules, like this proposed rule, have been held to be ``reasonably related'' to the BLM's broad authority to issue rules related to ``the orderly administration of the public land laws,'' \3\ because they allow the BLM to protect an applicant for an interest in such lands from ``the assertion by others of rights to the lands while the applicant is prevented from taking any steps to protect'' its interests because it has to wait for the BLM to act on its application.\4\ It is for this purpose that existing regulations at 43 CFR subpart 2091 provide the BLM with the discretion to segregate lands that are proposed for various types of land disposals, such as land sales, land exchanges, and transfers of public land to local governments and other entities under the Recreation and Public Purposes Act of 1926. These regulatory provisions allowing segregations were put in place over the years to prevent resource conflicts, including conflicts arising from the location of new mining claims, which could create encumbrances on the title of the public lands identified for transfer out of Federal ownership under the applicable authorities. --------------------------------------------------------------------------- \3\ See Bryon v. United States, 259 F. 371, 376 (9th Cir. 1919); Hopkins v. United States, 414 F.2d 464, 472 (9th Cir. 1969). \4\ See, e.g., Marian Q. Kaiser, 65 I.D. 485 (Nov. 25, 1958). --------------------------------------------------------------------------- Such a situation occurred in Nevada, and the proposed land purchaser chose to pay the mining claimant to relinquish his claims in order to enable the sale to go forward. In fact, in the land sales context, the segregative period was increased from 270 days to a maximum term of 4 years, as it was found that the original segregative period was insufficient and that conflicting mining claims were being located before sales could be completed. This proposed rule would provide the BLM the same flexibility it currently has for land disposals by allowing the BLM to temporarily segregate lands that are included in pending or future applications for solar and wind facility ROWs or on lands identified by the BLM for such ROWs. This would allow for the orderly administration of the public lands by eliminating the potential for conflicts with mining claims located after the BLM publishes a Federal Register notice of such ROW applications or areas. As noted above, the development of renewable energy is a high priority for the Department of the Interior and the BLM. The location of mining claims, however, under certain circumstances, may impede the BLM's ability to administer the public lands in an orderly manner and to carry out its Congressional and Executive mandate to facilitate renewable energy development on those lands because the BLM currently lacks the ability to maintain the status quo on such lands while it is processing a ROW application for a wind or solar energy generation facility. This proposed rule would help the BLM maintain the status quo and prevent potential resource use conflicts by allowing the BLM to temporarily segregate lands being considered for a wind or solar energy generation facility. III. Section-by-Section Analysis This proposed rule would revise 43 CFR sections 2091.3-1 and 2804.25 by adding language that would allow the BLM to segregate lands, if the BLM determines it to be necessary for the orderly administration of the public lands. This authority to segregate lands would be limited to lands included in a pending or future wind or solar energy ROW application, or public lands identified by the BLM for a wind or solar energy generation ROW authorization under the BLM's ROW regulations. If segregated under this rule, such lands, during the limited segregation period, would not be subject to appropriation under the public land laws, including location under the Mining Law, but not the Mineral Leasing Act or the Materials Act, subject to valid existing rights. The new language also specifies that the segregative effect terminates and the lands would automatically reopen to appropriation under the public land laws, including the mining laws: (1) Upon the BLM's issuance of a decision regarding whether to issue a ROW authorization for the solar or wind energy generation proposal; (2) Upon publication of a Federal Register notice of termination of the segregation; or (3) Without further administrative action at the end of the segregation period provided for in the Federal Register notice initiating the segregation, whichever occurs first. The segregation would be effective for a period of up to 2 years; however, the rule provides that the segregation may be extended for an additional 2 years if the appropriate BLM State Director determines and documents in writing, prior to the expiration of the segregation, that an extension of the segregation is necessary for the orderly administration of the public lands. The BLM would publish an extension notice in the Federal Register, if it determines that an extension of the segregation is necessary. The extension of the segregation would not be for more than 2 years. The maximum total segregation period would not exceed 4 years. IV. Procedural Matters Executive Order 12866, Regulatory Planning and Review This proposed rule is not a significant regulatory action \5\ and is not subject to review by the Office of Management and Budget under Executive Order 12866. The proposed rule would provide the BLM with regulatory authority to segregate public lands included within a pending or future wind or solar energy generation ROW application, or public lands identified by the BLM for a potential future wind or solar energy generation ROW authorization, from appropriation under the public land laws, including location under the Mining Law, but not the Mineral Leasing Act or the Materials Act, if the BLM determines that segregation is necessary for the orderly administration of the public lands. To assess the potential economic impacts, the BLM must first make some assumptions concerning when and how often this segregation authority may be exercised. The purpose of any segregation would be to allow for the orderly administration of the public lands to facilitate the development of renewable energy resources by avoiding conflicts between renewable energy development and the location of mining claims. --------------------------------------------------------------------------- \5\ ``Significant regulatory action'' means any regulatory action that is likely to result in a rule that may: (1) Have an annual effect on the economy of $100 million or more or adversely effect in a material way the economy * * *; (2) Create a serious inconsistency or otherwise interfere with an action taken or planned by another agency; (3) Materially alter the budgetary impact of entitlements, grants, user fees, or loan programs * * * or (4) Raise novel legal and policy issues arising out of legal mandates, the President's priorities, or * * * this Executive Order.'' Exec. Order No. 12866, 58 FR 51738 (Oct. 4, 1993). --------------------------------------------------------------------------- Wind--Wind energy ROW site testing and development applications are widely scattered in many western states. Most of the public lands with pending [[Page 23233]] wind energy ROW applications are currently managed for multiple resource use, including being open to mineral entry under the mining laws. Over the past 2 fiscal years, 437 new mining claims were located within wind energy ROW application areas in Arizona, California, Idaho, Nevada, Oregon, Utah, and Wyoming. Based on the BLM's recent experience processing wind energy ROW applications, it is anticipated that approximately 25 percent of the lands with current wind energy ROW applications will reach the processing stage where a Notice of Intent (NOI) is issued. Without trying to identify specific locations of new mining claims located within those application areas, we assume a quarter of those new mining claims, or 109 new mining claims, would be located within wind application areas that would be segregated under this new regulation. The actual number of claimants affected will likely be less than this estimate since a single claimant typically files and holds multiple mining claims. Of the 437 new mining claims filed within the wind energy ROW application areas in fiscal year (FY) 2009 and 2010, there was an average of about eight mining claims per claimant. Assuming that there was nothing unique about the number of claims and distribution of claims per claimant for FY 2009 and 2010, we estimate that 14 entities would be potentially precluded from filing new mining claims on lands that would be segregated within the identified wind energy ROW application areas under this rule. For these entities, the economic impacts of the segregation are the delay in when they could locate their mining claims and a potential delay in the development of such claims because such development would be subject to any approved ROW issued during the segregative period. However, a meaningful estimate of the value of such delays is hard to quantify given the available data because it depends on the validity and commercial viability of any individual claim, and the fact that the location of a mining claim is an early step in a long process that may eventually result in revenue generating activity for the claimant. The other situation where entities might be affected by the segregation provision is if a new Plan of Operations or Notice is filed with the BLM during the 2-year segregation period. In such a situation, the BLM has the discretion under the Surface Management Regulations (43 CFR subpart 3809) to require the preparation of a mineral examination report to determine if the mining claims were valid before the lands were segregated before it processes the Plan of Operations or accepts the filed Notice. If required, the operator is responsible to pay the cost of the examination and report. Within the past 2-year period, five Plans of Operations and two Notices were filed with the BLM within wind ROW application areas. Assuming (1) A quarter of those filings would be on lands segregated under this rule, (2) the number of Plan and Notice filings received in the past 2 years is somewhat reflective of what might occur within a 2- year segregation period, and (3) the BLM would require mineral examination reports to determine claim validity on all Plans and Notices filed within the segregation period, we estimate two entities might be affected by this rule change.\6\ --------------------------------------------------------------------------- \6\ With respect to any particular Plan of Operation or Notice that might be filed in areas segregated under the rule, the BLM would separately determine, on a case-by-case basis and consistent with the requirements of 43 CFR 3809.100(a), whether to require a validity determination for such Plan or Notice. --------------------------------------------------------------------------- Should the BLM require the preparation of mineral examination reports to determine claim validity, the entity filing the Plan or Notice would be responsible for the cost of making that validity determination. Understanding that every mineral examination report is unique and the costs vary accordingly, we assume an average cost of $100,000 to conduct the examination and prepare the report. Based on the number of Plans and Notices filed within the wind energy right-of- way application areas in FY 2009 and 2010, we estimate the total cost of this provision could be about $200,000 over the 2-year period. Solar--As noted above, the primary purpose of any segregation under this proposed rule would be to allow for the orderly administration of the public lands to facilitate the development of valuable renewable resources and to avoid conflicts between renewable energy generation and mining claim location. The main resource conflict of concern involves mining claims that are located after the first public announcement that the BLM is evaluating a ROW application, and prior to when the BLM issues a final decision on the ROW application. Most of the public lands with pending solar energy ROW applications are currently managed for multiple resource use, including mineral entry under the mining laws. Where the BLM segregates lands from mineral entry, claimants would not be allowed to locate any new mining claims during the 2-year segregation period. Over the past 2 years, 216 new mining claims were located within solar energy ROW application areas. Based on the BLM's recent experience processing solar energy ROW applications, it is anticipated that approximately 25 percent of the lands with current solar energy ROW applications would reach the processing stage where a NOI is issued. Without trying to identify which ROWs would be granted or the specific locations of new mining claims within those application areas, we assume a quarter of those new mining claims, or 54 new mining claims, would be located within solar ROW application areas that would be segregated under this rule. The actual number of claimants affected will likely be less than this estimate since a single claimant typically locates and holds multiple mining claims. Of the 216 new mining claims located within solar energy ROW application areas in the past 2 years, there was an average of about eight mining claims per claimant. Assuming that there was nothing unique about the number and distribution of claims per claimant for the past 2 years, we estimate seven entities would potentially be precluded from locating new mining claims on lands segregated within the identified solar energy ROW application areas under the rule change. For these entities the economic impacts of the segregation would be the delay in when they can locate their mining claim and a potential delay in the development of such claim because such development would be subject to any approved ROW issued during the segregative period. However, a meaningful estimate of the value of such delays is hard to quantify given the available data because it depends on the validity and commercial viability of any individual claim, and the fact that the location of a mining claim is an early step in a long process that may eventually result in revenue generating activity for the claimant. The other situation where entities might be affected by the proposed segregation provisions is where a new Plan of Operations or Notice is filed with the BLM during the 2-year segregation period. In such a situation, the BLM has the discretion under the Surface Management Regulations (43 CFR subpart 3809) to require a mineral examination to determine if the mining claims were valid before the lands were segregated before it approves the Plan of Operations or accepts the filed Notice. If required, the operator is responsible to pay the cost of the examination and report. Within the past 2-year period, two Plans of Operations and two Notices were filed with the BLM within solar [[Page 23234]] ROW application areas. Assuming (1) a quarter of those filings would be on lands segregated under this rule, (2) the number of Plan and Notice filings received in the past 2 years is reflective of what might occur within a 2-year segregation period, and (3) the BLM would require mineral examination reports to determine claim validity on all Plans and Notices filed within the segregation period, we estimate one entity might be affected by this rule change.\7\ --------------------------------------------------------------------------- \7\ With respect to any particular Plan of Operation or Notice that might be filed in areas segregated under the rule, the BLM would separately determine, on a case-by-case basis and consistent with the requirements of 43 CFR 3809.100(a), whether to require a validity determination for such Plan or Notice. --------------------------------------------------------------------------- Should the BLM require a mineral examination to determine claim validity, the entity filing the Plan or Notice would be responsible for the cost of making that validity determination. Understanding that every mineral examination report is unique and the costs would vary accordingly, we assume an average cost of $100,000 to conduct the examination and prepare the report. Based on the number of Plans and Notices filed within the solar energy ROW application areas in the past 2 years, we estimate the total cost of this provision could be about $100,000 over the 2-year period. It is not possible to estimate the number of future rights-of-way for wind or solar energy developments that could be filed on areas identified as having potential for either of these sources of energy. This is because there are many variables that could have an impact on such filings. Such variables include: the quantity and sustainability of wind at any one site, the intensity and quantity of available sunlight, the capability of obtaining financing for either wind or solar energy projects, the proximity of transmission facilities that could be used to carry the power generated from a specific wind or solar energy right-of-way project, and the topography of the property involved. The number of mining claims would also be based on speculation as to the mineral potential of an area, access to markets, potential for profitability, and a host of other geologic factors, such as type of mineral, depth of the mineral beneath the surface, quantity and quality of the mineral, and other such considerations. Based on this analysis, the BLM concludes that this proposed rule would not have an annual effect of $100 million or more on the economy. It would not adversely affect in a material way the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or Tribal governments or communities. This proposed rule would not create a serious inconsistency or otherwise interfere with an action taken or planned by another agency. This proposed rule would not alter the budgetary effects of entitlements, grants, user fees or loan programs or the rights or obligations of their recipients; nor would it raise novel legal or policy issues. The full economic analysis is available at the office listed under the ADDRESSES section of this preamble. Clarity of the Regulation Executive Order 12866 requires each agency to write regulations that are simple and easy to understand. The BLM invites your comments on how to make this proposed rule easier to understand, including answers to questions such as the following: 1. Are the requirements in the proposed rule clearly stated? 2. Does the proposed rule contain technical language or jargon that interferes with its clarity? 3. Does the format of the proposed rule (grouping and order of sections, use of headings, paragraphing, etc.) aid or reduce its clarity? 4. Would the regulations be easier to understand if they were divided into more (but shorter) sections? 5. Is the description of the proposed rule in the SUPPLEMENTARY INFORMATION section of this preamble helpful in understanding the proposed rule? How could this description be more helpful in making the proposed rule easier to understand? Please send any comments you have on the clarity of the regulations to the address specified in the ADDRESSES section. National Environmental Policy Act The BLM has determined that this proposed rule is administrative in nature and involves only procedural changes addressing segregation requirements. This proposed rule would result in no new surface disturbing activities and therefore would have no effect on ecological or cultural resources. Potential effects from associated wind and/or solar ROWs would be analyzed as part of the site-specific NEPA analysis for those activities. In promulgating this rule, the government is conducting routine and continuing government business of an administrative nature having limited context and intensity. Therefore, it is categorically excluded from environmental review under section 102(2)(C) of NEPA, pursuant to 43 CFR 46.205. The proposed rule does not meet any of the extraordinary circumstances criteria for categorical exclusions listed at 43 CFR 46.215. Pursuant to Council on Environmental Quality regulation (40 CFR 1508.4) and the environmental policies and procedures of the Department, the term ``categorical exclusion'' means a category of actions which do not individually or cumulatively have a significant effect on the human environment and which have been found to have no such effect on procedures adopted by a Federal agency and for which, therefore, neither an environmental assessment nor an environmental impact statement is required. Regulatory Flexibility Act The Congress enacted the Regulatory Flexibility Act (RFA) of 1980, as amended, 5 U.S.C. 601-612, to ensure that Government regulations do not unnecessarily or disproportionately burden small entities. The RFA requires a regulatory flexibility analysis if a rule would have a significant economic impact, either detrimental or beneficial, on a substantial number of small entities. The RFA requires agencies to analyze the economic impact of regulations to determine the extent to which there is anticipated to be a significant economic impact on a substantial number of small entities. We anticipate that the proposed rule could potentially affect a few entities that might otherwise have located new mining claims on public lands covered by a wind or solar energy facility ROW application currently pending or filed in the future. We further anticipate that most of these entities would be small entities as defined by the Small Business Administration; however, we do not expect the potential impact to be significant. Therefore, the BLM has determined under the RFA that this proposed rule would not have a significant economic impact on a substantial number of small entities. A copy of the analysis that supports this determination is available at the office listed under the ADDRESSES section of this preamble. Small Business Regulatory Enforcement Fairness Act For the same reasons as discussed under the Executive Order 12866, Regulatory Planning and Review section of this preamble, this proposed rule is not a ``major rule'' as defined at 5 U.S.C. 804(2). That is, it would not have an annual effect on the economy of $100 million or more; it would not result in major cost or price increases for consumers, industries, government agencies, or regions; and it would not [[Page 23235]] have significant adverse effects on competition, employment, investment, productivity, innovation, or the ability of U.S.-based enterprises to compete with foreign-based enterprises. A copy of the analysis that supports this determination is available at the office listed under the ADDRESSES section of this preamble. Unfunded Mandates Reform Act This proposed rule would not impose an unfunded mandate on State, local, or Tribal governments, in the aggregate, or the private sector of $100 million or more per year; nor would it have a significant or unique effect on State, local, or Tribal governments. The rule would impose no requirements on any of these entities. Therefore, the BLM does not need to prepare a statement containing the information required by the Unfunded Mandates Reform Act (2 U.S.C. 1531 et seq.). Executive Order 12630, Governmental Actions and Interference With Constitutionally Protected Property Rights (Takings) This proposed rule is not a government action that interferes with constitutionally protected property rights. This proposed rule would set out a process, by publication of a notice in the Federal Register, that could be used to segregate public lands included within a pending or future solar or wind energy generation ROW application, or public lands identified by the BLM for a potential future wind or solar energy generation ROW authorization. This segregation would remove public lands from the operation of the public land laws, including the location of new mining claims under the Mining Law, but not the Mineral Leasing Act or the Materials Act for a period of up to 2 years, with the authority to extend the segregation for up to an additional 2-year period, in order to promote the orderly administration of the public lands. Because any segregation under this proposed rule would be subject to valid existing rights, it does not interfere with constitutionally protected property rights. Therefore, the Department has determined that this proposed rule does not have significant takings implications and does not require further discussion of takings implications under this Executive Order. Executive Order 13132, Federalism The proposed rule would not have a substantial direct effect on the States, or the relationship between the national government and the States, or on the distribution of power and responsibilities among the levels of government. It would not apply to States or local governments or State or local government entities. Therefore, in accordance with Executive Order 13132, the BLM has determined that this proposed rule does not have sufficient Federalism implications to warrant preparation of a Federalism Assessment. Executive Order 12988, Civil Justice Reform Under Executive Order 12988, the BLM has determined that this proposed rule would not unduly burden the judicial system and that it meets the requirements of sections 3(a) and 3(b)(2) of the Order. Executive Order 13175, Consultation and Coordination With Indian Tribal Governments In accordance with Executive Order 13175, the BLM has found that this proposed rule does not include policies that have Tribal implications. This rule would apply exclusively to lands administered by the BLM. It would not be applicable to and would have no bearing on trust or Indian lands or resources, or on lands for which title is held in fee status by Indian Tribes, or on U.S. Government-owned lands managed by the Bureau of Indian Affairs. Information Quality Act In developing this proposed rule, the BLM did not conduct or use a study, experiment, or survey requiring peer review under the Information Quality Act (Section 515 of Pub. L. 106-554). Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use In accordance with Executive Order 13211, the BLM has determined that this proposed rule is not likely to have a significant adverse effect on energy supply, distribution, or use, including a shortfall in supply, price increase, or increased use of foreign supplies. The BLM's authority to segregate lands under this rule would be of a temporary nature for the purpose of encouraging the orderly administration of public lands, including the generation of electricity from wind and solar resources on the public lands. Any increase in energy production as a result of this rule from wind or solar sources is not easily quantified, but the proposed rule is expected to relieve obstacles and hindrances to energy development on public lands. Executive Order 13352--Facilitation of Cooperative Conservation In accordance with Executive Order 13352, the BLM has determined that this proposed rule would not impede the facilitation of cooperative conservation. The rule takes appropriate account of and respects the interests of persons with ownership or other legally recognized interests in land or other natural resources; properly accommodates local participation in the Federal decision-making process; and provides that the programs, projects, and activities are consistent with protecting public health and safety. Paperwork Reduction Act The proposed rule does not contain information collection requirements that the Office of Management and Budget must approve under the Paperwork Reduction Act of 1995. Author The principal author of this rule is Jeff Holdren, Realty Specialist, Division of Lands and Realty, assisted by the Division of Regulatory Affairs, Washington Office, Bureau of Land Management, Department of the Interior. List of Subjects 43 CFR Part 2090 Airports; Alaska; Coal; Grazing lands; Indian lands; Public lands; Public lands--classification; Public lands--mineral resources; Public lands--withdrawal; Seashores. 43 CFR Part 2800 Communications; Electric power; Highways and roads; Penalties; Pipelines; Public lands--rights-of-way; Reporting and recordkeeping requirements. For the reasons stated in the preamble and under the authorities stated below, the BLM proposes to amend 43 CFR parts 2090 and 2800 as follows: Subchapter B--Land Resource Management (2000) PART 2090--SPECIAL LAWS AND RULES 1. The authority citation for part 2090 continues to read as follows: Authority: 43 U.S.C. 1740. Subpart 2091--Segregation and Opening of Lands 2. Amend Sec. 2091.3-1 by adding a new paragraph (e) to read as follows: Sec. 2091.3-1 Segregation * * * * * [[Page 23236]] (e)(1) The Bureau of Land Management may segregate, if it finds it to be necessary for the orderly administration of the public lands, lands included in a right-of-way application for the generation of electrical energy under 43 CFR subpart 2804 from wind or solar sources. In addition, the Bureau of Land Management may also segregate public lands that it identifies for potential rights-of-way for electricity generation from wind or solar sources. Upon segregation, such lands will not be subject to appropriation under the public lands laws, including location under the General Mining Law, but not the Mineral Leasing Act of 1920 (30 U.S.C. 181 et seq.) or the Materials Act of 1947 (30 U.S.C. 601 et seq.). The Bureau of Land Management will effect such segregation by publishing a Federal Register notice that includes a description of the lands covered by the segregation. The Bureau of Land Management may impose a segregation in this way on both pending and new right-of-way applications. (2) The effective date of segregation is the date of publication of the notice in the Federal Register and the date of termination of the segregation is the date that is the earliest of the following: (i) Upon issuance of a decision by the authorized officer granting, granting with modifications, or denying the application for a right-of- way; (ii) Automatically at the end of the segregation period provided for in the Federal Register notice initiating the segregation, without further action by the authorized officer; or (iii) Upon publication of a Federal Register notice of termination of the segregation. (3) The segregation period may not exceed 2 years from the date of publication of the Federal Register notice initiating the segregation unless, on a case-by-case basis, the Bureau of Land Management State Director determines and documents in writing, prior to the expiration of the segregation period, that an extension is necessary for the orderly administration of the public lands. If an extension is determined to be necessary, the Bureau of Land Management will publish a notice in the Federal Register, prior to expiration of the initial segregation period that the segregation is being extended for up to 2 years. Only one extension may be authorized; the total segregation period therefore cannot exceed 4 years. PART 2800--RIGHTS-OF-WAY UNDER THE FEDERAL LAND POLICY AND MANAGEMENT ACT 3. The authority citation for part 2800 continues to read as follows: Authority: 43 U.S.C. 1733, 1740, 1763, and 1764. Subpart 2804--Applying for FLPMA Grants 4. Amend Sec. 2804.25 by adding a new paragraph (e) to read as follows: Sec. 2804.25 How will BLM process my application? * * * * * (e)(1) The BLM may segregate, if it finds it to be necessary for the orderly administration of the public lands, lands included within a right-of-way application under 43 CFR subpart 2804 for the generation of electricity from wind or solar sources. In addition, the BLM may segregate public lands that it identifies for potential rights-of-way for electricity generation from wind or solar sources under the BLM's right-of-way regulations. Upon segregation, such lands will not be subject to appropriation under the public land laws, including location under the General Mining Law, but not from the Mineral Leasing Act of 1920 (30 U.S.C. 181 et seq.) or the Materials Act of 1947 (30 U.S.C. 601 et seq.). The BLM will effect such segregation by publishing a Federal Register notice that includes a description of the lands covered by the segregation. The Bureau of Land Management may impose a segregation in this way on both pending and new right-of-way applications. (2) The segregative effect of the Federal Register notice terminates on the date that is the earliest of the following: (i) Upon issuance of a decision by the authorized officer granting, granting with modifications, or denying the application for a right-of- way; (ii) Automatically at the end of the segregation period provided for in the Federal Register notice initiating the segregation, without further action by the authorized officer; or (iii) Upon publication of a Federal Register notice of termination of the segregation. (3) The segregation period may not exceed 2 years from the date of publication of the Federal Register notice initiating the segregation unless, on a case by case basis, the BLM State Director determines and documents in writing, prior to the expiration of the segregation period, that an extension is necessary for the orderly administration of the public lands. If an extension is determined to be necessary, the BLM will publish a notice in the Federal Register, prior to expiration of the initial segregation period that the segregation is being extended for up to 2 years. Only one extension may be authorized; the total segregation period therefore cannot exceed 4 years. Dated: April 6, 2011. Wilma A. Lewis, Assistant Secretary of the Interior, Land and Minerals Management. [FR Doc. 2011-10017 Filed 4-25-11; 8:45 am] BILLING CODE 4310-84-P
The United States Supreme Court today ensured that consumers will continue to be able to enter into contracts with companies to arbitrate any future disputes that will arise. Individual consumer arbitration speedily resolves disputes in an informal forum, providing benefits to consumers and businesses alike. Today's decision ensures that these consumers and businesses cannot be forced into inefficient, expensive, and time-consuming class action procedures when they agreed to proceed on an individual basis.
Today's environmental tip: Everyone can make a difference! High school students can study links between everyday actions at their high school, greenhouse gas emissions, and climate change. Become a "climate ambassador" leader in your school or neighborhood and motivate friends, schools, and community leaders. Talk to you friends - help spread the word!
en español: ¡Todos pueden hacer una diferencia! Los estudiantes de escuela superior pueden estudiar los vínculos entre las acciones cotidianas en sus colegios, las emisiones con efecto de gas invernadero y el cambio climático. Conviértase en un embajador climático en su colegio o vecindario. Motive a sus amigos, colegios, y líderes comunitarios. ¡Dígale a sus amigos que ayuden a correr la voz!
Want more tips? Visit EPA's Earth Day site to learn more about Earth Day, the US Environmental Protection Agency, and what you can do to help protect human health and the environment. http://www.epa.gov/earthday/tips2.htm
Subject:
Water News Release (HQ): Obama Administration Affirms Comprehensive Commitment to Clean Water
Obama Administration Affirms Comprehensive Commitment to Clean Water
WASHINGTON – Recognizing the importance of clean water and healthy watersheds to our economy, environment and communities, the Obama administration released a national clean water framework today that showcases its comprehensive commitment to protecting the health of America's waters. The framework emphasizes the importance of partnerships and coordination with states, local communities, stakeholders and the public to protect public health and water quality, and promote the nation's energy and economic security.
For nearly 40 years, the Clean Water Act, along with other important federal measures, has been a cornerstone of our effort to ensure that Americans have clean and healthy waters. The administration's framework outlines a series of actions underway and planned across federal agencies to ensure the integrity of the waters Americans rely on every day for drinking, swimming, and fishing, and that support farming, recreation, tourism and economic growth. It includes draft federal guidance to clarify which waters are protected by the Clean Water Act nationwide; innovative partnerships and programs to improve water quality and water efficiency; and initiatives to revitalize communities and economies by restoring rivers and critical watersheds.
“Clean water and healthy waterways are vital to the health and vibrancy of our communities and the strength of our economy,” said Nancy Sutley, chair of the White House Council on Environmental Quality. “Working with our partners across communities, governments and sectors, we are taking comprehensive action to ensure Americans have the clean and healthy waters they need and deserve.”
”The steps we're outlining today will be instrumental to protecting the waters of the United States, and ensuring that the vital natural resources our communities depend on for their health and their economy are safeguarded for generations to come,” said EPA Administrator Lisa P. Jackson. “After four decades of progress on clean water, there is still work to be done to address unfinished business and tackle new threats to our waters. American families and businesses are counting on us to maintain and improve the rivers, lakes, streams and other waters that support thousands of communities and millions of jobs across the country.”
"Healthy rivers and clean waters are fundamental to our economy, our health, and our way of life," said Secretary of the Interior Ken Salazar. "With growing pressures on our natural systems, we must work to secure cleaner, safer, and more reliable water supplies for our communities."
“As our nation's foremost conservationists, farmers, ranchers and forest owners have a values system rooted in rural America that recognizes we cannot continue to take from the land without giving something back,” said Agriculture Secretary Tom Vilsack. “At USDA, we are working with farmers, ranchers and forest owners to conserve land, plant stream buffers for cleaner water, and install other conservation practices. We also will continue to invest in rural water and community facility projects that help small towns ensure their citizens have access to safe and reliable drinking water. The draft Clean Water Act guidance released today reflects USDA's work with our federal partners by maintaining existing exemptions for ongoing agricultural and forestry activities, thereby providing farmers, ranchers and forest landowners with certainty that current agricultural and forestry activities can continue.”
"The Army is very proud of our ecosystem restoration efforts across the nation,” said Assistant Secretary of the Army for Civil Works Jo-Ellen Darcy. “The proposed joint EPA and Army guidance will clarify Clean Water Act jurisdiction and help the Corps and its partner agencies protect important aquatic resources and watersheds that communities rely on for their quality of life and essential services."
Clean water provides critical health, economic and livability benefits to American communities. Since 1972, the Clean Water Act has kept billions of pounds of pollution out of American waters, doubling the number of waters that meet safety standards for swimming and fishing. Despite the dramatic progress in restoring the health of the nation's waters, an estimated one-third of American waters still do not meet the swimmable and fishable standards of the Clean Water Act. Additionally, new pollution and development challenges threaten to erode our gains, and demand innovative and strong action in partnership with federal agencies, states, and the public to ensure clean and healthy water for American families, businesses, and communities.
The Obama administration is safeguarding clean water by:
Promoting Innovative Partnerships
Federal agencies are partnering with states, tribes, local governments and diverse stakeholders on innovative approaches to restore urban waters, promote sustainable water supplies, and develop new incentives for farmers to protect clean water.
Enhancing Communities and Economies by Restoring Important Water Bodies
The Obama administration is dedicating unprecedented attention to restoring iconic places like the Chesapeake Bay, California Bay-Delta, Great Lakes, Gulf of Mexico and Everglades, investing in action and helping states, local governments and stakeholders find pollution control solutions that are tailored to their specific needs.
Innovating for More Water Efficient Communities
The administration is working with policymakers, consumers, farmers and businesses to save water – and save money – through 21 st century water management policies and technology.
Ensuring Clean Water to Protect Public Health
The Obama administration is aggressively pursuing new ways to protect public health by reducing contaminants in Americans' drinking water. We are updating drinking water standards, protecting drinking water sources, modernizing the tools available to communities to meet their clean water requirements, and providing affordable clean water services in rural communities.
Enhancing Use and Enjoyment of our Waters
The administration is promoting stewardship of America's waters through innovative programs and partnerships. These efforts include expanding access to waterways for recreation, protecting rural landscapes, and promoting public access to private lands for hunting, fishing and other recreational activities.
Updating the Nation's Water Policies
The administration is strengthening protection of America's waters and American communities. We are modernizing water resources guidelines, and updating federal guidance on where the Clean Water Act applies nationwide. The draft guidance will protect waters that many communities depend upon for drinking, swimming, and fishing, and provide clearer, more predictable guidelines for determining which water bodies are protected from pollution under the Clean Water Act. The guidance is open for 60 days of public comment to all allow all stakeholders to provide input and feedback before it is finalized.
Supporting Science to Solve Water Problems
The administration is using the latest science and research to improve water policies and programs and identify and address emerging pollution challenges.
More information and to read the Obama administration's clean water framework:
Two accounts in the Treasury may be available to GSA: the Land and Water Conservation Fund, 16 U.S.C. sect. 460 l -5(a), or the Federal Buildings Fund, Transportation, Treasury, Independent Agencies, and General Government Appropriations Act, 2005, Pub. L. No. 108-447, div. H, sect. 412, 118 Stat. 2809, 3199, 3259 (Dec. 8, 2004).
Neither GSA nor BLM has authority to use the sales proceeds of surplus federal property to purchase public lands. BLM augmented its appropriation when it improperly used the proceeds of sales of surplus federal real property to fund the acquisition of land in the Dixon transactions. To rectify this situation, BLM should adjust its accounts by transferring funds from a BLM account available to acquire lands in the Dixon transactions to the appropriate account in the Treasury designated by GSA. GSA should designate the fund in the Treasury that should have received the proceeds of the land sales, since the sales were under GSA's authority. If BLM finds that it lacks sufficient budget authority to cover the adjustment, it should report a violation of the Antideficiency Act in accordance with 31 U.S.C. sect. 1351. [25]
BLM's expansive interpretation of its authority would give it wide latitude to carry out land sales and purchases without adhering to the proper safeguards that Congress specified in BLM's authorizing statutes. These safeguards help ensure not only that the government receives fair value when public lands are sold, but also that the public lands are managed in a manner that protects the public interest. BLM argues that an "exchange" transaction may span over ten years and include routine payments of cash between the government and private parties, while featuring individual transactions that BLM itself described as being a "purchase" or a "sale." In some "purchases," as BLM itself called the transactions, BLM stated that it paid amounts "as full consideration for the purchase of the subject property."
BLM's interpretation of its authority stretches the meaning of its authorizing statutes and of common words such as "exchange" beyond plausible boundaries. BLM has entered into complex multiphase, multiparty land transactions that rely on a legal interpretation of its exchange authority that is fundamentally flawed. BLM has statutory authority to purchase land and to sell land while following specific procedures. BLM cannot avoid these procedures by simply labeling a series of purchases and sales as being an "exchange." BLM's actions circumvent the carefully crafted statutory framework governing the sale, purchase, and exchange of public land—a framework designed to protect the public interest—while also violating longstanding statutes that Congress enacted to protect its constitutional power of the purse.
The lack of a single, Agency-wide plan results in poor coordination and limited oversight, and may lead to an ineffective use of resources. As a result, EPA cannot (1) ensure that consistent solid waste management assistance is provided, (2) accurately determine the risks of open dumps, or
(3) determine whether efforts are effective nationwide.
We recommend that the EPA Deputy Administrator develop an Agency-wide plan to implement consistent and effective tribal solid waste management capacity assistance. We recommend that this single plan outlines the roles and responsibilities of EPA program offices and regions, and identifies the Agency resources required for these activities. The plan should also implement output and outcome measures that track how consistently and effectively EPA activities are provided for tribes. Further, this plan should include (1) internal controls to ensure consistent data collection, (2) a process to ensure coordination between EPA program offices and regions, and (3) a timeline specifying when the activities and outcomes outlined in the plan are expected to be accomplished. OIG, March 21, 2011.
Rainy day funds explained: How much money should states have in the bank?
Stateline
In the many states that have emptied or nearly emptied their reserve funds — or never placed much money in them to begin with — serious discussion is taking place over how and when to begin saving for the rainy days of the future
An absence of facts required for conviction under a criminal statute. For example, a defendant accused of robbery who never illegally took anyone's property is actually innocent of the charge.
Overview
Defendants often claim actual innocence when appealing criminal convictions. To prove actual innocence, the defendant must submit additional evidence that undermines the court's confidence in the verdict reached by the trier of fact. Appellate rules normally require that this evidence must not have been available to the defendant at the time of the trial.
Caselaw
"A finding of actual innocence, as that term has come to be used in federal habeas corpus jurisprudence, is not the equivalent of a finding of not guilty by a jury or by a court in a bench trial.” Lambert v. Blackwell, 134 F.3d 506, 509 (3d Cir. 1997). House v. Bell 311 F.3d 767; 2002 U.S. App. LEXIS 23930; 2002 FED App. 0406P (6th Cir.)
Contacts:
James Phillips, Ocean Salmon Project, (707) 576-2375
Andrew Hughan, DFG Office of Communications, (916) 322-8944
For recreational fishing enthusiasts, springtime is in the air — and this year, in the water as well. Saturday, April 2 is opening day for salmon fishing in ocean waters off most of California and for the first time in many years the forecast suggests anglers may have many a tight line to look forward to.
Both the California Fish and Game Commission (FGC) and the Pacific Fishery Management Council (PFMC) approved the April 2 opening date based on scientific information suggesting that the Sacramento River Fall Chinook ocean population size is more than 700,000 fish — almost triple last year's forecast.
“We are cautiously optimistic that Sacramento River salmon stocks have recovered to the point that fisheries this year — our California sport and commercial ocean fisheries as well as river fisheries — can be sustained while still being confident that enough fish will return to natural spawning grounds and hatcheries to reproduce next fall,” said the Department of Fish and Game's (DFG) Marija Vojkovich, who represents the state of California on the Pacific Fishery Management Council.
The April 2 opening date applies to waters south of Horse Mountain (near Cape Mendocino) southward to the U.S.-Mexico border. For waters north of Horse Mountain to the California-Oregon border, the opening date will be determined in mid-April, but is anticipated to be a date in May.
When the 2011 recreational season is open off California, salmon fishing is allowed seven days per week, the minimum size limit is 24-inches total length, and the bag and possession limit is two fish per person. The retention of coho salmon and steelhead remains prohibited in all ocean fisheries.
Sacramento River fall chinook generally comprise 80 to 90 percent of the salmon catch in ocean waters off California. Therefore, the forecast for this stock plays a crucial role in determining when and where fishing opportunities can be provided. In 2008 and 2009, virtually no fishing was allowed because of low abundance forecasts and poor returns of fish to the Sacramento River Basin. Fishing in 2010 was also constrained for the same reasons.
Approximately 125,300 adult fall Chinook returned to the Sacramento River Basin in the fall of 2010, exceeding the minimum goal of 122,000 adult fish. In 2009, the return of adult Sacramento River Fall Chinook salmon was an all-time low of approximately 39,500 fish. The 2010 return is the highest observed since 2006.
Most charter boat operators no longer carry one-day licenses for purchase. DFG reminds anglers to purchase their license ahead of time at one of approximately 1,500 license agent locations or online at www.dfg.ca.gov/licensing/ .
A decidedly wet year has led Gov. Jerry Brown to proclaim an end to California's drought. Yea!
It will take time for the effect of new regulations and rules to reach the San Diego County Water Authority and the two dozen retail agencies in our county.
For agricultural customers on alternative pricing systems with mandatory reductions, Brown's declaration may mean a greater supply and bigger crops.
For consumers, it may mean less guilt in sprinkling the lawn or washing the car. But with the wholesale price of treated water here up 70 percent the last five years, such indulgences have a cost.
County residents should take pride in reducing water use 38 percent over four years. But we must keep on in this vein.
“In arid Southern California,” said Dennis Cushman of the county water authority, “we're always just one year away from the next one-year drought or the first year of a multiyear drought.”
He's right – so don't stop conserving.
16 U.S.C. § 1861a : US Code - Section 1861A: Transition to sustainable fisheries
16 U.S.C. § 1861b : US Code - Section 1861B: Fisheries enforcement plans and reporting
16 U.S.C. § 1862 : US Code - Section 1862: North Pacific fisheries conservation
16 U.S.C. § 1863 : US Code - Section 1863: Northwest Atlantic Ocean Fisheries Reinvestment Program
A BILL To amend the Federal Water Pollution Control Act to preserve the authority of each State to make determinations relating to the State's water quality standards, and for other purposes. Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, SECTION 1. SHORT TITLE. This Act may be cited as the ``Clean Water Cooperative Federalism Act of 2011''. SEC. 2. STATE WATER QUALITY STANDARDS. (a) State Water Quality Standards.--Section 303(c)(4) of the Federal Water Pollution Control Act (33 U.S.C. 1313(c)(4)) is amended-- (1) by redesignating subparagraphs (A) and (B) as clauses (i) and (ii), respectively; (2) by striking ``(4)'' and inserting ``(4)(A)''; (3) by striking ``The Administrator shall promulgate'' and inserting the following: ``(B) The Administrator shall promulgate''; and (4) by adding at the end the following: ``(C) Notwithstanding subparagraph (A)(ii), the Administrator may not promulgate a revised or new standard for a pollutant in any case in which the State has submitted to the Administrator and the Administrator has approved a water quality standard for that pollutant, unless the State concurs with the Administrator's determination that the revised or new standard is necessary to meet the requirements of this Act.''. (b) Federal Licenses and Permits.--Section 401(a) of such Act (33 U.S.C. 1341(a)) is amended by adding at the end the following: ``(7) With respect to any discharge, if a State or interstate agency having jurisdiction over the navigable waters at the point where the discharge originates or will originate determines under paragraph (1) that the discharge will comply with the applicable provisions of sections 301, 302, 303, 306, and 307, the Administrator may not take any action to supersede the determination.''. (c) State NPDES Permit Programs.--Section 402(c) of such Act (42 U.S.C. 1342(c)) is amended by adding at the end the following: ``(5) Limitation on authority of administrator to withdraw approval of state programs.--The Administrator may not withdraw approval of a State program under paragraph (3) or (4), or limit Federal financial assistance for the State program, on the basis that the Administrator disagrees with the State regarding-- ``(A) the implementation of any water quality standard that has been adopted by the State and approved by the Administrator under section 303(c); or ``(B) the implementation of any Federal guidance that directs the interpretation of the State's water quality standards.''. (d) Limitation on Authority of Administrator To Object to Individual Permits.--Section 402(d) of such Act (33 U.S.C. 1342(d)) is amended by adding at the end the following: ``(5) The Administrator may not object under paragraph (2) to the issuance of a permit by a State on the basis of-- ``(A) the Administrator's interpretation of a water quality standard that has been adopted by the State and approved by the Administrator under section 303(c); or ``(B) the implementation of any Federal guidance that directs the interpretation of the State's water quality standards.''. SEC. 3. PERMITS FOR DREDGED OR FILL MATERIAL. (a) Authority of EPA Administrator.--Section 404(c) of the Federal Water Pollution Control Act (33 U.S.C. 1344(c)) is amended-- (1) by striking ``(c)'' and inserting ``(c)(1)''; and (2) by adding at the end the following: ``(2) Paragraph (1) shall not apply to any permit if the State in which the discharge originates or will originate does not concur with the Administrator's determination that the discharge will result in an unacceptable adverse effect as described in paragraph (1).''. (b) State Permit Programs.--The first sentence of section 404(g)(1) of such Act (33 U.S.C. 1344(g)(1)) is amended by striking ``The Governor of any State desiring to administer its own individual and general permit program for the discharge'' and inserting ``The Governor of any State desiring to administer its own individual and general permit program for some or all of the discharges''. SEC. 4. DEADLINES FOR AGENCY COMMENTS. Section 404 of the Federal Water Pollution Control Act (33 U.S.C. 1344) is amended-- (1) in subsection (m) by striking ``ninetieth day'' and inserting ``30th day (or the 60th day if additional time is requested)''; and (2) in subsection (q)-- (A) by striking ``(q)'' and inserting ``(q)(1)''; and (B) by adding at the end the following: ``(2) The Administrator and the head of a department or agency referred to in paragraph (1) shall each submit any comments with respect to an application for a permit under subsection (a) or (e) not later than the 30th day (or the 60th day if additional time is requested) after the date of receipt of an application for a permit under that subsection.''. <all> [Congressional Bills 112th Congress] [From the U.S. Government Printing Office] [H.R. 2018 Introduced in House (IH)] 112th CONGRESS 1st Session H. R. 2018 To amend the Federal Water Pollution Control Act to preserve the authority of each State to make determinations relating to the State's water quality standards, and for other purposes. _______________________________________________________________________
IN THE HOUSE OF REPRESENTATIVES May 26, 2011 Mr. Mica (for himself, Mr. Rahall, Mr. Shuster, Mrs. Capito, Mr. Coble, Mr. Barletta, Mr. Landry, Mr. Duncan of Tennessee, Mr. Bucshon, Mr. Crawford, Mr. Graves of Missouri, Mr. Gibbs, Mr. Critz, Mr. Altmire, Mr. Holden, Mr. Hunter, Mr. Gary G. Miller of C, Mr. Young of Alaska, Mrs. Schmidt, and Mr. Rogers of Kentucky) introduced the bill; which was referred to the Committee on Transportation and Infrastructure
Rahall, Capito Back Bill to Preserve States' Power Under Clean Water Act
Posted Friday, May 27, 2011 ; 01:54 PM | View Comments | Post Comment
Updated Friday, May 27, 2011; 02:43 PM
Bill would prevent the Environmental Protection Agency from undermining states' permitting programs.
Federal Emergency Management Agency
U.S. Department of Homeland Security
500 C Street SW, Washington, D.C. 20472
(202) 646-2500
(800) 621-FEMA / TTY (800) 462-7585 3 Step Guide for Assistance EPA has primary responsibility for implementing Superfund, but because of the complexity of hazardous waste issues, the Agency has relied on the respective strengths of the following Federal partners to carry out its mission of protecting human health and the environment:
Federal Emergency Management Agency
(FEMA) provides support to State, Tribal, and local governments and to the private sector for responding to releases of hazardous substances. Some of FEMA's activities include: distributing information; planning for emergencies; training for emergencies; membership and participation in the 13 Regional Response Teams; and the administration of $5 million each year to State governments and Tribes for hazardous materials (HAZMAT) training. http://www.fema.gov/pte/carep.htm
CHAPTER 40—DEFENSE AGAINST WEAPONS OF MASS DESTRUCTION
Dear Mr. Prugh, We have reviewed your expertise and would like for you to prosecute our RCRA 7003 case against EPA. Best Regards, John Hutchens for Ted Arman and Iron Mountain Mine http://ironmountainmine.com /
925-878-9167
Today we are recognizing what may be the beginning of a whole new way of developing partnerships between the public and private sectors.
Despite its long name, the Science and Technology Directorate's (S&T) System Efficacy through Commercialization, Utilization, Relevance and Evaluation (SECURE) concept is simple: The government provides companies with detailed requirements of a needed technology, product, or service, along with a conservative estimate of the potential market. In exchange, companies use their own funds to perform research and development to meet those requirements. This saves money on both ends: the government doesn't spend money on research and development, while the company doesn't waste resources trying to figure out on their own what the government ultimately is going to need.
Once the technology, product or service is complete and verified through independent third-party testing and evaluation, the technology can be certified as having met the SECURE requirements. (See this article on SECURE in this week's Bloomberg Businessweek magazine.)
The first certified product, a blast-resistant video system designed by Visual Defence, Inc. that functions similarly to the “black box” found in airplanes was unveiled today by S&T at the Long Island Forum for Technology, located at the Morrelly Homeland Security Center in Bethpage, N.Y.
S&T issued detailed requirements for several needed technologies, including a video system that could be used in mass transit systems and survive an explosion and fire. Visual Defence Inc. produced a working prototype in just a few short months. The systems was tested against powerful improvised explosive devices , subjected to the intense heat of a diesel fuel fire and rapidly cooled with water, simulating a firefighter's hose, and then underwent a series of pilot tests in several municipal transit systems across the country.
The SECURE Program doesn't stop there. We are working to develop the products and services needed to accomplish the broad range of DHS missions, from protecting the nation's critical infrastructure to supporting first responders to enhancing aviation security to facilitating legitimate cross-border travel and trade, and many things in between.
The driving force behind the creation of the SECURE program was DHS's Chief Commercialization Officer, Tom Cellucci, who leads DHS S&T's outreach with both the private and public sectors. Cellucci was recently recognized for his efforts by Security magazine as one of the “ Most Influential People in Security ” who “positively impact the security industry, their organization, their colleagues and their peers.” We think that description sums up Tom's excellent work pretty well!
project seagate
project bluebeam
operation fast and furious
operation gunrunner
cia made al quaida
YOU WILL NEVER HAVE YOUR NEW WORLD ORDER, WE WARRIORS OF THE LIGHT WILL DEFEAT YOU!! ASTRAL BATTLES HAVE BEEN GOING IN OUR FAVOR, NOT EVEN YOUR DARK LORDS CAN WITHSTAND THE ONSLAUGHT WE HAVE PUT ON YOU!
Yeahhhh.. This is the right way to save money from both ends and I think this is the best way to make a bridge between private sector and government sector, through this way government need not pay extra money on on research and development while the company doesn't waste resources trying to figure out on their own what the government ultimately is going to need. This is the best... If government and companies have a good co-operation between both then this world can be the best place to live for humans...
I am really enjoying reading your well written articles. It looks like you spend a lot of effort and time on your blog. I have bookmarked it and I am looking forward to reading new articles. Keep up the good work it!
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Committee Leaders Introduce Bipartisan Bill to Rein In EPA
May 27, 2011
Washington, DC – Transportation and Infrastructure Committee leaders introduced a bipartisan bill to reverse the erosion of states' authority and partnership with the federal government under the Clean Water Act. This well-established and effective partnership has come under increasing attack by the Obama Administration's Environmental Protection Agency (EPA).
H.R. 2018, the “Clean Water Cooperative Federalism Act of 2011 ,” was introduced by Transportation and Infrastructure Committee Chairman John L. Mica (R-FL) and the Committee's Ranking Member Nick Rahall (D-WV). Water Resources and Environment Subcommittee Chairman Bob Gibbs (R-OH) and U.S. Rep. Shelly Moore Capito (R-WV) were among the bill's original cosponsors.
The bill amends the Clean Water Act (CWA) to restore the long-standing balance between federal and state partners in regulating the nation's waters, and preserve the system of cooperative federalism established under the CWA in which the primary responsibilities for water pollution control are allocated to the states. The bill restricts EPA's ability to second-guess or delay a state's permitting and water quality certification decisions under the CWA once EPA has already approved a state's program.
“Under the Obama Administration, EPA continues to strangle economic growth in this country with its overreaching and arbitrary regulatory regime,” Mica said. “This bill will help ensure a common sense regulatory regime that does not unnecessarily harm our nation's farmers, miners and other businesses critical to our economy. We must restore and preserve the federal-state partnership that is the foundation of the Clean Water Act but which is being progressively undermined by EPA.”
“The long arm of the current EPA has reached into Appalachia and superimposed on our coal-producing States a water permitting regime that amounts to a confused hodgepodge of unwritten requirements and unexplainable goals,” said Rahall . “This legislation aims to instill greater certainty and fairness in the system. It intends to help prevent the EPA from steamrolling State permitting programs, ensuring that the States are truly partners with the Federal government in protecting water quality throughout the Nation.”
“As our U.S. economy struggles to get back on track, the EPA continues its assault on what could prove to be the most costly, burdensome, and expansive set of job-destroying regulations ever crafted,” Gibbs stated. “By preserving the state's role in this partnership, we can begin to reign in EPA's runaway regulations to save countless jobs and protect our economy from the tens of billions of dollars their backdoor energy policies would cost.”
“Intentionally delaying the permit approval process has led to a slow-bleed of jobs throughout Appalachia,” said Capito . “Our miners should be able to conduct their day-to-day business and make investments in the future without a veil of uncertainty hovering over the industry. This bill reinforces the state's role in the permit approval process and its original jurisdiction over land and water resources.”
Summary of the “Clean Water Cooperative Federalism Act of 2011”
State Water Quality Standards
H.R. 2018 provides common sense protections for states' EPA-approved water quality standards and permitting authority under the CWA. Without these protections, state regulation, as approved by EPA, can still be usurped by the agency at every turn, creating a climate for regulatory uncertainty and endless delays.
• State Water Quality Standards : Restricts EPA's ability to issue a revised or new water quality standard for a pollutant whenever a state has adopted – and EPA has already approved – a standard, unless the state concurs. In Florida, for example, EPA recently promulgated federal water quality standards over the state's objections.
• State Section 401 Water Quality Certification : Prohibits EPA from superseding a water quality certification (that a discharge will comply with applicable water quality requirements) granted by a state under CWA section 401.
• Approval of State NPDES Permit Program Authority : Prohibits EPA from withdrawing approval of a state water quality permitting program under CWA section 402 (National Pollutant Discharge Elimination System, or NPDES), or from limiting federal financial assistance for the state program, on the basis that EPA disagrees with the state regarding a (i) water quality standard that a state has adopted and EPA has approved, or (ii) the implementation of any federal guidance that directs a re-interpretation of the state's approved water quality standards.
• EPA Veto Authority over State NPDES Permitting Decisions : Prohibits EPA from objecting to a state's issuance of an NPDES permit on the basis of (i) EPA's differing interpretation of an approved state water quality standard, or (ii) the implementation of any federal guidance that directs a re-interpretation of the state's approved water quality standards.
Permits for Dredged or Fill Material
H.R. 2018 places limits on EPA's ability to veto dredge and fill permits issued by the Army Corps of Engineers and gives states more flexibility to administer these permitting programs.
• EPA Veto Authority over Corps Section 404 (Discharges of Dredged or Fill Material) Permitting Decisions : Restricts EPA's ability to veto a Corps 404 permitting decision unless the state concurs with the veto. In an unprecedented action, EPA recently revoked a section 404 permit it had previously approved, even though the permittee had not violated any permit conditions.
• State Permit Program for the Discharge of Dredged or Fill Material : Allows a state to assume and administer only parts of the 404 permit program; under current law, states are required to assume the entire program or none of it.
Deadlines for Agency Comments
H.R. 2018 establishes reasonable time limits for agency comments and helps reduce pointless bureaucratic delays in the section 404 permitting process.
• Deadlines for Fish and Wildlife Service Comments on Proposed Section 404 Permits : The deadline for the Fish and Wildlife Service to submit comments to the Corps on a proposed section 404 permit is shortened from 90 days to 30 days (or 60 days if additional time is requested).
• Deadlines for Other Agency Comments on Proposed Section 404 Permits : Clarifies that the deadline for EPA and other agencies to submit comments to the Corps on a proposed section 404 permit is 30 days (or 60 days if additional time is requested) after the date of receipt of the application for the 404 permit.
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The Safe Drinking Water Act, as amended in 1996, established the Drinking Water State Revolving Fund program to make funds available to drinking water systems to finance infrastructure improvements. The program also emphasizes providing funds to small and disadvantaged communities and to programs that encourage pollution prevention as a tool for ensuring safe drinking water. The objectives of the 2009 American Recovery and Reinvestment Act include creating jobs and investing in environmental infrastructure.
File Format: PDF/Adobe Acrobat - Quick View
“The Small Systems Safe Drinking Water Act of 2011 ” introduced today. ... Senator Inhofe's bill brings equity and fairness to small towns by requiring that ...
www.rural water .org/ inhofe %20 2011 .pdf
Inhofe Bill Advances Clean & Safe
Water and Environmental Justice in
Small and Rural Communities
Background:
Through his leadership position on the EPW Committee, Senator Inhofe has made unfunded mandates a top priority. Since the 108th Congress, he has co-authored and cosponsored legislation to provide additional resources to communities through the State Revolving Loan Funds.
The Small Drinking Water Bill requires the federal government to live up to its obligations and require the EPA to use the tools it was given in the 1996 Safe Drinking Water Act amendments (SDWA). Currently EPA assumes that families can afford water rates of 2.5 percent of their annual median household income, or $1,000 per household. For some families, paying $83 a month for water may not be a hardship but for so many more, it is nearly impossible. There must be some flexibility inserted into the calculation that factors in the ability of the truly disadvantaged to pay these costs. Forcing systems to raise rates beyond what their ratepayers can afford only causes more damage than good.
The bill directs EPA to take additional factors into consideration when making this determination: These include ensuring that the affordability criteria are not more costly on a per-capita basis to a small water system than to a large water system. In EPA's most recent drinking water needs survey , Oklahoma identified a total of over $4.1 billion in drinking water needs over the next 20 years. $2.4 billion of that need is for community water systems that serve fewer than 10,000 people. The $4.1 billion does not include the total costs imposed on Oklahoma communities to meet federal clean water requirements, the new Groundwater rule, the DBP II rule or the Long Term 2 Enhanced Surface Water Treatment Rule. Oklahoma continues to have municipalities struggling with the 2002 arsenic rule. Many of our small systems are having difficulty with the Disinfection Byproducts (DBP) Stage I rule, and small systems who purchase water from other systems and did not have to test, treat or monitor their water must now comply with DBP II. EPA estimates that over the next 20 years, the entire country will need $52.0 billion dollars to come into compliance with existing, proposed or recently promulgated regulations.
The bill proposes a few simple steps to help systems comply with all these rules:
Reauthorizes the technical assistance program in the Safe Drinking Water Act. The DBP rules are very complex and involve a lot of monitoring and testing. If we are going to impose complicated requirements on systems, we need to provide them with help to implement those requirements.
The bill creates a pilot program to demonstrate new technologies and approaches for systems of all sizes to comply with these complicated rules.
It requires the EPA to convene a working group to examine the science behind the rules in order to compare new developments since each rule's publication. Section 1412(b)(4)(E) of the SDWA Amendments of 1996 authorizes the use of point of entry treatment, point of use treatment and package plants to economically meet the requirements of the Act. However, to date, these approaches are not widely used by small water systems. The bill directs the EPA to convene a working group to identify barriers to the use of these approaches. The EPA will then use the recommendations of the working group to draft a model guidance document that states can use to create their own programs.
Most importantly this bill requires the federal government to pay for these unfunded mandates created by laws and regulations: In 1995, Congress passed the Unfunded Mandates Reform Act to ensure that the Federal government pays the costs incurred by state and local governments in complying with Federal laws. The bill is designed to ensure that EPA cannot take an enforcement action against a system serving less than 10,000 people, without first ensuring that it has sufficient funds to meet the requirements of the regulation.
Submission for OMB Review; Preventing Personal Conflicts of Interest for Contractor Employees Performing Acquisition Functions
PDF XML Print Publication Date: Thursday, May 12, 2011 Action: Notice Of Request For Public Comments Regarding A New Omb Information Clearance. Dates: Submit comments on or before June 13, 2011. Comments Close: 06/13/2011 Agencies: General Services Administration Department of Defense National Aeronautics and Space Administration Entry Type: Notice Page: 27648 (1 page) Document Citation: 76 FR 27648 Docket ID: OMB Control No. 9000-00XX Document Number: 2011-11609 Shorter URL: http://federalregister.gov/a/2011-11609
Summary
Under the provisions of the Paperwork Reduction Act (44 U.S.C. chapter 35), the Regulatory Secretariat (MVCB) will be submitting to the Office of Management and Budget (OMB) a request to review and approve a new information collection requirement regarding Preventing Personal Conflicts of Interest for Contractor Employees Performing Acquisition Functions. Show citation box
Public comments are particularly invited on: Whether this collection of information is necessary for the proper performance of functions of the FAR, and whether it will have practical utility; whether our estimate of the public burden of this collection of information is accurate, and based on valid assumptions and methodology; ways to enhance the quality, utility, and clarity of the information to be collected; and ways in which we can minimize the burden of the collection of information on those who are to respond, through the use of appropriate technological collection techniques or other forms of information technology. Show citation box
Submit comments identified by Information Collection 9000-00XX, Preventing Personal Conflicts of Interest for Contractor Employees Performing Acquisition Functions by any of the following methods: Show citation box
Regulations.gov: http://www.regulations.gov . Submit comments via the Federal eRulemaking portal by inputting “Information Collection 9000-00XX”, Preventing Personal Conflicts of Interest for Contractor Employees Performing Acquisition Functions under the heading “Enter Keyword or ID” and selecting “Search”. Select the link “Submit a Comment” that corresponds with “Information Collection 9000-00XX”, Preventing Personal Conflicts of Interest for Contractor Employees Performing Acquisition Functions. Follow the instructions provided at the “Submit a Comment” screen. Please include your name, company name (if any), and “Information Collection 9000-00XX”, Preventing Personal Conflicts of Interest for Contractor Employees Performing Acquisition Functions on your attached document. Show citation box
Fax: 202-501-4067. Show citation box
Mail: General Services Administration, Regulatory Secretariat (MVCB), 1275 First Street, NE., Washington, DC 20417. ATTN: Hada Flowers/IC 9000-00XX. Show citation box
Instructions: Please submit comments only and cite Information Collection 9000-00XX, Preventing Personal Conflicts of Interest for Contractor Employees Performing Acquisition Functions, in all correspondence related to this collection. All comments received will be posted without change to http://www.regulations.gov , including any personal and/or business confidential information provided. Show citation box
Mr. Anthony Robinson, Procurement Analyst, Acquisition Policy Division, at telephone (202) 501-2658 or via e-mail to Anthony.robinson@gsa.gov . Show citation box
This is a request for a new information collection requirement concerning the Office of Management and Budget (OMB) Control Number 9000-00XX, FAR Case 2008-025, Preventing Personal Conflicts of Interest for Contractor Employees Performing Acquisition Functions, (Final Rule). Section 841(a) requires the Administrator for Federal Procurement Policy to develop and issue a standard policy to prevent personal conflicts of interest by contractor employees performing acquisition functions closely associated with inherently governmental functions, and an associated personal conflicts-of-interest clause or set of clauses. Show citation box
Under the final rule, contractors are required to notify contracting officers whenever they become aware of any personal conflict-of-interest violations by a covered employee. The objective of the notification requirement is to emphasize the critical importance of integrity in contracting and reduce the occurrence of personal conflict-of-interest violations by contractor employees performing acquisition-related functions. Show citation box
In addition, contractors have the opportunity, in exceptional circumstances, to request mitigation or waiver of the personal conflict-of-interest standards. The information is used by the Government to evaluate the requested mitigation/waiver. Show citation box
Obtaining Copies of Proposals: Requesters may obtain a copy of the information collection documents from the General Services Administration, Regulatory Secretariat Branch (MVCB), 1275 First Street, NE., Washington, DC 20417, telephone (202) 501-4755. Please cite OMB Control No. 9000-00XX, Preventing Personal Conflicts of Interest for Contractor Employees Performing Acquisition Functions, in all correspondence. Show citation box
Dated: May 6, 2011.
Millisa Gary,
Acting Director, Office of Governmentwide Acquisition Policy.
1. FERC's jurisdiction under this bill extends to distribution systems; the ERO's does not: The definition of Critical Electric Infrastructure in proposed Section 224 extends to distribution systems. Section 215 does not provide NERC with that jurisdiction. Thus, existing NERC reliability standards and requirements cannot be as broad as FERC's jurisdiction under the draft bill, and standards prepared by NERC at the direction of FERC similarly cannot be as broad as FERC's direction if FERC directs an action to protect the distribution system action. If NERC is intended to have the same jurisdiction as FERC over the distribution system and assets, this needs to be clarified. Without such clarification, FERC could always find that an ERO-proposed reliability standard “fails to provide adequate protection of critical electric infrastructure from a cybersecurity vulnerability” and reject the ERO's efforts under Section 224, effectively removing the ERO role from the vulnerabilities section.
2. Identification of vulnerability: No requirement exists in the legislation for FERC to identify any deficiency in existing reliability standards or the specific cybersecurity vulnerability for the ERO to address. Without some idea of the “target” that FERC would like the ERO to hit, it will be difficult for the ERO to produce an adequate set of requirements, assuming the jurisdiction issue above is addressed.
3. Enforceable tools in addition to standards: The discussion draft calls for the ERO to develop a reliability standard in response to a FERC order on vulnerabilities, but given the constantly changing nature of vulnerabilities, not all vulnerabilities can or should be addressed by a standard. Currently, NERC actions other than standards are not legally enforceable. Legislation that provides a means for both standards and other NERC directives to be legally enforceable would significantly enhance the cybersecurity of the grid. Such an approach would require the involvement of both the ERO and the Commission.
4. Due process: The discussion draft would authorize FERC to promulgate an interim final rule without consultation or any due process. In addition, unlike the 90-day sunset on DOE emergency orders, there is no such limitation on FERC interim final rules.
Conclusion
NERC works with multiple agencies, industry, consumers and government to support a coordinated comprehensive effort to address cybersecurity. As outlined today, NERC has many tools available including the ESCC and the ES-ISAC to address imminent and non-imminent threats and vulnerabilities through our Alerts and standards processes. These existing processes should be enhanced, not pre-empted, by cybersecurity grid legislation.
We appreciate this opportunity to discuss NERC's activities on cybersecurity with the committee and to offer our views on legislation that would improve cybersecurity protection of the grid.
1. Reliability Standards
NERC has nine existing CIP standards that address the following areas:
• Standard CIP-001: Covers Sabotage Reporting.
• Standard CIP-002: Requires the identification and documentation of the Critical Cyber Assets associated with the Critical Assets that support the reliable operation of the Bulk Electric System.
• Standard CIP-003: Requires that Responsible Entities have minimum security management controls in place to protect Critical Cyber Assets.
• Standard CIP-004: Requires that personnel having authorized cyber or authorized unescorted physical access to Critical Cyber Assets, including contractors and service vendors, have an appropriate level of personnel risk assessment, training, and security awareness.
• Standard CIP-005: Requires the identification and protection of the Electronic Security Perimeter(s) inside which all Critical Cyber Assets reside, as well as all access points on the perimeter.
• Standard CIP-006: Intended to ensure the implementation of a physical security program for the protection of Critical Cyber Assets.
• Standard CIP-007: Requires Responsible Entities to define methods, processes, and procedures for securing those systems determined to be Critical Cyber Assets, as well as the other (non-critical) Cyber Assets within the Electronic Security Perimeter(s).
• Standard CIP-008: Ensures the identification, classification, response, and reporting of Cyber Security Incidents related to Critical Cyber Assets.
Subject:
Water News Release (HQ): EPA to Host Public Listening Sessions during National Ocean Month
EPA to Host Public Listening Sessions during National Ocean Month
WASHINGTON – The Obama Administration today announced the launch of a series of listening sessions to gather input from the communities that depend on and care for our ocean, coasts, and Great Lakes – continuing work to implement the nation's first comprehensive ocean policy. Feedback and comments gathered through these public engagement opportunities will assist the National Ocean Council as it continues implementing the new National Policy for the Stewardship of the Ocean, our Coasts, and the Great Lakes.
Starting next week, the National Ocean Council will host a series of 12 public listening sessions across the country. EPA will be coordinating efforts with other federal agencies and partners to host a listening session in the Gulf of Mexico region and co-host a listening session in the Great Lakes region alongside the U.S. Coast Guard. Following the executive order issued by President Obama last July that established the National Ocean Policy and the National Ocean Council, these public engagement sessions mark the latest milestone in implementing an ocean policy that addresses critical issues facing our oceans.
In addition, the National Ocean Council has launched a month-long public comment period for strategic action plan outlines. The outlines for the strategic action plans were drafted by federal interagency teams as a first step in implementing the president's National Ocean Policy. After the public comment period, the outlines will be used to develop strategic action plans that will propose attainable goals and specific, measureable actions the federal government can implement to address key challenges facing our ocean, coasts, and Great Lakes.
To participate in providing feedback for the strategic action plans outlines or to get more information on listening sessions: http://www.whitehouse.gov/oceans
Prepare for a hurricane before it strikes. June 1 marks the beginning of hurricane season in the US. Individuals, communities, and businesses can find out more about avoiding or minimizing disaster by planning ahead for shortages and storm cleanup. http://www.epa.gov/naturaldisasters/hurricanes
Don't Fry - Any Day! With the start of the summer season, remember to avoid overexposure to the sun's harmful "UV" rays. Put on sunscreen, wear a hat, sunglasses, and a t-shirt. Melanoma, the most serious form of skin cancer, is on the rise in America and is the most common cancer among young adults aged 25-29. Read more about how to protect yourself. http://yosemite.epa.gov/opa/admpress.nsf/names/hq_2011-5-23_dontfryday
-Check the UV Index where you live or get the web widget: http://www.epa.gov/sunwise/uvindex
Rachel Carson Contest, entry deadline June 10! Teams of two or more persons, a young person and an older person, can express their "Sense of Wonder" for the sea, the night sky, forests, birds, wildlife, and all that is beautiful to your eyes. http://www.epa.gov/aging/resources/thesenseofwonder
Help Build Asthma Awareness. Learn what you can do to reduce indoor air asthma triggers in homes and schools. One out of every ten school-aged children is affected and approximately 13 million people have reported having an asthma attack in the past year. http://yosemite.epa.gov/opa/admpress.nsf/names/hq_2011-5-3_asthmaawarenessmonth
Photo Project. You can take a photo of the environment "as you see it" and submit it to the State of the Environment Photo Project. This photo project builds on Documerica, a collection of thousands of photos of the 1970s American environment. See the old collection, and find out how you can submit photos (through Flickr) to the new collection. Selected submitted photos will be used in a display during Earth Day 2012. http://www.epa.gov/environmentphotoproject
-Try the "Locations" challenge! http://www.epa.gov/environmentphotoproject/locations.html
You can view or update your subscriptions or e-mail address at any time on your Subscriber Preferences Page . All you will need is your e-mail address. If you have any questions or problems e-mail support@govdelivery.com for assistance.
Schlosser moving to OMB's E-Gov office
Federal News Radio 1500 AM
In her new role, Lisa Schlosser will work closely with federal CIO Vivek Kundra on oversight and implementation of the administration's initiatives.
Cybersecurity Recommendations
Nextgov
The Center for a New American Security released a two-volume report today on cybersecurity containing a wide range of recommendations.
HHS IT Reform at the 6-Month Mark
CIO.gov
HHS CIO Mike Carleton highlights HHS efforts over past six months to improve investment management and streamline IT operations.
IT Reform at the Department of Homeland Security
CIO.gov
Six months after OMB unveiled the 25 Point Implementation Plan to Reform Federal IT Management, CIO Richard Spires announces DHS progress in implementing key IT Reform actions outlined in the Plan.
Chief Information Officers Council - Meet the CIO Council Accessibility Committee
cio.gov
A little over a year ago, the CIO Council established the Accessibility Committee in an effort to raise awareness and engage Federal CIOs to improve accessibility within both their agencies and the government as a whole. Disability advocates from outside government and many government insiders recommended the Federal government adopt a stronger overall federal approach to technology accessibilit
Transportation Dept. Gets $100 Million For Wireless Apps -- InformationWeek
informationweek.com
The White House plans to invest $100 million to help the Department of Transportation (DOT) develop wireless applications to deliver emergency services, Internet access in remote locations, and other innovative services to its employees and users, according to the DOT.
To take the next IT step, agencies have to get creative -- Government Computer News
gcn.com
Consolidation, virtualization, cloud ... they promise the moon: On demand IT services, scaled to meet specific computing requirements; faster services to end users and improved IT economies for management, legislators and taxpayers. But although government is a good candidate for these streamlining technologies, agencies may need to adopt some financial and management practices that are not typical of government if they are to realize these benefits.
Green Infrastructure for Clean Water Act Introduced in Senate and House
On May 27, Senators Ben Cardin (D-MD), Tom Udall (D-NM) and Sheldon Whitehouse (D-RI) introduced the Green Infrastructure for Clean Water Act of 2011 . The bill's sponsors say that the measure would address the nation's water quality challenges by encouraging the research, development and promotion of new technologies and designs that use natural processes to combat polluted stormwater runoff. The bill calls for EPA to use a competitive grant program to establish Centers of Excellence for green infrastructure, each charged with conducting research on green infrastructure that is relevant to the geographic region in which the Center is located, and provide communities with training and technical assistance on how to implement green infrastructure best management practices. The legislation would also provide incentive funding to help communities develop green infrastructure technologies, and would establish a green infrastructure program within the EPA's Office of Water to coordinate and promote the use of new stormwater technologies.
Comparable Senate and House versions of the same legislation were introduced during the last session of Congress, but neither advanced out of their respective committees.
U.S. EPA Highlights 1st Ever National Wetlands Condition Assessment, Changing Federal Protections for California Wetlands
Release date: 06/02/2011
Contact Information: Mary Simms, simms.mary@epa.gov (415) 947-4270
Field sampling taking place in San Mateo, San Diego, Orange, Solano, Contra Costa, Ventura, Marin, Monterey, Humboldt, San Joaquin and additional counties throughout California, U.S
SAN FRANCISCO — The U.S. Environmental Protection Agency is hosting a press availability today to highlight a national effort to assess the health of the nation's wetlands, and an opportunity to provide input on proposed changes to how the government protects wetlands. The media event is being held at the Stone Lakes National Wildlife Refuge in Elk Grove, California, where scientists will be simultaneously sampling nearby wetlands as part of the National Wetlands Condition Assessment (NWCA).
The NWCA is a collaboration between EPA and its state, tribal, and federal partners representing the first-ever national field survey on the health of the nation's wetlands. More than 1,000 sites across the country—including 43 in California—are being surveyed to assess indicators of wetland health, including water quality and flow, vegetation, and soils. NCWA sampling locations during the next two months will include wetlands in the following California counties: San Mateo, San Diego, Orange, Solano, Contra Costa, Ventura, Marin, Monterey, Humboldt, San Joaquin, Inyo, Merced, and Mendocino.
EPA officials will also be answering questions regarding recent draft guidance on federal wetlands protection. The draft Guidance, developed with the U.S. Army Corps of Engineers, aims to clarify which waters are subject to protection under the Clean Water Act, and is open to public input until July 1st. Formal regulations clarifying when the CWA applies may follow the guidance, a process which would again involve public input.
“Wetlands filter pollution, and protect communities from flooding while providing habitat for fish, fowl and flora,” said Alexis Strauss, EPA's water division director for the Pacific Southwest. “The draft Clean Water Act guidance will reaffirm our intent to protect these vital and vanishing resources to the fullest extent of the law, while providing greater clarity to the regulated public.”
Between 80 and 95 percent of California's original wetlands and stream-side (“riparian”) habitats have been destroyed or modified. For nearly 40 years, the Clean Water Act has been a cornerstone of EPA's effort to ensure that Americans have clean and healthy waters. The draft guidance, part of the Obama administration's national clean water framework, implements recent Supreme Courtdecisions addressing what types of waters could be subject to traditional CWA protections. The framework outlines a series of actions across federal agencies to ensure the integrity of the waters Americans rely on every day for drinking, swimming, and fishing, and that support farming, recreation, tourism and economic growth.
The National Wetland Condition Assessment (NWCA) survey was designed by EPA's Office of Research and Development and the U.S. Fish and Wildlife Service. It will use a probability-based model to estimate the health of aquatic resources consistently nation-wide to ensure that the results can be compared across the country.
Used along with similar surveys on the nation's coastal waters, wadeable streams, rivers, and lakes, the NWCA results will help us to better protect, maintain, and restore our nation's water quality and vanishing aquatic habitat.
Rio Rancho Receives $286,000 for Green Infrastructure
Release date: 06/01/2011
Contact Information: Dave Bary or Joe Hubbard at 214-665-2200 or r6press@epa.gov
(DALLAS – June 1, 2011) The City of Rio Rancho, New Mexico is constructing a new well water infrastructure, including two surge tanks, duplex model air compressors and controls that will alleviate problems with pipe failures due to surges from the existing equipment. The U. S. Environmental Protection Agency (EPA) awarded $286,000 for the work.
EPA encourages citizens to take action to protect the nation's waters. Americans drink more than one billion glasses of tap water per day and keeping water safe is a shared responsibility. Americans can do their part by staying informed, reusing containers, recycling and keeping pollutants away from the nation's waterways.
Environmental Justice is the fair treatment and meaningful involvement of all people regardless of race, color, national origin, or income with respect to the development, implementation, and enforcement of environmental laws, regulations, and policies.
EPA conducts and supervises investigation and cleanup actions at a variety of sites where oil or hazardous chemicals have been released into the environment or when there is a threat of the release of these substances. Cleanup activities also may take place at active and abandoned waste sites, federal facilities and properties, and where above or underground storage tanks have leaked.
Aboveground Storage Tanks
Aboveground Storage Tanks (ASTs) that store petroleum or hazardous substances are subject to both federal regulations and state/local regulations. Most ASTs need to meet Spill, Prevention, Control, and Countermeasure (SPCC) requirements.
Brownfields
Brownfields are real property, the expansion, redevelopment or reuse of which may be complicated by the presence or potential presence of a hazardous substance, pollutant or contaminant.
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.
Resource Conservation and Recovery Act (RCRA) Corrective Action
When solid or hazardous waste is not properly managed and contamination results at RCRA-regulated facilities, the RCRA Corrective Action program monitors and regulates the cleanup of the contamination.
Laws and Regulations
Corrective Action: Rules and Regulations - The Resource Conservation and Recovery Act (RCRA) Corrective Action Program, run by EPA and 41 authorized states and territories, compels responsible parties to investigate and cleanup hazardous releases. This page links to the rules and regulations related to the Corrective Action Program.
Superfund
The Comprehensive Environmental Response, Compensation and Liability Act of 1980 , known as Superfund, was enacted to address abandoned hazardous waste sites in the U.S. The law has subsequently been amended, by the Superfund Amendments and Reauthorization Act of 1986 (SARA), and the Small Business Liability Relief and Brownfields Revitalization Act of 2002.
The HRS Toolbox page provides current guidance documents that may be used to determine if a site is a candidate for inclusion on the National Priorities List.
EPA enforces federal clean water and safe drinking water laws, provides support for municipal wastewater treatment plants, and takes part in pollution prevention efforts aimed at protecting watersheds and sources of drinking water.
EPA enforces federal clean water and safe drinking water laws, provides support for municipal wastewater treatment plants, and takes part in pollution prevention efforts aimed at protecting watersheds and sources of drinking water.
Biosolids
Biosolids are the nutrient-rich organic materials resulting from the treatment of sewage sludge. Only biosolids that meet the most stringent standards spelled out in federal and state rules can be approved for use as a fertilizer.
Read more at Biosolids – includes guidance, publications, and answers to frequent questions.
Drinking Water
The Safe Drinking Water Act (SDWA) is the main federal law that ensures the quality of Americans' drinking water. Under SDWA, EPA sets standards for drinking water quality and oversees the states, localities, and water suppliers who implement those standards.
Current Drinking Water Regulations: provides information on regulations on contaminants EPA regulates in drinking water, such as arsenic, lead, and microbials.
Other Actions : describes other activities EPA has taken in response to the 1996 Amendments to the Safe Drinking Water Act.
Regulation Development : describes how EPA decides which contaminants to regulate, how drinking water standards are set, and when to revise existing regulations.
Ground Water
Many communities obtain their drinking water from aquifers. Unfortunately, the ground water can become contaminated by human activity. These chemicals can enter the soil and rock, polluting the aquifer and eventually the well.
Ground Water Rule - The Ground Water Rule provides for increased protection against microbial pathogens in public water systems that use ground water sources.
Underground Injection Control Program - The UIC Program is responsible for regulating the construction, operation, permitting and closure of injection wells that place fluids underground for storage or disposal.
Source Water Protection - The 1996 Amendments to the Safe Drinking Water Act provide a new approach for EPA and states. In addition to relying on standards and regulations that address water safety at the tap, measures are in place to ensure the quality of drinking water by protecting it from the source to the tap.
Hydraulic Fracturing
Water is an integral component of the hydraulic fracturing process. EPA Office of Water regulates waste disposal of flowback and sometimes the injection of fracturing fluids as authorized by the Safe Drinking Water Act and Clean Water Act.
Impaired Waters
Under Section 303 D of the Clean Water Act , states, territories and authorized tribes are required to develop lists of impaired waters. These are waters that are too polluted or otherwise degraded to meet the water quality standards set by states, territories, or authorized tribes.
Stormwater
EPA controls storm water and sewer overflow discharges through its National Pollutant Discharge Elimination System . NPDES provides guidance to municipalities and state and federal permitting authorities on how to meet stormwater pollution control goals as flexibly and cost-effectively as possible.
Wastewater
EPA regulates the discharge and treatment of wastewater under the Clean Water Act . The National Pollutant Discharge Elimination System (NPDES) issues permits to all wastewater dischargers and treatment facilities. These permits establish specific discharge limits, monitoring and reporting requirements and may also require these facilities to undertake special measures to protect the environment from harmful pollutants.
Environmental Justice is the fair treatment and meaningful involvement of all people regardless of race, color, national origin, or income with respect to the development, implementation, and enforcement of environmental laws, regulations, and policies. EPA has this goal for all communities and persons across this Nation. It will be achieved when everyone enjoys the same degree of protection from environmental and health hazards and equal access to the decision-making process to have a healthy environment in which to live, learn, and work.
EPA has scheduled 6 Listening Sessions seeking ways to better integrate environmental justice into the permits issued under environmental laws. Read more about how to participate .
Federal Interagency Working Group on Environmental Justice (IWG)
Various Federal agencies and White House offices working to integrate environmental justice into its individual programs
Environmental Justice Achievement Awards
Recognizing the achievements of organizations that undertake environmental justice initiatives which make a positive impact in the community
Community Outreach Teleconferences
Provides information to participants about the Agency's EJ activities and maintain an open dialogue with EJ advocates
Washington, D.C.-Sen. James Inhofe (R-Okla.), Ranking Member on the Senate Committee on Environment and Public Works, together with Senators David Vitter (R-LA), Mike Crapo (R-ID), John Boozman (R-AR), Thad Cochran (R-MS), and Jim Risch (R-ID), yesterday introduced The Small System Safe Drinking Water Act of 2011 (S. 999)-a bill that helps small water systems comply with Federal drinking water standards by requiring that the Environmental Protection Agency (EPA) utilize all the affordability provisions provided under the 1996 Safe Drinking Water Act amendments (SDWA), which are designed to help water systems in smaller communities come into compliance.
"One of my top priorities through my leadership role on the EPW Committee is to ensure that small towns in Oklahoma and across the nation have safe, affordable drinking water and that the laws are fair to small and rural communities," Senator Inhofe said. "Too often federal regulations come with a price tag that is unreasonable for small towns and cities with lower budgets. Forcing systems to raise rates beyond what their ratepayers can afford only causes more damage than good and can be especially harmful for low-income communities or areas facing economic challenges."
Support from Oklahomans for the Small System Safe Drinking Water Act
Steve Thompson, Executive Director of the Oklahoma Department of Environmental Quality: "Federal requirements are overwhelming the financial capacity of small drinking water systems. Almost every small system enforcement action taken by the Oklahoma Department of Environmental Quality is related to the difficulty those communities have in accessing sufficient funds to carry out the projects. Many of the communities struggle even after significant increases in rates to their citizens. I applaud Senator Inhofe's effort to insure that funding is available to meet the needs of our small communities and rural water districts."
Mark Mosley, City Manager, Wewoka: "As City Manager of Wewoka, I am encouraged by the legislation you are proposing that will provide funds for small towns under EPA and DEQ mandates. This would allow the City to use grants, funds and extra money to improve other infrastructure such as roads, bridges, parks and the overall quality of life of the small towns."
Martin Tucker, City Manager, Skiatook: "In these tough economic times, many Cities and Towns across the country are struggling to make ends meet. Local governments are tasked with providing most, if not all, of the emergency services for their residents along with a myriad of fundamental, basic services. Unfunded mandates and directives translate directly into a reduced level of service for our citizens. Legislation to curtail the burden of these mandates would offer direct benefits to those we represent."
Details about The Small System Safe Drinking Water Act of 2011
Specifically, this bill requires EPA to update its affordability criteria, which it admitted in 2006 is unfair to small systems. Currently, EPA assumes that families can afford water rates of 2.5 percent of their annual median household income, or $1,000 per household. For some families, paying $83 a month for water may not be a hardship but for so many more, it is nearly impossible. This bill guarantees that there is some flexibility inserted into the calculation that determines the ability of the truly disadvantaged to pay these costs-it will make sure small systems get the help they need to meet these requirements.
It provides EPA with practical steps to take to help small systems cope with drinking water rules by reauthorizing the technical assistance program and identifying barriers to new technologies. The bill creates a pilot program to demonstrate new technologies and approaches for systems of all sizes to comply with these complicated rules.
Most importantly this bill requires the federal government to pay for these unfunded mandates created by laws and regulations: In 1995, Congress passed the Unfunded Mandates Reform Act to ensure that the Federal government pays the costs incurred by state and local governments in complying with Federal laws. The bill ensures that EPA cannot take an enforcement action against a system serving less than 10,000 people, without first ensuring that it has sufficient funds to meet the requirements of the regulation.
Commitment to Rural Water Issues
Rural water issues are a top priority for Senator Inhofe. Since the 108th Congress, he has co-authored and cosponsored legislation that addresses unfunded clean water mandates by providing additional resources for small communities through the State Revolving Loan Funds. In addition to the Small Systems Safe Drinking Water Act, Senator Inhofe introduced the Small Water Systems Technical Assistance Bill in 2007, which reauthorizes the technical assistance provision originally provided in the 1996 Amendments to the Safe Drinking Water Act. This bill would give small communities without sufficient resources access to the technical tools they need to protect their waters. Senator Inhofe also led the fight against the Clean Water Restoration Act-a bill that would have empowered the federal government to regulate practically every body of water in the country, no matter how small, and extended the scope and reach of federal water jurisdiction beyond anything that ever existed under the Clean Water Act.
Prepare for a hurricane before it strikes. June 1 marks the beginning of hurricane season in the US. Individuals, communities, and businesses can find out more about avoiding or minimizing disaster by planning ahead for shortages and storm cleanup. http://www.epa.gov/naturaldisasters/hurricanes
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Rachel Carson Contest, entry deadline June 10! Teams of two or more persons, a young person and an older person, can express their "Sense of Wonder" for the sea, the night sky, forests, birds, wildlife, and all that is beautiful to your eyes. http://www.epa.gov/aging/resources/thesenseofwonder
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At the age of 47, Baron Benjamin de Rothschild has put the 4-billion-euro family fortune in the hands of his wife, Baroness Ariane de Rothschild. 'I think women today are better suited for business than men,' he says. In an extensive, and rare, interview to Haaretz-The Marker, Baron de Rothschild talks about his brand of Judaism, his distaste for trading gold and his love of speed.
By Eytan Avriel and Guy Rolnik
If I were Rothschild," we hummed to ourselves from the Hebrew version of "Fiddler on the Roof" as we walked along Rue de l'Elysee in Paris. We were on the way to interview Baron Benjamin de Rothschild, the last scion of the dynasty's French branch, who is considered the world's richest Rothschild today. Rue de l'Elysee is not just any street. On one side stands the Elysee Palace, the official residence and office of President Nicolas Sarkozy. The street is closed to traffic and pedestrians are subjected to the suspicious scrutiny of the gendarmes surrounding the palace. On the other side is a row of stately old homes, including, at No. 10, the residence of Baron Benjamin de Rothschild. This is not his permanent home. He and his family live in a palace on the shore of Lake Geneva, outside the Swiss city. This is the baron's address in Paris, and it is where he meets with the boards of directors of his many companies. It is less a home than a museum: The design, the carpets, the furniture, the shelves, the manners and even the scents send the visitor into a time machine and far into history.
Benjamin and Ariane de Rothschild.
Photo by: Photo courtesy of the Rothschild family
In the 19th century the Rothschild family was no less than the central bank of Europe. States and monarchs turned to the Rothschild bank to raise capital or to receive loans, usually by means of the new instrument of government bonds. The Rothschilds issued, sold and disseminated the bonds of kings and governments in European capitals, often investing the family's own capital in them. Without the financial backing of the Rothschilds, kings found it difficult to go to war.
At the beginning of the 19th century, Mayer Amschel Rothschild, the dynasty's Frankfurt-based founder, sent his five sons to establish financial centers in Germany, Austria, France, Britain and Italy, a strategy that led to its domination of European finance. The sons founded banks in the Continent's capital cities. They issued bonds, traded in gold and currency, managed investments and engaged in commerce and any other financial activity for which there was a demand. They worked in coordination with, but also competed against, each other. Only the name Rockefeller vied with them as a symbol of wealth and power. The Rothschilds were undoubtedly the richest family in the world at the time.
In the 20th century the Rothschild empire gradually declined in strength. The family's banks increasingly lost ground to new banks that raised capital from the public through share issues, while the two world wars changed the world order. The Rothschilds remained key players in London and Paris, however.
Baron Edmond Benjamin James de Rothschild, "the Benefactor," laid the foundations for Jewish settlement in Palestine through his economic support for what came to be known as the First Aliyah, the wave of Jewish immigration from 1882-1903. In the second half of the 20th century the British Rothschilds sold their securities trading businesses, and in 1981 the French branch of the family was forced to watch as President Francois Mitterrand's socialist government nationalized its bank. The world had changed. The Rothschild dynasty, too, seemed to be on the verge of disappearing into history. But that did not happen.
A Google search of Baron Benjamin de Rothschild produces little in the way of information. One can learn that he is a seventh-generation descendant of dynasty founder Mayer Amschel, and that as the great-grandson of "the Benefactor" he controls the Caesarea Edmond Benjamin de Rothschild Foundation. The foundation, through the management of the Caesarea community, provides financial support for education in Israel and has land and cash holdings worth more than NIS 700 million. Googling also reveals that the baron controls private banks in France and Switzerland, owns a number of the world's most famous palaces and wineries and is very fond of sports, particularly sailing. He rarely gives interviews; there are a handful of articles about him in the French press but none in the English-language media and certainly not in the Israeli media.
Hooked on adrenaline
Baron Benjamin de Rothschild, 47, tall and blue-eyed, and his wife, Baroness Ariane de Rothschild, entered the salon where we waited. No entourage, no aides, advisers or PR people. Just he and his wife. Any preconceived notions we had entertained about noblesse oblige with regard to formality, ceremoniousness, seriousness and diplomacy were soon dashed. Our interlocutor turned out to be easygoing, quick to laugh and a chain-smoker. In the course of our 90-minute interview he polished off an entire pack of Marlboro Menthols.
The baron is a shy man. At first he agreed to be photographed, but just before the interview his assistant requested that we drop the idea. The pictures he sent us largely point to the way he sees himself: Only one of him in a suit, many of him on his racing sailboats, and in nearly all the photos he is unshaven. Right at the start, when we asked why he spends most of his time not in Paris but rather in the isolated palace near Geneva, he replied that he was not a social person: "I do not go to parties. I do not know the high society of Paris. That is not my thing."
So what is his thing? Sports. He doesn't run, swim, cycle or work out, but he's hooked on adrenaline. He has a fleet of competitive sailboats - of the type that can circumnavigate the globe - and his crews often come first place when they race. He enjoys hunting. ("I hunt everything - in Africa, Russia, Europe, everywhere. It's hunting and conservation at the same time, because these are places where certain animal populations need to be reduced." ) He drives Formula 1 Ferraris, acquiring them when the official team gets new cars, and rides racing motorcycles. He also skis competitively. (His grandmother founded one of the first ski resorts to target the wealthy, in the French Alpine town of Megeve. He goes there to ski and to check on his hotels. ) When the baron wants to clear his head he flies a private helicopter bearing the Rothschild coat of arms to the Atlantic-coast anchorage of his sailboats.
Baron Benjamin de Rothschild, you are media- and publicity-averse. Why did you agree to this interview?
"We are becoming more and more important in the Israeli financial system, and our philanthropic activity in Israel is also growing. So we decided to open ourselves a little bit more to the Israeli public, so we can be better known, if only because my great-grandfather started the country. We would not want people to forget that. Lately I have been gradually transferring to Ariane responsibility and handling of the family's assets around the world and also in Israel. She is now in charge of the Caesarea Foundation."
Do you visit Israel often?
"In the past I used to come to Israel quite often, but less so in recent years."
Do you follow developments in Israel, even though your life is in Europe?
"It is not difficult to follow developments in Israel - you see it every day on television, on CNN, for example. I follow the events in Israel as a Jew and also because I am interested in the peace process in the region. I would very much like to see the process go ahead."
Can you elaborate? What are your political views?
"It is not easy to elaborate on such a complicated problem. You know, when you don't live in a country you don't know all the ins and outs. More than 10 years ago, when my father died, Benjamin Netanyahu called and asked if he could help with anything. I told him, 'Make peace, advance the process.' I told Netanyahu that I know it's complicated but that if he is asking me if my father had a wish, it was to see peace in the Middle East. "I understand that it is a complicated business, mainly because of the fanatics and extremists - and I am talking about both sides. I think you have fanatics in Israel: They do not serve in the army and they attack the soldiers who guard them. Extremists are a disaster on any side. In France there are the extremists of Le Pen. I am especially against religious extremists: It infuriates me to see the pope asking for 40 euro so people can attend a mass in London. In general I am not in contact with politicians. I spoke once with Netanyahu, as I mentioned. I met once with an Israeli finance minister, but the less I mingle with politicians the better I feel."
Has that always been the approach of the Rothschild family, across the generations?
"In general, yes. Our family always supported democracy, and therefore we supported Israel. That is why my great-grandfather donated a great deal of money for the education of the young, so they can travel and see how democratic systems function in other countries and then apply this at home. We are continuing in this vein with the children in Israel through the Caesarea Foundation. We support them in their studies and educate them about the process. In return, we expect them to devote time afterward to help educate other children in the same way."
The Rothschild holdings in Israel include a bank branch that provides services to insurance companies, institutional investors and private clients as well as two buildings on Rothschild Boulevard in Tel Aviv that are being renovated.
"I believe that there is a demand for international investment services for Israeli institutions. In my opinion, the rules in Israel are too tough for institutional investors who want to invest internationally, and they are unable to act as they would wish. Israelis should invest abroad more than they are doing today, for two reasons: First, because investments should be diversified; and second, because the Israeli market is simply too small. In one way or another, Israeli institutions should be allowed to invest more in global markets."
The Rothschild Group manages around $3 billion in foreign investments for Israelis, mainly institutional investors but private individuals as well.
"I would like to increase this to about $10 billion within five years. In general we invest our clients' money in funds that we manage throughout Europe, or in funds of funds that are based in France and Luxembourg. We manage a large range of funds based on investment strategies and according to geographic regions. In the funds of funds we also manage large amounts of money through funds of others, not just our own."
With the name comes responsibility
After World War II, only the British and the French branches of the Rothschild family remained. In Britain the family has a "boutique" investment bank, NM Rothschild & Sons, which engages mainly in consulting, underwriting and mergers and acquisitions. In France the primary businesses are Rothschild & Cie Banque, owned by David de Rothschild, and the banks of his cousin Benjamin. David's has a higher public profile in Paris, because of its involvement in large industrial transactions, but the banking branch controlled by Benjamin is several times the size of Rothschild & Cie.
Benjamin's banks may be more boring and conservative, but before the global economic crisis they were valued at between 3 billion and 4 billion euro, compared to 1 billion for his cousin's bank. Moreover, banking is only one part of Benjamin's empire, which also includes wineries, hotels, real estate and a dairy farm specializing in making fine Brie cheese. The best known of his Bordeaux wineries are Chateaux Clarke, Malmaison and des Laurets, while the most famous, Chateau Lafite, is held in partnership with his cousins. Chateaux Mouton Rothschild and Mouton Cadet, two other wineries closely identified with the family, belong to a cousin, Philippine de Rothschild.
How much money do you manage in all your banks?
"Our total managed assets, depending on the specific period, range between 130 and 150 billion euro. The branch in Israel is a subsidiary of the bank in Paris, and the bank in Switzerland is a public company whose shares are traded on the Zurich stock exchange."
What is the bank's balance sheet?
"You have to remember that we are a private bank. The balance is of no interest because we do not provide credit. Our service takes the form of asset management and banking services, so that our risk is also very low. I hold 88 percent of the shares in the Swiss bank. The bank's market worth today is around 800 million Swiss francs [about $800 million - E.A. and G.R.]. In the other banks I hold 100 percent of the shares and everything is private."
So how much are you worth, in total?
"That depends a great deal on the value of the Rothschild brand name. It is difficult to know or even to estimate the worth. It changes. In any case nothing is for sale, but it's not clear how much our businesses are worth without the name. Until not long ago a private bank's value was usually calculated according to a ratio of 5 percent of its managed assets, but today that has dropped to 2 percent. The French press has estimated the worth of the banking group at 3 billion euro, but if you ask me, you can just as well flip a coin."
You are not just any tycoon - you are a scion of the Rothschild family. Does the family name bring with it a commitment, and if so how would you characterize it?
"It is definitely a commitment. It is responsibility that comes with the name, a tradition that has continued for a great many years. We have an obligation to continue the dynasty and a commitment to the employees and the clients. We have never followed the 'stop and go' method - meaning recruitment and dismissals according to the state of the business - as other banks do."
You have never laid off employees?
"Never. Even if there have been occasional hard times, we absorbed the blow but we kept the employees. You have to understand that when you have the name Rothschild people expect a great deal from you: donations, advice. They think you understand everything about business and they expect top performance and success. People think it's great good fortune to be part of the Rothschild family. I tell them it's not all that simple. There are pluses and minuses."
What are the pluses?
"The big plus is that the name opens all doors. People know me in every part of the world, even in problematic, remote or difficult countries. It is a highly regarded, well-known name."
Even now, with all the anti-Semitism?
"Even now. We do business with all kinds of countries, including Arab countries."
You have said that the future of the global economy lies in the East. But what does the Rothschild brand mean there, and how does it connect to the fact that it's Jewish?
"I think that for most people the brand is no longer Jewish. Here in France, for example, it is already a fully integrated part of the culture. In France and in many other countries the brand is actually associated more with our wine business and less with the banking end. It is extremely strong in the countries of the Mediterranean Basin, which of course includes Israel, where we have a long history. No streets in Tel Aviv have been named after HSBC or Barclays, but there is a Rothschild Boulevard."
How different are you from your father and your grandfather?
"I am very different. I am from a different generation; we don't live in the same world anymore, so it's not possible to be the same. They had a different lifestyle, a different way of working, different interests. The economic environment then was very prosperous, whereas the current financial situation is not good, and I don't think it will be good for the next 10 years."
Why not?
"After World War II it was difficult not to make money. In Israel 10 years ago it was difficult not to make money. Nowadays it is a very different story everywhere. There is low growth in the United States, maybe 1 percent. On the other hand, the developing countries are growing stronger and they control the world."
I understand that you put a lot of focus on emerging markets.
"Just this morning we had a discussion about the subject. Did you know that until 250 years ago China was the strongest country in the world? We already have a branch in Hong Kong and we are working with the Bank of China. We intend to increase our focus in that region. Our activity in Israel is also important to us. I see it as a bridge to developing countries, through our people there and your brains."
How does the Rothschild brand work in China?
"It turns out to be very well known. People carry out checks and research, discover the family's story and are very impressed. The Chinese are also amazed at the family's ability to maintain a dynasty for seven generations - that is a very important matter for them. The first question they always ask us is how we managed to maintain the family and the business dynasty for such a long time. And by the way, that is something the Israelis will have to learn. You never see more than two or three generations in Israel. For that, you need a good tax system and you need to open up to the world. International consultants who specialize in this should be brought to Israel. Your financial system needs to open up, in the same way the industrial sector did."
Why doesn't the family have businesses in the United States?
"We had a few assets there. My father owned the third largest bank in California, but he sold it. It is very difficult to run a bank across a nine-hour time difference. You have to deal with details and it's not convenient at all."
Recipes are for cake, not solving crises
After high school Benjamin de Rothschild was sent to the United States to study business. He chose California's Pepperdine University, on the Pacific Coast Highway in Malibu.
"Sea, sex and sun - we frolicked there. I achieved a very high level of surfing," he told a French newspaper a few years ago. After graduating he worked for family-owned banks in California before returning to Europe at 26 and establishing a financial risk management company. He went on to join the family business and in 1997, after his father died, he succeeded him as the group's owner and chairman. Along the way he married Ariane Langner. (See separate interview with the baroness .) They have four daughters.
Did you always know you would continue the dynasty and go into the business?
"I knew from the age of 4 - I was an only child. It was always clear and I was educated for it. It was clear that I would not go to work for a cellular phone company and that I would not launch a windmill business. I knew I would be a banker and I expect my girls to follow the same path." In the past, the Rothschild family did not always advance the women of the family. It's quite well known that the business was passed down only through the sons.
"That is true, but the world is changing. I think women today are better suited for business than men. The laws have also changed: One can no longer pass on the ownership and management to sons alone. That is no longer legal. My cousin has three daughters and a son, and even if he wanted to leave everything to the son he could not do so legally."
How did you come through the financial crisis?
"We came through it well, because our investment managers did not want to put money into crazy things. In 2010, for example, our portfolios yielded 5 percent, whereas the stock markets fell by 8 percent. People do not come to us to make a big profit but to preserve their wealth. The client knows we will not speculate with his money. In the crisis we also had clients come to us who fled from the big banks that encountered difficulties."
And you weren't involved in other investments or in real estate?
"We were not involved in real estate and we had no ties with [Bernard] Madoff. True, we missed part of the big surge that preceded the crisis, but we also missed the crisis and the collapse. Conservatism is genetic in our culture."
Looking back, what was the major cause of the crisis?
"Greed! Pure and simple. And it is going to happen again. This time it will happen in life insurance surety bonds. Wall Street is now making the same mistakes with insurance that it did with mortgages. They will never learn. When you see the amounts that are being paid now to securities traders in insurance bonds, you see pure madness. That is the difference between American capitalism and family capitalism. Unlike the Americans, we do not have to report on performance every quarter. We can take a much longer perspective and wait four or five years to get results. Quarterly profits will not change my life."
Looking at the aftermath of the financial crisis, would you say the problem lies in the world of finance, or is it due to a flaw in the free-market model?
"I think the problem lies in both. The American capitalist model has failed. Managing a family company is different from managing a company that is owned by others. In the latter situation you simply don't care about the shareholders - you do what you want. Look at what they did in Lehman Brothers: A few days before the crash they paid themselves bonuses and salaries of tens of millions of dollars. I'm sorry, but in my opinion that is a crime and they should have gone to jail. And, by the way, they also had a 'Jewish' name for a reputable business which they should have safeguarded."
What stage of the crisis are we now in - the beginning, the end, the middle?
"I don't have a clue in hell. You tell me. Anyone who answers that question is either a genius or a fraud. The American economy is still in the grip of a serious crisis; they have an employment problem that is going to get worse. One of the strengths of the United States lay in people's ability to move from one job to another. That has now come to a halt. They can't relocate because they can't sell their home. The United States is finished, at least for the moment. There will be more oversight, but people will always come up with new financial products that are not amenable to oversight. What's happening is that the firefighters keep arriving after the fire."
Is Europe in a better position?
"In many ways they do not have the same problems that the Americans have, but they also cannot print money like the Americans. There will be problems of ratings downgrades for countries and problems of market values. If you take the market value of the Greek government bonds, which is something like 70 cents on the euro, and make the European banks enter that value in their books, you will find that you have created a loss of more than 100 billion euro. For companies of the family capitalism type, by the way, I don't think the method of cost-accounting according to the market price is right. If you depreciate the reputation of a company like mine, what is left? There are cases in which write-offs are necessary, such as if a company you acquired is hurt. But if the conditions have not changed, why write off reputation?"
Do you have a recipe for resolving the crisis? What should the American and European governments do?
"I do not have a recipe for solving the crisis, but I do have a recipe for a good cake. I think that the leaders don't have a clue and don't have a solution, which is why they are compelled to behave mainly like politicians and mainly to talk. Look at the situation in France, for example: There are countrywide strikes because of a 1992 decision that set the retirement age at 60 and set a 35-hour work week. That has cost France hundreds of billions of euro. Now the retirement age has to be raised to 62 - and a million people take to the streets. The state is caught in a trap, the government can't lift a finger. It seems to me that both Europe and the United States will face large-scale problems of social unrest. Unemployment will increase and the middle class will lose a large portion of its wealth and its worth." What are the risks in the emerging markets - markets you are enthusiastic about - and the risks created by zero interest rates in the United States and Europe?
"The risks in the emerging markets are both political and legal: You should always think carefully about who you are cooperating with. The zero interest is a terrible thing: It suggests that money has no value, which I think is a very bad mentality for people and especially for educating the young generation. Even if the zero interest lowers the price of assets like real estate in the short term, I think money has a cost. Ultimately, the interest rates will return to their regular level, and in another 10 to 15 years could even be back to 8 percent.
"In Russia the interest rate is very high. At the same time, low interest creates inflation. Take, for example, the price of apartments in Paris. Ten years ago the prices were the same as they are today, but in French francs. In other words, they have risen more than sevenfold. The price of food and the price of a cup of coffee have also jumped. Sorry, but that's inflation. It's like financial reports: You can juggle them any way you like, but in the end the economic reality comes to light."
What will happen when interest rates rise? Will there be losses?
"Not necessarily. There are companies that pay handsome dividends, and if they want to hold on to their shareholders they will continue to pay. People are issuing bonds that will never reach redemption, and if there are people who will buy them it's their problem."
'I don't report to God'
Each of the family-owned companies has a board of directors. The French bank, for example, has eight directors. As the owner of 88 percent or 100 percent of each of the businesses, the baron notes, he is accountable only to his children and his ancestors.
But your daughters are still teenagers, not businesspeople. Who oversees your management of the companies?
"I am accountable to the people I employ. I am accountable to my wife and my children. I do not believe in God - I do not report to him."
What is the primary mission of the Rothschild family today? To what extent is it preserving the family's worth and wealth, and to what extent is it using its capabilities for socially responsible activities?
"It is a combination of the two, and the proportion changes every day, depending on which area one is talking about. Our philanthropic foundations are one thing; preserving the dynasty is another. I have to be certain that the next generation will also be able to engage in socially responsible activity, which is why I am not doing what my grandfather did. We were the first to launch activity aimed at forging a dialogue between Muslims, Christians and Jews, between imams and rabbis, and it was very successful. We sponsor considerable activity in the areas of social responsibility and environmental quality. We have hospitals, a drug rehab center and we offer scholarships. But we also have a responsibility to pass on to our children more wealth than we received."
What is your philanthropic strategy in Israel?
"The budget is about $16 million a year, and the main goal is education. That is the family's vision. In my father's time a large part of the money was earmarked for higher education: We distributed scholarships for study at universities such as INSEAD ["The Business School for the World," with campuses in France, Abu Dhabi and Singapore and a research center in Israel]. However, today the problem in Israel lies in more basic education, at the primary and high-school levels. The institutions are failing, so we are turning the spotlight on them. We will soon launch a major project called Leadership in which we will make money available to young people but will ask them to give in return - to society - during their studies."
What proportion of your total donations go to Israel?
"They constitute a major part. Ten years ago we opened a center for adults in France, which carries a yearly cost. It is not exactly traditional philanthropy, but it is a not-for-profit enterprise."
How important is it for you to preserve the family's Jewish character?
"It is important for us to preserve the Jewish memory. I am not a believer or a religious person, and my father was not religiously observant, either. I uphold the tradition on Yom Kippur, like everyone, and I send greetings at Rosh Hashanah."
What about your daughters? Would you want them to marry Jews?
"You try telling them what to do. My oldest daughter's boyfriend - she is 15 - is a Saudi. He is a great guy and if she will want to marry him, she can. If she brings home a black man and he is a good person, she will be able to marry him. Our role will then be to educate him to be part of the family. She will have to choose the right person. Nowadays it is impossible to force a person to choose a particular partner. It doesn't work anymore.
"And while we are on the subject of religion, let me tell you that the Jewish people made a very serious mistake by turning conversion into such a difficult process. Mathematically, if it goes on like this, the Jewish religion is liable to disappear. If someone wants to convert, let him convert. Don't make the procedure so complicated that people despair. If you want to become a Muslim it is very simple; if you want to become a Jew it is almost impossible. My mother was converted by a rabbi in Paris but the Orthodox establishment does not recognize her conversion, so that technically I am not a Jew. If so, why do you ask for money from a goy? I think the religious establishment will have to change a great many things in this area, because it's a matter of survival."
How technological are you? How much do you use cell phones or the Internet?
"I have the privilege of existing without a cellular phone. I don't have a BlackBerry or an iPhone. I have never had a mobile phone. The only time I use that kind of phone is when I am skiing with my daughters and we have to coordinate the time for lunch.
"I love computers and use them a lot in my work, of course. But no more than that. I don't read newspapers on the Internet, because I find it uncomfortable to read on the screen. I read the [International] Herald Tribune, the Financial Times and The Economist. I don't like the French papers because their approach is too political, from both sides. I use Reuters for news updates. I think the media should report the facts and not be political the way it is in France."
Yet your family has investments in the media, such as in the French newspaper Liberation. Why?
"It is not I who invested in Liberation but Edouard de Rothschild. I would not invest in that industry. The papers will write whatever they please anyway, so that even if you have a paper you cannot influence the content. Newspaper owners told me that their own paper writes the worst things about them, maybe due to competitive pressure. In any event, I think people will read fewer and fewer newspapers and that the Internet will become the main source of information. I'm sorry, but I think the newspaper business is dead. I am not saying it will happen within five years, but people are reading less and less."
How would you describe your management style, the organizational culture of the Rothschild Group?
"Our employees receive good salaries. We do not give many [stock] options or bonuses, but the employees know they will not be fired. Everything has a price. The salaries that were paid to managers in the United States make me boil. Instead of going to jail, people who failed in their jobs and harmed the business go home with salary packages of tens of millions of dollars. They are no better than Madoff."
What do you tell clients who ask you what to invest in?
"I tell them that if they want exact advice I will connect them with our experts in the areas about which they have expressed an interest. I always tell them that they should diversify their investment portfolio broadly and invest also in gold and commodities. And I don't like gold."
Why don't you like gold?
"That is a sensitive personal matter. Trading in gold has the feeling of something from the past. I know our family used to trade in gold, and as a trader or the owner of a business that trades in gold I actually like it. But to hold gold as an investment, in a safe - for me that is like holding government bonds. Both bonds and gold pay close to zero interest and for me that is untenable. Maybe it's an approach I adopted because the family had the good fortune not to get entangled in the failure of Russian government bonds in the early 20th century. My grandfather went to Russia and decided to sell all his holdings there. It was sheer luck that the family did not lose money in the wake of the Russian Revolution. Personally, I no longer trade, so I am less involved in what is happening in the market."
Still, people want you to whisper them some tip.
"You want names? Fine: These days it's good to hold shares of international corporations, companies that sell globally and especially in the East. There are quite a few Swiss firms like that, such as Nestle, but also American firms such as Johnson & Johnson and Pfizer. In my opinion, the technology industries will produce good yields, because the world is becoming increasingly high tech. I see my children playing on the computer and on their cellular phones every day, and the way they communicate among themselves. They no longer use the phone - it's all Internet."
Is anyone in your family on Facebook?
"Yes, I am. Someone opened a fake page in my name and I checked it out and then created a real page. But I don't think I have looked at the page for the past two years. I don't know how many friends I have. I think that Facebook and similar networks are open to investigations by the police and secret services, and I do not like to be under surveillance. I take great care to ensure that my life and my family's life are kept private. As far as I am concerned, the less we stand out the better. Why? First, I don't want my children to be surrounded by 40 bodyguards, because that is not a proper way to live. Second, there are people who don't like us. That is always a risk. In the past, when horrific stories about the family were published in the press, one could respond. Today, everything is uploaded to the Internet and YouTube and there is not much we can do. There are groundless, horrible stories there."
What does your schedule look like?
"I spend 90 percent of my time thinking about the business, but I don't feel I have to be in the office all the time. My work and my hobbies are very diversified, because we also have the wine business in many countries, and the cheese farm. So I find myself spending a great deal of time in many countries and in many places and also engaged in many fields of endeavor. And of course I like my own time: I love skiing and fast cars and motorcycles. There isn't a bone in my body that I haven't broken."
2 comments:
Anonymous said...
Pure Rhetoric for the gullible...
Deeds speak louder than words....
There is a huge gap between what this family says and does for generations....despite the changing of the "Guard".... no one is fooled by the "niceties" and utter contradictions....
I believe in the integrity of this guy because I have no good reason not to. Those conspiracy thinkers really annoy me, please people is you are frustrated with your life go find another job or something.
Cecil John RhodesDCL (5 July 1853 – 26 March 1902[1]) was an English-born businessman, mining magnate, and politician in South Africa. He was the founder of the diamond company De Beers, which today markets 40% of the world's rough diamonds and at one time marketed 90%.[2] An ardent believer in colonialism and imperialism, he was the founder of the state of Rhodesia, which was named after him. After independence, Rhodesia separated into the nations of Northern and Southern Rhodesia, later renamed Zambia and Zimbabwe, respectively. South Africa's Rhodes University is also named after him. He set up the provisions of the Rhodes Scholarship, which is funded by his estate.
"Cecil John Rhodes was as integral a participant in southern African and British imperial history as George Washington or Abraham Lincoln are in their respective eras in United States history. Thus most histories of South Africa covering the last decades of the nineteenth century are contributions to the historiography of Cecil Rhodes."[3]
Rhodes was born in 1853 in Bishop's Stortford, Hertfordshire, England. He was the fifth son of the Reverend Francis William Rhodes and his wife Louisa Peacock Rhodes. His father was a Church of Englandvicar who was proud of never having preached a sermon longer than 10 minutes. His siblings included Francis William Rhodes, who became an army officer.
A sickly, asthmatic adolescent, Cecil Rhodes was taken out of grammar school and sent to Natal, South Africa because his family thought the hot climate[clarification needed] would improve his health. They expected he would help his older brother Herbert[4] who operated a cotton farm.[5]
Rhodes as a boy
According to Basil Williams,[6] Rhodes left grammar school, where he had studied since since the age of nine, in 1869 "and continued his studies under his father's eye." However, "His health was weakly and there were even fears that he might be consumptive, a disease of which several of the family showed symptoms. His father therefore determined to send him abroad to try the effect of a sea voyage and a better climate. Herbert [Cecil's brother] had already set up as a planter in Natal, so to join Herbert in Natal Cecil was despatched on a sailing vessel. The voyage to Durban took him seventy days, and on 1 September 1870 he first set foot on African soil, a tall, lanky, anaemic, fair-haired boy, shy and reserved in bearing." He remained in Natal until October 1871, when he moved to the diamond fields, just opening up.
After a brief stay with the Surveyor-General of Natal, Dr. P.C. Sutherland, in Pietermaritzburg, Rhodes took an interest in agriculture. He joined his brother Herbert on his cotton farm in the Umkomazi valley in Natal. The land was unsuitable for cotton, and the venture failed. When he first came to Africa, Rhodes lived on money lent by his aunt Sophia.[7]
In October 1871, Rhodes and his brother Herbert left the colony for the diamond fields of Kimberley. Financed by N M Rothschild & Sons, over the next 17 years Rhodes succeeded in buying up all the smaller diamond mining operations in the Kimberley area. His monopoly of the world's diamond supply was sealed in 1889 through a strategic partnership with the London-based Diamond Syndicate. They agreed to control world supply to maintain high prices.[8][9] Rhodes supervised the working of his brother's claim and speculated on his behalf. Among his associates in the early days were John X. Merriman and Charles Rudd, who later became his partner in the De Beers Mining Company and Niger Oil Company.
During the 1880s Cape vineyards had been devastated by a phylloxera epidemic. The diseased vineyards were dug up and replanted, and farmers were looking for alternatives to wine. In 1892, Rhodes financed The Pioneer Fruit Growing Company at Nooitgedacht, a venture created by Harry Pickstone, an Englishman who had experience of fruit-growing in California.[10] In 1896 he began to pay more attention to fruit farming and bought farms in Groot Drakenstein, Wellington and Stellenbosch. A year later, Rhodes bought Rhone and Boschendal and commissioned Sir Herbert Baker to build him a cottage there.[10][11] The successful operation soon expanded into Rhodes Fruit Farms, and formed a cornerstone of the modern-day Cape fruit industry.[12][13]
A portrait bust of Rhodes on the first floor of No. 6 King Edward Street marks the place of his residence whilst in Oxford.
Rhodes attended the Bishop's StortfordGrammar School. In 1873, Rhodes left his farm field in the care of his business partner, Rudd, and sailed for England to complete his studies. He was admitted to Oriel College, Oxford, but stayed for only one term in 1873. He returned to South Africa and did not return for his second term at Oxford until 1876. He was greatly influenced by John Ruskin's inaugural lecture at Oxford, which reinforced his own attachment to the cause of British imperialism. Among his Oxford associates were Rochefort Maguire, later a fellow of All Souls College and a director of the British South Africa Company, and Charles Metcalfe. Due to his university career, Rhodes admired the Oxford "system". Eventually he was inspired to develop his scholarship scheme: "Wherever you turn your eye—except in science—an Oxford man is at the top of the tree".
While attending Oriel College, Rhodes became a Freemason in the Apollo University Lodge. Although initially he did not approve of the organisation, he continued to be a Freemason until his death in 1902. The failures of the Freemasons, in his mind, later caused him to envisage his own secret society with the goal of bringing the entire world under British rule.[5][14]
Whilst at Oxford, Rhodes continued to prosper in Kimberley. Before his departure for Oxford, he and C.D. Rudd had moved from the Kimberley Mine to invest in the more costly claims of what was known as old De Beers (Vooruitzicht). It was named after Johannes Nicolaas de Beer and his brother, Diederik Arnoldus, who occupied the farm. After purchasing the land in 1839 from David Danser, a Koranna chief in the area, Fourie had allowed the de Beers and various other Afrikaner families to cultivate the land. The region extended from the Modder River via the Vet River up to the Vaal River.[15][16][17]
In 1874 and 1875, the diamond fields were in the grip of depression, but Rhodes and Rudd were among those who stayed to consolidate their interests. They believed that diamonds would be numerous in the hard blue ground that had been exposed after the softer, yellow layer near the surface had been worked out. During this time, the technical problem of clearing out the water that was flooding the mines became serious. Rhodes and Rudd obtained the contract for pumping water out of the three main mines. It was during this period that Jim B. Taylor, still a young boy and helping to work his father's claim, first met Rhodes.
On 12 March 1880, Rhodes and Rudd launched the De Beers Mining Company after the amalgamation of a number of individual claims. With £200,000[18] of capital, the company, of which Rhodes was secretary, owned the largest interest in the mine.
In 1880, Rhodes prepared to enter public life at the Cape. With the earlier incorporation of Griqualand West into the Cape Colony under the Molteno Ministry in 1877, the area had obtained six seats in the Cape House of Assembly. Rhodes chose the constituency of Barkly West, a rural constituency in which Boer voters predominated. Barkly West remained faithful to Rhodes even after his support of the Jameson Raid against the Transvaal. He continued as its Member until his death.
When Rhodes became a member of the Cape Parliament, the chief goal of the assembly was to help decide the future of Basutoland. The ministry of Sir Gordon Sprigg was trying to restore order after the 1880 rebellion known as the Gun War. The Sprigg ministry had precipitated the revolt by applying its policy of disarming Africans to the Basuto. In 1890, Rhodes became Prime Minister of the Cape Colony and implemented laws that would benefit mine and industry owners. He introduced the Glen Grey Act to push black people from their lands and make way for industrial development. He also introduced educational reform to the area.
Rhodes' policies were instrumental in the development of British imperial policies in South Africa, such as the Hut tax. He did not, however, have direct political power over the Boer Republic of the Transvaal. He often disagreed with the Transvaal government's policies. He believed he could use his money and his power to overthrow the Boer government and install a British colonial government supporting mine-owners' interests in its place.
In 1895, Rhodes supported an attack on the Transvaal, the infamous Jameson Raid, which proceeded with the tacit approval of Secretary of State for the Colonies Joseph Chamberlain. The raid was a catastrophic failure. It forced Cecil Rhodes to resign as Prime Minister of the Cape Colony, sent his oldest brother Col. Frank Rhodes to jail in Transvaal convicted of high treason and nearly sentenced to death, and led to the outbreak of both the Second Matabele War and the Second Boer War.
Rhodes used his wealth and that of his business partner Alfred Beit and other investors to pursue his dream of creating a British Empire in new territories to the north by obtaining mineral concessions from the most powerful indigenouschiefs. Rhodes' competitive advantage over other mineral prospecting companies was his combination of wealth and astute political instincts, also called the 'imperial factor', as he used the British Government. He befriended its local representatives, the British Commissioners, and through them organised British protectorates over the mineral concession areas via separate but related treaties. In this way he obtained both legality and security for mining operations. He could then win over more investors. Imperial expansion and capital investment went hand in hand.[19]
The imperial factor was a double-edged sword: Rhodes did not want the bureaucrats of the Colonial Office in London to interfere in the Empire in Africa. He wanted British settlers and local politicians and governors to run it. This put him on a collision course with many in Britain, as well as with British missionaries, who favoured what they saw as the more ethical direct rule from London. Rhodes won because he would pay to administer the territories north of South Africa against future mining profits. The Colonial Office did not have the funds to do it. Rhodes promoted his business interests as in the strategic interest of Britain: preventing the Portuguese, the Germans or the Boers from moving in to south-central Africa. Rhodes' companies and agents cemented these advantages by obtaining many mining concessions, as exemplified by the Rudd and Lochner Concessions.[19]
Rhodes had already tried and failed to get a mining concession from Lobengula, king of the Ndebele of Matabeleland. In 1888 he tried again. He sent John Moffat, son of the missionary Robert Moffat, who was trusted by Lobengula, to persuade the latter to sign a treaty of friendship with Britain, and to look favourably on Rhodes' proposals. His agent Francis Thompson, who had travelled to Bulawayo in the company of Charles Rudd and Rochfort Maguire, assured Lobengula that no more than ten white men would mine in Matabeleland. This limitation was left out of the document which Lobengula signed, known as the Rudd Concession. Furthermore it stated that the mining companies could do anything necessary to their operations. When Lobengula discovered later the true effects of the concession, he tried to renounce it, but the British Government ignored him.[19]
Armed with the Rudd Concession, in 1889 Rhodes obtained a charter from the British Government for his British South Africa Company (BSAC) to rule, police and make new treaties and concessions from the Limpopo River to the great lakes of Central Africa. He obtained further concessions and treaties north of the Zambezi, such as those in Barotseland (the Lochner Concession with King Lewanika in 1890, which was similar to the Rudd Concession); and in the Lake Mweru area (Alfred Sharpe's 1890 Kazembe concession). Rhodes also sent Sharpe to get a concession over mineral-rich Katanga, but met his match in ruthlessness: when Sharpe was rebuffed by its ruler Msiri, King Leopold II of Belgium obtained a concession over Msiri's dead body for his Congo Free State.[20]
Rhodes also wanted Bechuanaland Protectorate (now Botswana) under the BSAC charter. But three Tswana kings, including Khama III, travelled to Britain and won over British public opinion for it to remain governed by the British Colonial Office in London. Rhodes commented: "It is humiliating to be utterly beaten by these niggers."[19]
The British Colonial Office also decided to administer British Central Africa (Nyasaland, today's Malawi) owing to the activism of Scotsmissionaries trying to end the slave trade. Rhodes paid much of the cost so that the British Central Africa Commissioner Sir Harry Johnston, and his successor Alfred Sharpe, would assist with security for Rhodes in the BSAC's north-eastern territories. Johnston shared Rhodes' expansionist views, but he and his successors were not as pro-settler as Rhodes, and disagreed on dealings with Africans.
Rhodes makes peace with the Ndebele, Matobo Hills, 1896. Sketch by Robert Baden-Powell.
The BSAC had its own police force, the British South Africa Police which was used to control Matabeleland and Mashonaland, in present-day Zimbabwe.[citation needed] The company had hoped to start a "new Rand" from the ancient gold mines of the Shona. Because the gold deposits were on a much smaller scale, many of the white settlers who accompanied the BSAC to Mashonaland became farmers rather than miners. When the Ndebele and the Shona—the two main, but rival peoples—separately rebelled against the coming of the European settlers, the BSAC defeated them in the two Matabele Wars (1893–94; 1896–97). Shortly after learning of the assassination of the Ndebele spiritual leader, Mlimo, by the American scout Frederick Russell Burnham, Rhodes walked unarmed into the Ndebele stronghold in Matobo Hills. He persuaded the Impi to lay down their arms, thus ending the Second Matabele War.[21]
By the end of 1894, the territories over which the BSAC had concessions or treaties, collectively called "Zambesia" after the Zambezi River flowing through the middle, comprised an area of 1,143,000 km² between the Limpopo River and Lake Tanganyika. In May 1895, its name was officially changed to "Rhodesia", reflecting Rhodes' popularity among settlers who had been using the name informally since 1891. The designation Southern Rhodesia was officially adopted in 1898 for the part south of the Zambezi, which later became Zimbabwe; and the designations North-Western and North-Eastern Rhodesia were used from 1895 for the territory which later became Northern Rhodesia, then Zambia.[22][23]
Rhodes decreed in his will that he was to be buried in Matobo Hills. After his death in the Cape in 1902, his body was transported by train to Bulawayo. His burial was attended by Ndebele chiefs, who asked that the firing party should not discharge their rifles as this would disturb the spirits. Then, for the first time, they gave a white man the Matabele royal salute, Bayete. Rhodes was buried alongside Leander Starr Jameson and 34 British soldiers killed in the Shangani Patrol.[24]
One of Rhodes' dreams (and the dream of many other members of the British Empire) was for a "red line" on the map from the Cape to Cairo. (On geo-political maps, British dominions were always denoted in red or pink.) Rhodes had been instrumental in securing southern African states for the Empire. He and others felt the best way to "unify the possessions, facilitate governance, enable the military to move quickly to hot spots or conduct war, help settlement, and foster trade" would be to build the "Cape to Cairo Railway".
This enterprise was not without its problems. France had a rival strategy in the late 1890s to link its colonies from west to east across the continent. The Portuguese produced the "Pink Map", representing their claims to sovereignty in Africa.
Rhodes wanted to expand the British Empire because he believed that the Anglo-Saxonrace was destined to greatness. In his last will and testament, Rhodes said of the British, "I contend that we are the first race in the world and that the more of the world we inhabit the better it is for the human race."[25] He wanted to make the British Empire a superpower in which all of the British-dominated countries in the empire, including Canada, Australia, New Zealand, and Cape Colony, would be represented in the British Parliament. He supported the ideas of lebensraum and mercantilism, which were popular at the time, even if they were expressed more politely by others.[26] Rhodes included American students as eligible for the Rhodes scholarships. He said that he wanted to breed an American elite of philosopher-kings who would have the United States rejoin the British Empire. As Rhodes also respected the Germans and admired the Kaiser, he allowed German students to be included in the Rhodes scholarships. He believed that eventually the United Kingdom (including Ireland), the USA and Germany together would dominate the world and ensure peace.[7]
On domestic politics within the United Kingdom, Rhodes was a supporter of the Liberal Party.[7] Rhodes' only major impact on domestic politics within the United Kingdom was his support of the Irish nationalist party, led by Charles Stewart Parnell (1846–1891). He contributed a great deal of money to the Irish nationalists,[5][7] although Rhodes made his support conditional upon an autonomous Ireland's still being represented in the British Parliament.[7] Rhodes was such a strong supporter of Parnell that, after the Liberals and the Irish nationalists disowned him after his was wrongly accused of committing adultery with the wife of another Irish nationalist, and was only cleared after a long court battle, Rhodes continued his support.[5]
Rhodes was more tolerant of the Dutch-speaking whites in the Cape Colony than were the other English-speaking whites in the Cape Colony. He supported teaching Dutch as well as English in public schools in the Cape Colony and lent money to support this cause. While Prime Minister of the Cape Colony, he helped to remove most of the legal disabilities that English-speaking whites had imposed on Dutch-speaking whites.[7] He was a friend of Jan Hofmeyr, leader of the Afrikaner Bond, and it was largely because of Afrikaner support that he became Prime Minister of the Cape Colony.[5][7] Rhodes advocated greater self-government for the Cape Colony, in line with his preference for the empire to be controlled by local settlers and politicians rather than by London (see "Rhodes and the imperial factor" above).
Confusingly for the modern reader, self-government of the type Rhodes supported was known as "colonialism". The opposed policy, direct control of a colony from London, was known as "imperialism". This should be kept in mind when reading documents from this time.
Rhodes never married, pleading "I have too much work on my hands" and saying that he would not be a dutiful husband.[27] Some writers and academics[28][29] have suggested that Rhodes may have been homosexual.
The scholar Richard Brown observed: "there is still the simpler but major problem of the extraordinarily thin evidence on which the conclusions about Rhodes are reached. Rhodes himself left few details... Indeed, Rhodes is a singularly difficult subject... since there exists little intimate material – no diaries and few personal letters."[30]
Brown also comments: "On the issue of Rhodes' sexuality... there is, once again, simply not enough reliable evidence to reach firm, irrefutable conclusions. It is inferred, but not proved, that Rhodes was homosexual and it is assumed (but not proved) that his relationships with men were sometimes physical. Neville Pickering is described as Rhodes' lover in spite of the absence of decisive evidence."[30]
Rhodes was close to Pickering; he returned from negotiations for Pickering's 25th birthday in 1882. On that occasion, Rhodes drew up a new will leaving his estate to Pickering.[27] Two years later, Pickering suffered a riding accident. Rhodes nursed him faithfully for six weeks, refusing even to answer telegrams concerning his business interests. Pickering died in Rhodes' arms, and at his funeral Rhodes was said to have wept with fervor.[28]
Rhodes' tomb
His successor was Henry Latham Currey, the son of an old friend, who had become Rhodes's private secretary in 1884.[31] When Currey got engaged in 1894, Rhodes was deeply mortified and their relationship split.[32]
Rhodes also remained close to Leander Starr Jameson after the two had met in Kimberley, where they shared a bungalow.[33] In 1896 Earl Grey came to give Rhodes bad news. Rhodes instantly jumped to the conclusion that Jameson, who was ill, had died. On learning that his house had burnt down he commented, "Thank goodness. If Dr. Jim had died, I should never have got over it."[34] Jameson nursed Rhodes during his final illness, was a trustee of his estate and residuary beneficiary of his will, which allowed him to continue living in Rhodes' mansion after his death. Rhodes' secretary, Jourdan, who was present shortly after Rhodes' death said, "Jameson was fighting against his own grief ... No mother could have displayed more tenderness towards the remains of a loved son". Jameson died in England in 1917, but after the war in 1920 his body was transferred to a grave beside that of Rhodes on Malindidzimu Hill or World's View, a granite hill in the Matopo National Park 40 km south of Bulawayo.[35]
In the last years of his life, Rhodes was stalked by Polish princess Catherine Radziwiłł, born Rzewuska, married into a noble Polish-Lithuanian dynasty called Radziwiłł. Radziwiłł falsely claimed that she was engaged to Rhodes, or that they were having an affair. She asked him to marry her, but Rhodes refused. She got revenge by falsely accusing him of loan fraud. He had to go to trial and testify against her accusation. He died shortly after the trial in 1902. She wrote a biography of Rhodes called Cecil Rhodes: Man and Empire Maker. Her accusations were eventually proved false.[5][36]
During the Boer Wars Rhodes went to Kimberley at the onset of the siege, in a calculated move to raise the political stakes on the government to dedicate resources to the defence of the city. The military felt he was more of a liability than an asset and found him intolerable. In particular, Lieutenant Colonel Kekewich disliked Rhodes because of Rhodes' inability to cooperate with the military;[37] Rhodes insisted that the military should adopt his plans and ideas instead of following their orders.[5][38] Despite the differences, Rhodes' company was instrumental in the defence of the city, providing water, refrigeration facilities, constructing fortifications, manufacturing an armoured train, shells and a one-off gun named Long Cecil.[39]
Rhodes used his position and influence to lobby the British government to relieve the siege of Kimberley, claiming in the press that the situation in the city was desperate. The military wanted to assemble a large force to take the Boer cities of Bloemfontein and Pretoria, but they were compelled to change their plans and send three separate smaller forces to relieve the sieges of Kimberley, Mafeking and Ladysmith.[40]
Funeral of Rhodes in Adderley St, Cape Town on 3 April 1902
Although Rhodes remained a leading figure in the politics of southern Africa, especially during the Second Boer War, he was dogged by ill health throughout his relatively short life. He was sent to Natal aged 16 because it was believed the climate might help problems with his heart. On returning to England in 1872 his health again deteriorated with heart and lung problems, to the extent that his doctor believed he would only survive six months. He returned to Kimberley where his health improved. From age 40 his heart condition returned with increasing severity until his death from heart failure in 1902, aged 48, at his seaside cottage in Muizenberg.[1] The Government arranged an epic journey by train from the Cape to Rhodesia, with the funeral train stopping at every station to allow mourners to pay their respects. He was finally laid to rest at World's View, a hilltop located approximately 35 kilometres (22 mi) south of Bulawayo, in what was then Rhodesia. Today, his grave site is part of Matobo National Park, Zimbabwe.
At his death he was considered one of the wealthiest men in the world. In his first will, of 1877, (before he had accumulated his wealth), Rhodes wanted to create a secret society that would bring the whole world under British rule.[5] The exact wording from this will is:
To and for the establishment, promotion and development of a Secret Society, the true aim and object whereof shall be for the extension of British rule throughout the world, the perfecting of a system of emigration from the United Kingdom, and of colonisation by British subjects of all lands where the means of livelihood are attainable by energy, labour and enterprise, and especially the occupation by British settlers of the entire Continent of Africa, the Holy Land, the Valley of the Euphrates, the Islands of Cyprus and Candia, the whole of South America, the Islands of the Pacific not heretofore possessed by Great Britain, the whole of the Malay Archipelago, the seaboard of China and Japan, the ultimate recovery of the United States of America as an integral part of the British Empire, the inauguration of a system of Colonial representation in the Imperial Parliament which may tend to weld together the disjointed members of the Empire and, finally, the foundation of so great a Power as to render wars impossible, and promote the best interests of humanity.[41]
Rhodes' final will[42] left a large area of land on the slopes of Table Mountain to the South African nation. Part of this estate became the upper campus of the University of Cape Town, another part became the Kirstenbosch National Botanical Garden, while much was spared from development and is now an important conservation area.
In his last will and testament, he provided for the establishment of the famous Rhodes Scholarship,[42] the world's first international study programme. The scholarship enabled students from territories under British rule, formerly under British rule, and from Germany, to study at the University of Oxford.[42]
His birthplace was established as a museum in 1938, now known as Bishops Stortford Museum.[44] The cottage in Muizenberg where he died is a South African national monument. The cottage today is operated as a museum by the Muizenberg Historical Conservation Society, and is open to the public. A broad display of Rhodes material can be seen, including the original De Beers board room table around which diamonds worth billions of dollars were traded.[citation needed]
Rhodes University College, now Rhodes University, in Grahamstown, was established in his name by his trustees and founded by Act of Parliament on 31 May 1904.
The residents of Kimberley elected to build a memorial in Rhodes' honour in their city, which was unveiled in 1907. The 72-ton bronze statue depicts Rhodes on his horse, looking north with map in hand, and dressed as he was when met the Ndebele after their rebellion.[45]
"To think of these stars that you see overhead at night, these vast worlds which we can never reach. I would annexe the planets if I could; I often think of that. It makes me sad to see them so clear and yet so far."[46]
“Pure philanthropy is very well in its way but philanthropy plus five percent is a good deal better.”[47]
"I contend that we are the first race in the world, and that the more of the world we inhabit the better it is for the human race...If there be a God, I think that what he would like me to do is paint as much of the map of Africa British Red as possible..."[48]
"In order to save the forty million inhabitants of the United Kingdom from a bloody civil war, our colonial statesmen must acquire new lands for settling the surplus population of this country, to provide new markets... The Empire, as I have always said, is a bread and butter question"[49]
"Remember that you are an Englishman, and have consequently won first prize in the lottery of life."[50]
"Equal Rights for all Civilized Men South of the Zambesi"[51]
"To be born English is to win first prize in the lottery of life."[52]
See above.
“We must find new lands from which we can easily obtain raw materials and at the same time exploit the cheap slave labour that is available from the natives of the colonies. The colonies would also provide a dumping ground for the surplus goods produced in our factories.”[53][54]
The wording in this quote disputed and original source is unknown.
Mark Twain's summation of Rhodes ("I admire him, I frankly confess it; and when his time comes I shall buy a piece of the rope for a keepsake"), from Chapter LXIX of Following the Equator, still often appears in collections of famous insults.[55] His account of how "Cecil Rhodes" made his first fortune by discovering, in Australia, in the belly of a shark, a newspaper that gave him advance knowledge of a great rise in wool prices, is completely apocryphal – Twain dates the event at 1870, when Rhodes was in South Africa – yet is occasionally accepted as true (see a posting on Yahoo Answers at http://answers.yahoo.com/question/index?qid=20080407061220AAi5ap3 (retrieved 22 May 2011.)
The will of Cecil Rhodes is the central theme in the science fiction book Great Work of Time by John Crowley, an alternate history in which the Secret Society stipulated in the will was indeed established. Its members eventually achieve the secret of time travel and use it to restrain World War I and prevent World War II, and to perpetuate the world ascendancy of the British Empire up to the end of the Twentieth Century. The book contains a vivid description of Cecil Rhodes himself, seen through the eyes of a traveller from the future British Empire.
In 1996, BBC-TV made an eight-part television drama about Rhodes called Rhodes: The Life and Legend of Cecil Rhodes. It was produced by David Drury and written by Antony Thomas. It tells the story of Rhodes' life through a series of flashbacks of conversations between him and Princess Catherine Radziwill and also between her and people who knew him. It also shows the story of how she stalked and eventually ruined him. In the serial, Cecil Rhodes is played by Martin Shaw, the younger Cecil Rhodes is played by his son Joe Shaw, and Princess Radziwill is played by Frances Barber. In the serial Rhodes is portrayed as ruthless and greedy. The serial also suggests that he was homosexual.[57]
In 1901, Rhodes bought Dalham Hall, Suffolk. In 1902 Colonel Francis William Rhodes erected the village hall[58] in the village of Dalham, to commemorate the life of his brother, who had died before taking possession of the estate.
Rhodes was a peripheral but influential character in the historical novel The Covenant by James A. Michener.
His memorial at Devil's Peak also served as a temple in The Adventures of Sinbad episode The Return of the Ronin.
Rhodes has been portrayed by Dr. C. Magbaily Fyle as a violent and brutal racist who used forced labour tactics as a means of founding De Beers and other portions of his lucrative success.[59]
^ ab "Death Of Mr. Rhodes", The Times, 27 March 1902; pg. 7
^ Martin Meredith, Diamonds Gold and War, (New York: Public Affairs, 2007):162
^ Richard A. McFarlane. Historiography of Selected Works on Cecil John Rhodes (1853–1902). History in Africa, Vol. 34 (2007), pp. 437–446 (available in JSTOR)
^ Cecil J. Rhodes, "Confession of Faith," essay included in The Last Will and Testament of Cecil John Rhodes, ed. WT Stead (Review of Reviews Office: London), 1902.
^ Thomas, Antony (1996) Encyclopaedia of National Biography University of Oxford.
^ ab Brown, Richard, Review: The Colossus. The Journal of African History, Vol.31 No.3 (1990) pp.499–502.
^Currey, John Blades (1986). Phillida Brooke Simons. ed. John Blades Currey, 1850 to 1900: Fifty Years in the Cape Colony. Brenthurst Press. pp. 26. ISBN0909079315.
^Robert I. Rotberg and Miles F. Shore (1988). The Founder: Cecil Rhodes and the Pursuit of Power. Oxford University Press. pp. 394. ISBN0195049683.
^Robert Massie (1991). Dreadnought:Britain, Germany and the coming of the Great War. London: Johnathan Cape. pp. 218, 230. ISBN0224032607.
^William Thomas Stead (1902). 'The last will and testament of Cecil John Rhodes: with elucidatory notes to which are added some chapters describing the political and religious ideas of the testator. London: 'Review of Reviews'. p. 178.
^Ian Duncan Colvin (1922). The Life of Jameson. London: E. Arnold and Co.. pp. 209, 320.
^Roberts, Brian (1969). Cecil Rhodes and the princess. Hamilton. ISBN0-241-01603-7.
^ Pakenham, Thomas (1992) The Boer War Avon Books ISBN 0380720019
^Roberts, Brian (1976). Kimberley: Turbulent City. Cape Town: D. Philip in association with the Historical Society of Kimberley and the Northern Cape. ISBN0949968625.
^William Simpson; Martin Desmond Jones (2000). Googleooks entry. Routledge. Retrieved 13 June 2009.
^"The lottery of life", The Independent, 5 May 2001, www.independent.co.uk. Retrieved on 26 January 2010.
^ Gordon Le Sueur 'Cecil Rhodes the Man and His Work', pg. 76
Le Sueur states that Rhodes originally said: "Equal rights for all white men south of the Zambesi", but when asked to verify his statement, "clarified" it, and it was the "clarified" wording which the press published.
A holding company with a select portfolio representing many of the Group's non-listed Asian businesses, principally in engineering and construction, transport services, restaurants and IT services. (100%)
A group engaged in the sales and service of motor vehicles in Hong Kong, Macau and the United Kingdom, and with a large and growing presence in Southern China. (100%)
A leading listed insurance and reinsurance broker, risk specialist and employee benefits consultant, combining specialist skills in the London insurance market with an international network. (32%)
A listed company holding most of the Group's major listed interests, including 55% of Jardine Matheson. (82%)
(Figures in brackets show effective ownership by Jardine Matheson as at 30th June 2011.)
A listed property group with some 450,000 sq. m. of prime commercial property in central Hong Kong and further high quality commercial and residential developments in Asia. (50%)
A listed pan-Asian retail
group operating over
5,300 outlets, including supermarkets, hypermarkets, health and beauty stores, convenience stores, home furnishings stores and restaurants. (78%)
A listed hotel investment and management group with a portfolio of 42 deluxe and first class hotels and resorts worldwide, including 16 under development. (74%)
An unlisted holding company, Rothschilds Continuation has various interests, including global financial advisory, wealth management and trusts.(21%)
A Singapore-listed company with an interest of just over 50% in Astra, a major listed Indonesian conglomerate, and other motor interests in Southeast Asia. (71%)
The largest Indonesian motor group, manufacturing, assembling and distributing motor vehicles, motorcycles and components in partnership with industry leaders such as Toyota, Daihatsu and Honda.
Astra's financial services businesses consist of consumer finance (principally motor vehicle and motorcycle), insurance and Bank Permata.
Astra's other interests include oil palm plantations, heavy equipment and mining, infrastructure and logistics, and information technology.
(Figures in brackets show effective ownership by Jardine Strategic as at 30th June 2011.)
The Keswick family (pronounced with a silent "w", "Kezzick") are a business dynasty of Scottish origin associated with the Far East since 1855 and in particular the conglomerate Jardine Matheson.
William Keswick, founder of the dynasty, was born in 1834, in Dumfriesshire in the Scottish Lowlands. His grandmother, Jean Jardine Johnstone was an older sister of Dr. William Jardine, the founder of Jardine's. His father Thomas Keswick had married Margaret Johnstone, Jardine's niece and daughter of Jean, and entered the Jardine business. The company operated as merchant traders and had a major influence in the First and Second Opium Wars although the company stopped this trading in 1870 to pursue a broad range of other trading interests including shipping, railways, textiles and property development.
William arrived in China and Hong Kong in 1855, the first of five generations of the Keswick family to be associated with Jardine's. He established a Jardine Matheson office in Yokohama, Japan in 1859. He returned to Hong Kong to become a partner of the firm in 1862. He became managing partner (Taipan) from 1874 to 1886. He left Hong Kong in 1886 to work with Matheson & Co. in London as a senior director responsible only to Sir Robert Jardine (1825-1905), a son of David Jardine, William Jardine's older brother and the head of Matheson's in London.
He spent three spells on the Legislative and Executive Councils of Hong Kong between 1868 and 1887.
[edit]The Hon. James Johnstone Keswick (1845-1914)
J.J. Keswick, younger brother of William, arrived in the Far East in 1870 and remained for 26 years, mostly based in Hong Kong. Nicknamed, "James the bloody polite", a tribute to his personality. Like his brother, he was a Member of the Legislative Council and of the Chamber of Commerce in five spells between 1890 to 1900. He was taipan of Jardine, Matheson from the 1890s to the turn of the century. He founded Hongkong Land together with close associate Sir Paul Chater, a development company established in 1889 which remained closely associated with Jardine Matheson.
Son of William Keswick, Henry Keswick arrived in Hong Kong in 1895 the year before his Uncle James left. He had previously spent two years in the New York office of Jardine's.
The first gap in the long line of continuous association with Hong Kong occurred when he returned home to represent Hong Kong at the coronation of King George V in 1911. He did return to Hong Kong and the Far East in his yacht "Cutty Sark" in 1922. He remained a Director of Jardines until his death in 1928.
The next family members to be associated with Hong Kong and Shanghai were Henry's sons "Tony" and John Keswick. As well as being directors of Jardines they served as members of the Legislative and Executive Councils in Hong Kong and of the Council of the International Settlement in Shanghai. They were also Chairmen of the Shanghai Municipal Council and Chamber of Commerce at various times. When William and his father Henry Keswick returned to the United Kingdom they both served as Members of Parliament with responsibility for Far Eastern interests.
[edit]Sir William Johnstone "Tony" Keswick (1903-1990)
"Tony" Keswick arrived in the far east in 1926. He and his brother remained Directors of the firm after they had left the Far East. He was in charge of the Shanghai office (at that time the Head Office in the Far East) from 1935 until 1941. He was also Chairman of the Shanghai Municipal Council during the crises leading to the Pacific War. He was shot in the arm by a Japanese at a Municipal Election Meeting held on the Shanghai Racecourse in 1941. The company's Chinese business interests were looted by occupying Japanese forces.
During World War II, he, along with his brother John, served as senior intelligence operatives with the British Special Operations Executive (SOE).
He was a friend of the sculptor Henry Moore and placed several statues in particularly scenic spots on the hillsides of the Keswick estate.[1]
[edit]The Hon. Sir John "The Younger" Keswick (1906-1982)
John followed his brother to the far east in 1929, and replaced him in Shanghai after the shooting incident. He fled the city when the Japanese took the city. He escaped to Ceylon (Sri Lanka) and served during the war with Admiral Lord Louis Mountbatten's staff.
John Keswick returned to Shanghai after the war to organize in the rebuilding of Jardine's office and to reestablish the firm's trading links throughout China and Asia. In 1949, after the communist party's takeover of China. Jardine's head office was moved to Hong Kong. Despite attempting to work with the communists business conditions became worse. Operations were closed in 1954 with the effective nationalisation of the company's interests and a $20m loss.
John Keswick became a member of the Hong Kong Executive Council in 1952. He retired as Tai-pan in 1953 and joined Matheson & Co in 1956. He returned temporarily as non-executive Chairman of Jardine Matheson in Hong Kong in 1970 to 1972. While in England he and his brother financed the buy-out and then public flotation of Jardine Matheson.
Tony Keswick's son, Young Henry, born 1938 as Henry Neville Lindley Keswick, joined Jardine's in 1961 and was assigned to the firm's offices in Hong Kong, Singapore and Malaysia. He was made a Director in 1967, Senior Managing Director in 1970 and Chairman in 1972. He retired as Senior Managing Director and Chairman in 1975. He returned to London and is the current chairman of Jardine Matheson Holdings.
Sir Chips Keswick, Tony Keswick's second son who was born in 1940, was not associated with Jardine Matheson but instead with the London merchant bank, Hambros.
Young Henry's youngest brother, Simon Keswick, born 1942, also joined the firm in 1962 and a Director in 1972 but left Jardine's in 1977 to join his brother at Matheson & Co. He returned to join Jardine's again in 1983 as Senior Managing Director and then Chairman after his father managed to remove the former managing director David Newbigging. Simon Keswick started the restructuring of the company becoming more international rather than tied to Hong Kong.
Simon Keswick retired as Tai-pan in 1988 after seeing the firm's holding office redomiciled to Bermuda and restructuring the firm's senior management organization.
Percy Weatherall (born 1957) or Edward Percy Keswick Weatherall, is a great grandson of Henry Keswick (1870-1928). He was Managing Director of the Jardine Matheson Group from 2000 to 31 March 2006 having joined the board in 1999.
Mr. Weatherall joined the Jardine Group in 1976 and worked in a number of senior executive positions in Hong Kong, the USA, the United Kingdom, Saudi Arabia, Korea and the Philippines. Prior to becoming "Taipan", Mr. Weatherall was chief executive officer of Hongkong Land.
Ben Keswick, son of Simon, born 1972, joined the Board in April 2007. He is group managing director of Jardine Cycle & Carriage. He joined the Group in 1998 and held positions in Dairy Farm and Hongkong Land before taking an MBA at INSEAD. In 2003, he was appointed finance director of Jardine Pacific, and was its chief executive officer from 2005 to 2007. Ben Keswick is a director of Jardine Matheson Limited, Cycle & Carriage Bintang and MCL Land; and a commissioner of Astra and United Tractors.
Adam Keswick, born 1973, son of Chips, joined the Board in April 2007. He is chief executive of Jardine Pacific and of Jardine Motors. After joining the Group in 2001 from N M Rothschild & Sons, he held positions within Group Treasury and Jardine Pacific. Mr Keswick was appointed group strategy director of Jardine Cycle & Carriage in 2003, and was group managing director from 2005 to 2007. He is also a director of Jardine Matheson Limited.
(A) For the purposes of this section: “Attorney General” means the Attorney General of the United States; “Organization” means any group, club, league, society, committee, association, political party, or combination of individuals, whether incorporated or otherwise, but such term shall not include any corporation, association, community chest, fund, or foundation, organized and operated exclusively for religious, charitable, scientific, literary, or educational purposes; “Political activity” means any activity the purpose or aim of which, or one of the purposes or aims of which, is the control by force or overthrow of the Government of the United States or a political subdivision thereof, or any State or political subdivision thereof; An organization is engaged in “civilian military activity” if: (1) it gives instruction to, or prescribes instruction for, its members in the use of firearms or other weapons or any substitute therefor, or military or naval science; or (2) it receives from any other organization or from any individual instruction in military or naval science; or (3) it engages in any military or naval maneuvers or activities; or (4) it engages, either with or without arms, in drills or parades of a military or naval character; or (5) it engages in any other form of organized activity which in the opinion of the Attorney General constitutes preparation for military action; An organization is “subject to foreign control” if: (a) it solicits or accepts financial contributions, loans, or support of any kind, directly or indirectly, from, or is affiliated directly or indirectly with, a foreign government or a political subdivision thereof, or an agent, agency, or instrumentality of a foreign government or political subdivision thereof, or a political party in a foreign country, or an international political organization; or (b) its policies, or any of them, are determined by or at the suggestion of, or in collaboration with, a foreign government or political subdivision thereof, or an agent, agency, or instrumentality of a foreign government or a political subdivision thereof, or a political party in a foreign country, or an international political organization. (B) (1) The following organizations shall be required to register with the Attorney General: Every organization subject to foreign control which engages in political activity; Every organization which engages both in civilian military activity and in political activity; Every organization subject to foreign control which engages in civilian military activity; and Every organization, the purpose or aim of which, or one of the purposes or aims of which, is the establishment, control, conduct, seizure, or overthrow of a government or subdivision thereof by the use of force, violence, military measures, or threats of any one or more of the foregoing. Every such organization shall register by filing with the Attorney General, on such forms and in such detail as the Attorney General may by rules and regulations prescribe, a registration statement containing the information and documents prescribed in subsection (B)(3) and shall within thirty days after the expiration of each period of six months succeeding the filing of such registration statement, file with the Attorney General, on such forms and in such detail as the Attorney General may by rules and regulations prescribe, a supplemental statement containing such information and documents as may be necessary to make the information and documents previously filed under this section accurate and current with respect to such preceding six months' period. Every statement required to be filed by this section shall be subscribed, under oath, by all of the officers of the organization. (2) This section shall not require registration or the filing of any statement with the Attorney General by: (a) The armed forces of the United States; or (b) The organized militia or National Guard of any State, Territory, District, or possession of the United States; or (c) Any law-enforcement agency of the United States or of any Territory, District or possession thereof, or of any State or political subdivision of a State, or of any agency or instrumentality of one or more States; or (d) Any duly established diplomatic mission or consular office of a foreign government which is so recognized by the Department of State; or (e) Any nationally recognized organization of persons who are veterans of the armed forces of the United States, or affiliates of such organizations. (3) Every registration statement required to be filed by any organization shall contain the following information and documents: (a) The name and post-office address of the organization in the United States, and the names and addresses of all branches, chapters, and affiliates of such organization; (b) The name, address, and nationality of each officer, and of each person who performs the functions of an officer, of the organization, and of each branch, chapter, and affiliate of the organization; (c) The qualifications for membership in the organization; (d) The existing and proposed aims and purposes of the organization, and all the means by which these aims or purposes are being attained or are to be attained; (e) The address or addresses of meeting places of the organization, and of each branch, chapter, or affiliate of the organization, and the times of meetings; (f) The name and address of each person who has contributed any money, dues, property, or other thing of value to the organization or to any branch, chapter, or affiliate of the organization; (g) A detailed statement of the assets of the organization, and of each branch, chapter, and affiliate of the organization, the manner in which such assets were acquired, and a detailed statement of the liabilities and income of the organization and of each branch, chapter, and affiliate of the organization; (h) A detailed description of the activities of the organization, and of each chapter, branch, and affiliate of the organization; (i) A description of the uniforms, badges, insignia, or other means of identification prescribed by the organization, and worn or carried by its officers or members, or any of such officers or members; (j) A copy of each book, pamphlet, leaflet, or other publication or item of written, printed, or graphic matter issued or distributed directly or indirectly by the organization, or by any chapter, branch, or affiliate of the organization, or by any of the members of the organization under its authority or within its knowledge, together with the name of its author or authors and the name and address of the publisher; (k) A description of all firearms or other weapons owned by the organization, or by any chapter, branch, or affiliate of the organization, identified by the manufacturer's number thereon; (l) In case the organization is subject to foreign control, the manner in which it is so subject; (m) A copy of the charter, articles of association, constitution, bylaws, rules, regulations, agreements, resolutions, and all other instruments relating to the organization, powers, and purposes of the organization and to the powers of the officers of the organization and of each chapter, branch, and affiliate of the organization; and (n) Such other information and documents pertinent to the purposes of this section as the Attorney General may from time to time require. All statements filed under this section shall be public records and open to public examination and inspection at all reasonable hours under such rules and regulations as the Attorney General may prescribe. (C) The Attorney General is authorized at any time to make, amend, and rescind such rules and regulations as may be necessary to carry out this section, including rules and regulations governing the statements required to be filed. (D) Whoever violates any of the provisions of this section shall be fined under this title or imprisoned not more than five years, or both. Whoever in a statement filed pursuant to this section willfully makes any false statement or willfully omits to state any fact which is required to be stated, or which is necessary to make the statements made not misleading, shall be fined under this title or imprisoned not more than five years, or both.
California journal of mines and geology, Volume 11
Report of State Mineralogist, 1892, Page 46
The Lost Confidence Mine is situated on Iron Mountain , near the summit of the range, 8 miles north of Shasta, at an elevation of 2,400 feet. The ore deposits occur in a body of porphyry of varying composition. A mile west of the mine slate replaces the porphyry, and extends west to the Gladstone Mine. An arm of the porphyry projects a little west of south, across the head of Whisky Creek, forming a V-shaped area.
The porphyry in the gulches about Iron Mountain is undecomposed, exhibiting quarters with crystalline faces. A half mile above the mine the porphyry has a fluted or columnar cleavage, resembling the columnar structure often seen in basalt. The ore lies in a very fine quartz porphyry, which changes at times into a chloritic felsite or petrosilex. The chlorite is present in large scales, probably representing crushed crystals.
A heavy iron gossan outcrops in great projecting masses just above the workings of the Lost Confidence Mine, on Slick Rock Creek, and extends up the mountain, forming its crest fully 1,000 feet above. This important mineralized belt extends about 10 miles northeasterly, across Spring and Boulder Creeks to Squaw Creek. A number of valuable silver mines are located on it. The Lost Confidence Mining Company owns about a mile of the deposit, beginning at Slick Rock Creek. One of the most interesting and valuable properties owned by this company is a body of pure hematite ore, covering about 40 acres. No development has yet been made, but every advantage exists for a great industry here. The iron is apparently inexhaustible, very pure, and with an inclined tramway built the Sacramento River could be cheaply place on the cars. The iron is separated from the silver vein by a dike of porphyry 300 feet wide. There are two ledges or deposits carrying silver, separated by a stratum of decomposed quartz porphyry 1 to 3 feet wide, and dipping to the northwest. The foot wall or silver vein is 10 to 30 feet thick. It consists of copper sulphurets, 80 to 150 ft. thick. It is worked for both gold and silver, containing them in the proportion of 10 silver to 1 gold. A large amount of native copper is saved every month by allowing the water which runs from the mine to pass through a flume several hundred feet long filled with scrap iron.
California journal of mines and geology, Volume 12-13
Report of State Mineralogist, 1894, Page 337
Iron Mountain Mine. – It is 8 miles N.E. of Shasta, on Iron Mountain , and comprises 1 mile square of ground, including three claims. The course of the mineral body is N.E. and S.W. and it can be traced for over 2 miles. It is apparently the iron head or gossan cause by bevy mineral springs permeating the fissure and surrounding rocks. The mass has been cross-cut in places over 500 ft. without reaching its boundaries. As depth is reached, the ferruginous and cupriferous oxidized mass changes to massive sulphides, sometimes of a steely nature and hardness. Tunnels have been run in, on what is taken for one of the walls, a distance of 500 ft., and a series of parallel cross-cuts made every 50 ft.; some of these are several hundred feet in length, all within the ore belt. The works from the upper tunnel have been entirely honey-combed and the ore sent into the mill. Near the surface the ore carries iron, copper, silver, and gold, said to yield in the mill 40 oz. silver and $1 gold. As depth is attained the percentage of gold increases. The reduction works include a fine 20 stamp dry-crushing mill and Bruckner furnace, furnace, 12 amalgamating pans, and 6 settlers, with a capacity of 75 tons per day. Has lately changed owners.
Current human exposures at this site are under control
WATER RECLAMATION PLAN
Purpose.
The State policies described in Water Code Sections 461 and 13510 are in the best interest of Iron Mountain Mine and the Township of Minnesota . The majority of jurisdictions in Shasta County have adopted measures to promote water reclamation. This chapter is necessary to protect the common water supply of the region which is vital to public health and safety, and to prevent endangerment of public and private property. Shasta County is highly dependent on limited domestic water for domestic, agricultural and industrial uses. The reliability of the supply of domestic water is uncertain. By developing and utilizing reclaimed water, the need for exportable water can be eliminated. In light of these circumstances, certain uses of potable water may be considered unreasonable or to constitute a nuisance where reclaimed water is available or production of reclaimed water is unduly impaired. Reclaimed water would be more readily available in seasons of drought when the supply of potable water for nonessential uses may be uncertain.
Water reclamation policy.
It is the policy of the Iron Mountain Mine and the Township of Minnesota that reclaimed water shall be used within the jurisdiction wherever its use is economically justified, financially and technically feasible, and consistent with legal requirements, preservation of public health, safety and welfare, and the environment.
Definitions.
The following terms are defined for purposes of this chapter:
A. “Agricultural purposes” include the growing of field and nursery crops, raw crops, trees, and vines and the feeding of fowl and livestock.
B. “Artificial lake” means a human-made lake, pond, lagoon, or other body of water that is used wholly or partly for landscape, scenic or non-contact recreational purposes.
C. “Commercial office building” means any building for office or commercial uses with water requirements which include, but are not limited to, landscape irrigation, toilets, urinals, and decorative fountains.
D. “Reclaimed water distribution system” means a piping system intended for the delivery of reclaimed water separate from and in addition to, the potable water distribution system.
E. A “greenbelt area” includes, but is not limited to, golf courses , cemeteries, parks and landscaping.
F. “Industrial process water” means water used by any industrial facility with process water requirements which include, but are not limited to, rinsing, washing, cooling and circulation, or construction.
G. “Off-site facilities” means water facilities from the source of supply to the point of connection with the on-site facilities, normally up to and including the water meter.
H. “On-site facilities” means water facilities under the control of the owner, normally downstream from the water meter.
I. “Potable water” means water which conforms to the Federal, State and local standards for human consumption.
J. “Reclaimed water” means water which, as a result of treatment of wastewater, is suitable for a direct beneficial use or controlled use that would not otherwise occur (see Water Code Section 13050(n)).
K. “Water discharge” means water deposited, released, or discharged into a sewer system from any commercial, industrial, or residential source which contains levels of any substance or substance which may cause substantial harm to any water treatment or reclamation facility or which may prevent use of reclaimed water authorized by law.
Water reclamation master plan.
A. General. Upon adoption of this chapter, the Township shall prepare and adopt by resolution, a water reclamation master plan to define, encourage, and develop the use of reclaimed water within its boundaries. The master plan shall be updated not less often than every five years.
B. Contents of the Reclamation Master Plan. The master plan shall include, but not be limited to, the following:
1. Plants and Facilities. Evaluation of the location and size of present and future reclamation treatment plants, distribution pipelines, pump stations, reservoirs, and other related facilities, including cost estimates and potential financing methods;
2. Reclaimed Water Service Areas. A designation, based on the criteria set forth in this chapter, of the areas within the Township that can or may in the future use reclaimed water in lieu of potable water. Reclaimed water uses may include, but are not limited to, the irrigation of greenbelt and agricultural areas, filling of artificial lakes, and appropriate industrial and commercial uses;
3. Designate Tributary Areas. For each water reclamation facility identified in the master plan, designate proposed tributary areas. Within such areas, discharges to the sewage system shall be subject to permitting, monitoring and control measures to protect public health, safety and public and private property;
4. Quality of Water to be Reclaimed. For each water reclamation treatment facility, evaluate water quality with respect to the effect on anticipated uses of reclaimed water to be served by each treatment facility. Evaluate sources of waste discharge and sewer inflow that may, directly or cumulatively, substantially contribute to adverse water quality conditions (including but not limited to total dissolved solids , sodium, chloride and boron) in reclaimed water;
5. Tributary Protection Measures. Develop recommended control measures and management practices for each designated tributary area to maintain or improve the quality of reclaimed water. Such control measures may include capital improvements to the sewer collection system and waste discharge restrictions for industrial, commercial and residential discharges;
6. Mandatory Reclaimed Water Use. For each reclaimed water service area, evaluate whether greenbelt irrigation, agricultural irrigation, commercial office buildings, filling of artificial lakes, or industrial processes shall be limited to the use of reclaimed water. As appropriate, mandate construction of reclaimed water distribution systems or other facilities in new and existing developments for current or future reclaimed water use as a condition of any development approval or continued water service, if future reclamation facilities are proposed in the master plan that could adequately serve the development. Identify resources and adopt measures to assist water users in the financing of necessary conversions;
7. Rules and Regulations. Establish by resolution, general rules and regulations governing the use and distribution of reclaimed water;
8. Public Awareness Program. Establish a comprehensive water reclamation public awareness program;
9. Coordination Among Agencies. An examination of the potential for initiating a coordinated effort between the Township and other regional agencies to share in the production and utilization of reclaimed water.
Washington, D.C.-Sen. James Inhofe (R-Okla.), Ranking Member on the Senate Committee on Environment and Public Works, together with Senators David Vitter (R-LA), Mike Crapo (R-ID), John Boozman (R-AR), Thad Cochran (R-MS), and Jim Risch (R-ID), yesterday introduced The Small System Safe Drinking Water Act of 2011 (S. 999)-a bill that helps small water systems comply with Federal drinking water standards by requiring that the Environmental Protection Agency (EPA) utilize all the affordability provisions provided under the 1996 Safe Drinking Water Act amendments (SDWA), which are designed to help water systems in smaller communities come into compliance.
Details about The Small System Safe Drinking Water Act of 2011
Specifically, this bill requires EPA to update its affordability criteria, which it admitted in 2006 is unfair to small systems. Currently, EPA assumes that families can afford water rates of 2.5 percent of their annual median household income, or $1,000 per household. For some families, paying $83 a month for water may not be a hardship but for so many more, it is nearly impossible. This bill guarantees that there is some flexibility inserted into the calculation that determines the ability of the truly disadvantaged to pay these costs-it will make sure small systems get the help they need to meet these requirements.
It provides EPA with practical steps to take to help small systems cope with drinking water rules by reauthorizing the technical assistance program and identifying barriers to new technologies. The bill creates a pilot program to demonstrate new technologies and approaches for systems of all sizes to comply with these complicated rules.
Most importantly this bill requires the federal government to pay for these unfunded mandates created by laws and regulations: In 1995, Congress passed the Unfunded Mandates Reform Act to ensure that the Federal government pays the costs incurred by state and local governments in complying with Federal laws. The bill ensures that EPA cannot take an enforcement action against a system serving less than 10,000 people, without first ensuring that it has sufficient funds to meet the requirements of the regulation.
Almost thirty years after Congress instructed EPA to require facility owners and operators to set aside funds for the cleanup of property that may be contaminated by hazardous substances, a federal court in California has held EPA may take additional time to draft and issue the regulations. The court held that while Congress required EPA to issue such regulations, it granted EPA some discretion in when to do so.EPA has stated that it intends to require financial assurance for hardrock miningfacilitiesfirst, and will also assess the need to regulatehazardous waste generators, hazardous waste recyclers, metal finishers, wood treatment facilities, and chemical manufacturers.
The regulations at issue are required under the federal Superfund law, the Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA”),passed in 1980. The statute is commonly said to have been motivated by the notorious hazardous waste contamination discovered buried at Love Canal, NY. Section 108 of CERCLA requires EPA to issue financial assurance requirements for certain types of facilities, based on the risk of injury from hazardous substances in operations at those facilities. The regulations, once issued, would require the operator of a covered facility to set aside funds or otherwise make funds available for a possible future cleanup of hazardous substances at the property. Without such funds, costly cleanups may force potentially responsible parties into bankruptcy leavingtaxpayerswith the bill, or lengthylitigation may ensueover the allocation of costs. EPA was first required to publish a notice of those classes of facilities which presented the “highest level of risk of injury” by December 11, 1980.CERCLA §108(b)(1).
The December 1980 deadline passed, without EPA publishing the required notice. The statutory requirement languished, until in recent years it received renewed attention. EPA was sued in federal court in 2008, on the theory that EPA had failed to perform a non-discretionaryduty under CERCLA. The suit was brought under to CERCLA's citizen suit provision, which allows a private litigant to force non-discretionary agency action. In February 2009, the Northern District of California held in Sierra Club v. Johnson (N.D. Cal. No. C 08-01409) (“ Johnson “), that EPA had a mandatory duty to publish classes of facilities which presented the greatest risk of injury. In July, 2009, EPA published a notice these classes offacilities in the Federal Register, pursuant to the court's order. In its notice, the agencydeterminedthat it would promulgate the first financial assurance requirements for hardrock mining facilities, based on the extent of contamination from such facilities, and the high costs of cleanup.
EPA did not limit its inquiry to hardrock mining; the notice also stated that EPA will examine the need for financial assurance at the following types of facilities: “hazardous waste generators, hazardous waste recyclers, metal finishers, wood treatment facilities, and chemical manufacturers.” 74 Fed. Reg. 37,219. EPA states that it intends to publish a notice of this “second wave” of types offacilitiesby December, 2009. Id.
However, the Northern District of California held that EPA is under no date-certain deadline to issue the financial assurance requirements. Instead, the court held, “that although Section 108(b) requires EPA to promulgatefinancial responsibility regulations and incrementally impose such requirements, Section 108(b) provides EPA with discretion as to when to promulgate such regulations. Unlike the duty topublish notice of classes, Section 108(b) does not include a date-certain deadline for thepromulgation of financial responsibility regulations …” Johnson , Order , at 4-5 (Aug. 5, 2009). In so doing, the court rejected “a bright line rule that only duties withdate-certain deadlines are non-discretionary for the purpose of citizen suits under CERCLA,” and instead looked to legislative history to help determine whether EPA's duty to promulgate regulations by a particular date was non-discretionary. Id . at 5.
To maintain a claim that EPA has “unreasonably delayed” its duties under CERCLA, the court held that plaintiffs may continue to press their claims under another statute, the AdministrativeProcedureAct (APA), but must do so in another court. The court stated, “plaintiffs may bring an APA claim inthe Court of Appeals for the D.C. Circuit alleging EPA unreasonably delayed in promulgating thefinancial responsibility regulations required under Section 108(b).” Id . at 6. Unless and until such alitigationis brought and decided, the timeline for financial assurance requirements under CERCLA will remain unclear.
For Immediate Release: November 23, 2009
Contact: Kirsten Stade (202) 265-7337
EPA SHOWCASE COMMUNITY FUNDS NEVER REACH COMMUNITIES — Environmental Justice $ Limited to EPA Regional Offices in Bureaucratic Shuffle
Washington, DC — Two days after issuing a press release touting its “Environmental Justice Showcase Communities” initiative, the U.S. Environmental Protection Agency sent an internal “clarification” that funds are not meant for target communities, according to an e-mail released today by Public Employees for Environmental Responsibility (PEER). Instead, the money will be split among EPA regional offices.
The episode raises doubts about the substance behind vows by Obama appointees to meaningfully revive environmental justice policy launched under the Clinton administration to address inequitable pollution impacts and environmental burdens afflicting disadvantaged communities, racial and ethnic minorities.
In the November 17, 2009 EPA news release, “Administrator Lisa P. Jackson announced a national initiative to address environmental justice challenges in 10 communities”: Bridgeport (CT), Staten Island (NY), Washington, D.C., Jacksonville (FL), Milwaukee (WI), Port Arthur (TX), Kansas City (KS and MO), Salt Lake City (UT), Los Angeles (CA), and Yakima (WA). The release strongly implies that the $1 million in Showcase Community funds would actually go into the targeted communities, concluding with:
“Since 1994, EPA has provided more than $32 million in general funding to more than 1,100 community-based organizations.”
On November 19, 2009, Kent Benjamin, Associate Director of the EPA Office of Environmental Justice (OEJ), sent an e-mail to agency officials citing “misrepresentations in the media” and “confusion” that required “points of clarification,” including:
“The EJ Showcase Communities Project is NOT a GRANT program. It is a reprogramming of funds from OEJ Headquarters to the regional EJ program efforts.”
Merits of community selection are murky: “There is concern and curiosity about how the project locations were selected. I would encourage you to either include the description of your decision making process in your implementation plan or attach it to the previously completed plan” and
Planned accomplishments remain unclear: “OEJ and EJ Showcase Communities priorities team will provide feedback on proposed funds usage to encourage consistency among the range of possible uses.”
“Contrary to the official spin, not a dime of this environmental justice funding is guaranteed to reach a single Showcase Community,” stated PEER Executive Director Jeff Ruch, noting that EPA failed to issue a clarifying news release. “This program suggests that EPA still operates under the paternalistic attitude that it knows what is best for neighborhoods suffering from past failures of pollution control.”
In her seminal statement of the central role of environmental justice this July, Administrator Jackson said:
“In the years ahead, I want to see a full-scale revitalization of what we do and how we think about environmental justice. This is not an issue we can afford to relegate to the margins. It has to be part of our thinking in every decision we make….My friends, the EPA is once again guided by a broad vision of public health protection and environmental preservation. Environmental justice is central to that vision.”
“Despite the rhetoric, environmental justice remains on the periphery of EPA decision-making,” added Ruch. “Too much environmental justice activity at EPA thus far has been more process but no product – and certainly too little real support for communities bearing the brunt of environmental injustice.”
For Immediate Release: December 10, 2008
Contact: Kirsten Stade (202) 265-7337
EPA DESECRATING NATIVE ARTIFACTS ON SUPERFUND SITES — Widespread Noncompliance Wipes Out Invaluable Prehistoric and Cultural Heritage
Washington, DC — The U.S. Environmental Protection Agency is needlessly destroying irreplaceable artifacts at hundreds of toxic clean-up sites across the country, according to a complaint filed today by Public Employees for Environmental Responsibility (PEER) with the EPA Office of Inspector General. The complaint details how EPA and its contractors routinely shrug off required site surveys before they begin to blast or excavate, destroying significant historic and prehistoric cultural resources in the process.
The PEER complaint focuses on one recent Superfund clean-up of an old mine on the Elem Indian Colony reservation in northern California's Lake County. In that 2006 operation, EPA –
Began work without any site survey to determine whether it had historic or cultural significance;
Ignored a complaint from tribal officials; and
Destroyed more than $50 million in archaeological treasures
“These are not emergency operations that preclude consultation and study before opening up a trench,” stated PEER Counsel Adam Draper, who filed the complaint. “There is no reason why EPA, of all agencies, cannot obey basic resource protection laws.”
In addition to the Elem site, the PEER complaint points to similar violations ranging from Oklahoma to the island of Saipan. In some instances, EPA has disturbed human remains as well as historic and prehistoric resources.
“We believe that what EPA did in California is not an isolated incident but is part of a pattern that is taking place in hundreds of locations across the country,” Draper added. “EPA digs first and does not even bother to ask questions later.”
PEER is asking the Inspector General to –
Review what happened on the Elem Indian Colony, identify the responsible agency officials and determine whether compensation should be paid;
Survey other EPA Superfund operations to develop an authoritative estimate as to how widespread agency noncompliance is with historic preservation laws and its own Superfund regulations; and
Recommend steps that would minimize EPA violations.
“We want the Inspector General to find out why the Environmental Protection Agency is not also protecting our cultural and historic heritage,” Draper concluded.
For Immediate Release: August 20, 2008
Contact: Kirsten Stade (202) 265-7337
EPA ELBOWS CORPS ASIDE TO PROTECT WESTERN RIVERS — L.A. and Santa Cruz Rivers Will Benefit from Clean Water Act Safeguards
Washington, DC — In a move to protect Western rivers, the U.S. Environmental Protection Agency has taken jurisdiction away from the U.S. Army Corps of Engineers to determine whether two rivers are covered by the Clean Water Act, according to documents released today by Public Employees for Environmental Responsibility (PEER). The action by EPA effectively trumps recent steps by the Corps to severely diminish Clean Water Act federal safeguards in the Los Angeles and Santa Cruz river systems.
In an unusual letter sent this past Sunday, August 17, EPA Assistant Administrator Benjamin Grumbles informed his counterpart overseeing the Corps, Assistant Army Secretary John Woodley, that –
“I am designating the Los Angeles and Santa Cruz Rivers as Special Cases…and therefore EPA Headquarters will make the final determination of their jurisdictional status under the CWA [Clean Water Act].”
At the urging of the National Association of Homebuilders, the Corps had in recent weeks sent signals that it would radically narrow its standard for whether rivers that flow intermittently should be protected:
In June 2008, the Corps declared only a small portion of the L.A. River to be a Traditional Navigable Waterbody (TNW), thus signaling that the bulk of the river and all its tributaries might not be covered by the Clean Water Act; and
In July 2008, the Corps suspended its previous decision to designate parts of the Santa Cruz River in Arizona as a TNW. Under the standards proposed to the Corps, fully 96% of all of the surface waters in the state of Arizona would very likely lose Clean Water Act protections that have been in place for the past thirty years.
“It is refreshing to see EPA show some spine on a politically charged pollution issue,” stated PEER Executive Director Jeff Ruch, noting that Clean Water Act prevents the rivers from being eliminated through fill and prohibits dumping of sewage and toxic materials as will as run-off from construction sites and streets. “The reverberations from this action extend beyond these two rivers.”
The EPA action removes the Corps from making the determination as to what waters in these river systems will retain their long standing Clean Water Act protections. EPA now will be the agency that defines which waters keep and loose CWA protections. Until EPA makes their final determination there is no guarantee how much of these two watersheds will retain CWA protections, but it is highly unlikely that EPA would have intervened if it agreed with the Corps.
Navigability is one of the thorny issues created by a 2006 U.S. Supreme Court decision (U.S. v Rapanos) that the Bush administration is using to cut back protections for wetlands and other vital waters. Congress is currently debating legislative remedies to return Clean Water Act protections to what had been historical protected under the Act. In an August 7 letter, two of the leading reform sponsors, Rep. Henry Waxman (D-CA) and James Oberstar (D-MN) demanded the Corps explain their threatened rollbacks, writing that the agency had seemingly acted in an “ad hoc manner, seemingly subject to complete reversal of suspension without any clear and objective standards” that may be “in contravention with the law” and which “undermines federal and state efforts to ‘restore and maintain the chemical, physical, and biological integrity of the Nation's waters.'”
“Cleaning up the Clean Water Act is high on the agenda for Congress,” Ruch added.
For Immediate Release: August 14, 2008
Contact: Kirsten Stade (202) 265-7337
STRING OF EPA LEGAL LOSSES ON EVERGLADES NO FLUKE — Latest Stinging Court Ruling Cites EPA Regional Office Clean Water Abdication
Washington, DC — A long series of federal court rulings that the U.S. Environmental Protection Agency (EPA) has been derelict in protecting the water quality of the Everglades is prompting calls for a probe of the agency's regional operations. The most recent federal court decision takes EPA to task for repeatedly violating the very Clean Water Act that it is supposed to administer.
On July 29, 2008, Miami U.S. District Judge Alan Gold excoriated EPA, finding that the agency had shirked its duty to enforce basic water quality standards and, in so doing, “violated its fundamental commitment and promise to protect the Everglades” and “acted arbitrarily and capriciously.” This is only the latest in a long series of cases stretching back more than a decade that have all gone against EPA.
Two organizations, Public Employees for Environmental Responsibility (PEER) based in Washington, D.C. and the Council of Civic Associations, based in Lee County, Florida, are today asking EPA's Office of Inspector General to find out why the agency has been so derelict in its duties on both the Everglades and water quality issues throughout Florida.
“Federal judges appointed by both Republican and Democratic administrations have repeatedly found EPA guilty under the highest standard in civil jurisprudence which cannot be explained away as mistakes or misunderstandings,” stated PEER Executive Director Jeff Ruch. “We want to know specifically who at EPA is responsible and why they are still on the public payroll.”
EPA finances and is supposed to oversee the State of Florida's clean water program, but EPA has almost uniformly deferred to the state even when the state's actions have been clearly wrong. Meanwhile, restoration of the Everglades, the largest public works project on the nation's docket, revolves around restoring water quality, but official missteps have the mega-project mired in delays and uncertainty.
The upshot of EPA maladministration is that Florida waters, especially in the southern portion of the state, are in perilously poor shape. Algal blooms, fish kills, saltwater intrusion and drinking water emergencies are becoming ever more common. Changes in weather patterns that affect water supply only magnify the importance of keeping the remaining supplies unpolluted.
“Unfortunately, it is common knowledge in South Florida that EPA regional managers will do everything possible to accommodate the state and the only way to get them to enforce the Clean Water Act is to sue them – which is a very sad commentary,” commented Ann Hauck of the CCA. “The bottom line is that the Everglades continues to deteriorate. According to EPA Region 4's own recently released Everglades Assessment Report, the area of the Everglades negatively impacted by discharges from the Everglades Agricultural Area has increased under the current Region 4 management.”
A review by the EPA Inspector General would help inform the next administration about what changes are needed in the EPA Southeastern Regional Office (region 4), based in Atlanta, which is responsible for Florida.
For Immediate Release: March 3, 2008
Contact: Kirsten Stade (202) 265-7337
GROWING NO CONFIDENCE CHORUS CONFRONTS EPA HEAD — Scientist Unions Pledge to Secede from Cooperative Forum, Citing Rising Distrust
Washington, DC — In a stinging rebuke, unions representing the vast majority of U.S. Environmental Protection Agency scientists, attorneys and other specialists have vowed to cut off future discussions with embattled Administrator Stephen Johnson, according to a letter released today by Public Employees for Environmental Responsibility (PEER). Already in the hot seat for overruling staff advice that he was legally required to grant California's requested waiver to regulate greenhouse gases, Johnson now faces a litany of charges that he has also been duplicitous on an array of other scientific integrity, information suppression and workplace relations issues.
In a February 29, 2008 letter, the presidents of 19 locals from four unions representing more than 10,000 staff from EPA headquarters, all but one of its regional offices and seven lab complexes served notice that they will “suspend” further involvement with the National Labor-Management Partnership Council. The Partnership Council is a nearly ten-year old forum for resolving disagreements.
The joint leap-day letter cites repeated instances of broken pledges or bad faith by Johnson, including –
Refusing to enforce the agency's “Principles of Scientific Integrity” involving “fluoride drinking water standards, organophosphate pesticide registration, control of mercury emissions from power plants, and “the California waiver decision where the unions contend Johnson has allowed outside influences to preclude “good science in [EPA] decision making”;
Using in-house legal staff to retaliate against whistleblowers and union officers; and
Ignoring requests to fix problems in EPA's performance appraisal system, which according to the unions, has deteriorated into “jargon and subjective measures” such that it is “all but impossible for employees to know when they are performing at an outstanding level.”
“Whatever reservoir of good will and credibility that Stephen Johnson had as a career employee is fast evaporating,” stated PEER Executive Director Jeff Ruch, noting that the Bush administration often has defended questionable environmental decisions by pointing to Johnson's status as “a career scientist.” “On a host of critical issues, the nation is looking for EPA to lead, but Johnson cannot be an effective leader from inside a bunker.”
The EPA Labor Union Coalition, consisting of four major unions (the American Federation of Government Employees, the Engineers and Scientists of California, the National Association of Government Employees and the National Treasury Employees Union), is particularly incensed by EPA's refusal to discuss, let alone negotiate, its closure of agency libraries. Last month, the Federal Labor Relations Board sanctioned EPA and ordered it to bargain any further changes with affected unions.
“With each committee appearance more contentious and embarrassing than the last, it is hard to see how Johnson can break this downward spiral except by resigning,” added Ruch, pointing to Johnson's recent claims that he cannot recall clear and overwhelming staff advice for granting California's waiver requests, as evidenced by memos and PowerPoint presentations being unearthed by committee investigators. “It is a very bad sign that Johnson has been reduced to the Alberto Gonzales defense.”
For Immediate Release: March 21, 2007
Contact: Kirsten Stade (202) 265-7337
EPA TO DEFANG ITS INSPECTOR GENERAL — Immediate Buy-Outs to Remove Auditors, Criminal Investigators and Chemists
Washington, DC — Without waiting for congressional approval, the U.S. Environmental Protection Agency is moving this month to significantly downsize its Office of Inspector General (IG), according to agency memos released today by Public Employees for Environmental Responsibility (PEER). The cutbacks will reduce the ability of the IG to audit Environmental Protection Agency (EPA) contracting, investigate EPA enforcement actions and review allegations of political manipulation of agency science.
Under the continuing resolution passed by Congress last month to fund EPA and most other non-defense agencies through the current fiscal year (FY07) which began this past October, the EPA-IG actually received a slight ($900,000) increase. In his proposed budget for FY08, however, President Bush would cut the IG budget by $5.1 million — the equivalent of a 10% budget reduction.
EPA managers are rushing to implement these proposed cuts now. It is unstated how displaced IG staff will be replaced if Congress later nixes the President's proposed reduction. The reductions include –
Early retirements though buy-outs of senior auditor, criminal investigator, chemist and administrative positions;
Possible lay-offs (Reductions-In-Force) and closures of branch offices; and
A hiring freeze that precludes replacement of specialists who retire or resign.
“If ever an agency needed a strong Office of Inspector General, it is the EPA in 2007,” stated PEER Executive Director Jeff Ruch, noting the recent string of agency scandals ranging from the World Trade Center warnings to the horrific asbestos tragedies in Libby, Montana. “The tremendous impact that EPA decisions have on peoples' lives deserves independent scrutiny from auditors and other investigators who can shred agency technical double-talk and get to the bottom of problems.”
Under the previous EPA Inspector General, Nikki Tinsley, the IG gained a reputation for some independence, issuing a series of blistering reports about controversial EPA actions. Since her departure early last year, there has been no permanent replacement. The current Bush nominee, Alex Beehler, a Defense Department official linked to attempts to exempt Pentagon operations from environmental laws, was blocked in the last session of Congress. Beehler has been re-nominated in the current session, but his prospects for confirmation remain cloudy.
The cutbacks are being carried out by Acting IG Bill Roderick under orders from EPA Administrator Stephen Johnson.
“It is not surprising that the last thing the Bush administration values is aggressive investigation into corporate pollution offenses and the political collusion that lubricates them,” added Ruch, pointing that the cuts are taking place now, months before Congress is scheduled to finish work on the FY08 budget. “Congress should be consulted before irreversible steps are taken.”
In the face of congressional protests, during the past few weeks, EPA has set aside plans to cut its network of scientific laboratories and put further closures of its technical libraries on hold.
For Immediate Release: September 4, 2006
Contact: Kirsten Stade (202) 265-7337
BUSH DECLARES ECO-WHISTLEBLOWER LAW VOID FOR EPA EMPLOYEES — Stealth Repeal of Clean Water Act Protections by Invoking “Sovereign Immunity”
Washington, DC — The Bush administration has declared itself immune from whistleblower protections for federal workers under the Clean Water Act, according to legal documents released today by Public Employees for Environmental Responsibility (PEER). As a result of an opinion issued by a unit within the Office of the Attorney General, federal workers will have little protection from official retaliation for reporting water pollution enforcement breakdowns, manipulations of science or cleanup failures.
Citing an “unpublished opinion of the [Attorney General's] Office of Legal Counsel,” the Secretary of Labor's Administrative Review Board has ruled federal employees may no longer pursue whistleblower claims under the Clean Water Act. The opinion invoked the ancient doctrine of sovereign immunity which is based on the old English legal maxim that “The King Can Do No Wrong.” It is an absolute defense to any legal action unless the “sovereign” consents to be sued.
The opinion and the ruling reverse nearly two decades of precedent. Approximately 170,000 federal employees working within environmental agencies are affected by the loss of whistleblower rights.
“The Bush administration is engineering the stealth repeal of whistleblower protections,” stated PEER General Counsel Richard Condit, who had won several of the earlier cases applying environmental whistleblower protections to federal specialists. “The use of an unpublished opinion to change official interpretations is a giant step backward to the days of the secret Star Chamber.” PEER ultimately obtained a copy of the opinion under the Freedom of Information Act.
At the same time, the U.S. Environmental Protection Agency (EPA) is taking a more extreme position that absolutely no environmental laws protect its employees from reprisal. EPA's stance would place the provisions of all major federal environmental laws, such as the Clean Air Act and the Safe Drinking Water Act, beyond the reach of federal employees seeking legal protection for good faith efforts to enforce or implement the anti-pollution provisions contained within those laws.
These actions arose in the case of Sharyn Erickson, an EPA employee who had reported problems with agency contracts for toxic clean-ups. After conducting a hearing, an administrative law judge called EPA's conduct “reprehensible” and awarded Erickson $225,000 in punitive damages but the Labor Secretary overturned that ruling.
“It is astonishing for the Bush administration to now suddenly claim that it is above the law,” said PEER Senior Counsel Paula Dinerstein, who is handling Erickson's appeal of the Labor Secretary's ruling to the U.S. Court of Appeals for the 11th Circuit based in Atlanta. “Congress could end this debate by simply declaring that it intends that the whistleblower protections of these anti-pollution laws apply to the federal government.”
Congress is now debating Clean Water Act clarifications in the wake of a confusing U.S. Supreme Court decision (Rapanos et ux., et al. v. United States) handed down this June that muddies the extent of federal jurisdiction over wetlands. Unless Congress also resolves the Clean Water Act sovereign immunity question, scores of federal employee whistleblower cases may be dismissed or languish in limbo while the issue is litigated.
SUPREME COURT PLURALITY DECISION (JUSTICE SCALIA) ON FEDERAL CLEAN WATER ACT JURISIDICTION
The jurisdictional standard is determined by the terms of the act. In SWANCC, the Supreme Court determined that the act was clear and should be read as written to avoid the constitutional questions raised by a broad interpretation of the act. As written -- If we look at 1251(a), Congress declares that its purpose is to protect the integrity of the Nation's waters. It used that term, Nation's waters. And then in -- in 1251(a)(1), it says it will accomplish this by eliminating the discharge of pollutants into the navigable waters, showing that it knows how to distinguish between all waters and navigable waters. And then in 1251(b), Congress says we will respect and defer to the States' primary responsibility to address local water pollution and to manage local land and water use. So the way that Congress intended to address this issue was to defer to the States to regulate pollutants upstream while Congress -- or while the Federal Government regulates downstream. That's a perfectly rational approach to this national problem. Congress determined that it would defer to the States instead of exercising any further power beyond its channels authority.
"Regulations as the Congress shall make." This power of Congress has rarely been exercised, except to refine the procedures for obtaining Court review of lower court decisions; over the years the trend has been for Congress to allow the Court maximum discretion in deciding whether to accept or reject a case. Of course, the very concept of Congress "allowing" the Court such discretion only reinforces that phrase in Section 2: ". . . supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make." The Court is still beholden to Congress as to what cases it may hear, and under what set of regulations that elected body of representatives drafts and approves. 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 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. Nor does this conclusion by any means suppose a superiority of the judicial to the legislative power . It only supposes that the power of the people is superior to both; and that where the will of the legislature, declared in its statutes, stands in opposition to that of the people, declared in the Constitution, the judges ought to be governed by the latter rather than the former. They ought to regulate their decisions by the fundamental laws, rather than by those which are not fundamental. It can be of no weight to say that the courts, on the pretense of a repugnancy, may substitute their own pleasure to the constitutional intentions of the legislature . This might as well happen in the case of two contradictory statutes; or it might as well happen in every adjudication upon any single statute. The courts must declare the sense of the law; and if they should be disposed to exercise WILL instead of JUDGMENT, the consequence would equally be the substitution of their pleasure to that of the legislative body . The observation, if it prove any thing, would prove that there ought to be no judges distinct from that body.
Endangered Species and Map Revisions
New Procedures help ensure Protection of Species and Habitat
Effective October 1, 2010, FEMA began requiring that all applications for CLOMRs and
CLOMR-Fs (Conditional Letters of Map Revision and Conditional Letters of Map Revision
based on Fill) include documentation that the provisions of the Endangered Species Act have
been observed for the parcel of land in question. A guidance memo issued by FEMA in
August (Procedure Memorandum No. 64, dated August 18, 2010, available at
http://www.fema.gov/plan/prevent/fhm/gs_memos.shtm) provides details about the new rules for
processing CLOMRs and CLOMR-Fs.
When requested, FEMA can issue a CLOMR or CLOMR-F as the agency's comments on
whether a proposed action in a floodplain (such as construction or landscape disturbance)
would meet the minimum National Flood
Insurance Program (NFIP) requirements and
also on how the proposed change would affect
the NFIP maps. Including documentation of
the ESA compliance within the CLOMR
procedure ensures that FEMA is meeting its
responsibility under the ESA. It also provides
a “double check” for communities—to be sure
that they have in fact checked for endangered
species or habitat on the site of the proposed
action. Local flood damage reduction
ordinances passed to meet the NFIP standards
at 44 CFR 60.3(a)2 already require that all
necessary authorizations have been received
before a floodplain development permit can be
issued, and this includes having cleared the
ESA review [see box].
In the next CRS Coordinator's Manual, more
attention is likely to be given to natural
floodplain functions and resources, including
habitat for threatened and endangered species.
Therefore, even if your community doesn't
anticipate requesting any CLOMRs soon, it
would be still be a good idea to get in touch
with the appropriate Fish & Wildlife Service
or Marine Fisheries Service office to see what
species, if any, inhabit your locale. FEMA's
guidance memo gives links to several
resources on the ESA, including websites of
both Services.
What does the ESA Mean?
The purpose of the Endangered Species Act is
to conserve threatened and endangered plants and
animals and the ecosystems upon which they
depend. Congress passed the ESA in 1973 with
recognition that the natural heritage of the United
States was of “esthetic, ecological, educational,
recreational, and scientific value to our Nation and
its people.” Congress understood that, without
protection, many of our nation's living resources
would become extinct. Species at risk of extinction
are considered “endangered,” whereas species
that are likely to become endangered in the
foreseeable future are considered “threatened.”
Today, about 1,900 species are listed as
threatened or endangered under the ESA. The
U.S. Fish and Wildlife Service and the National
Marine Fisheries Service share responsibility for
implementing the ESA.
Section 9 of the ESA prohibits anyone from
“taking” or “harming” endangered wildlife, and
similar protection is extended to threatened wildlife.
That means that the Act applies to ALL individuals,
groups, businesses, property owners, and others.
If an intended action might harm a threatened or
endangered species, authorization must be
obtained from one of the Services.
Further, Section 7 of the ESA requires that
each federal agency insure that any action it
authorizes, funds, or carries out is not likely to
jeopardize the continued existence of any listed
species or destroy or adversely modify critical
habitat.
See http://www.epa.gov/lawsregs/laws/esa.html.
Making the Program Faster, Fairer, and More Efficient (Continued)
Engineering Education and Centers
Engineering Research Centers (ERC): Partnerships in Transformational Research, Education and Technology - A Focused Call for Nanosystems ERCs (NERCs)
Available Formats: HTML | PDF | TXT
Document Type: Program Announcements & Information View Program Page
Document Number: nsf11537
Document History: Posted: April 8, 2011. Replaces: nsf09545 .
For information on all aspects of the ERC construct, strategic planning and the solicitation in general, contact Lynn Preston ( lpreston@nsf.gov or 703-292-5358), Deborah Jackson ( djackson@nsf.gov or 703-292-7499), Daniel De Kee ( ddekee@nsf.gov or 703-292-8769), or Barbara Kenny ( bkenny@nsf.gov or 703-292-4667).
For pre-college education, Research Experiences for Teachers (RETs), contact Mary Poats ( mpoats@nsf.gov or 703-292-5357) and for Research Experiences for Undergraduates (REUs) contact Esther Bolding ( ebolding@nsf.gov or 703-292-5342).
LOIs and full proposals must be submitted by 5:00 p.m. proposer's local time on the relevant deadline or the proposal will be returned without review.
SYNOPSIS
The National Nanotechnology Initiative (NNI), a federal interagency research and development venture, was launched in FY 2001. Over the last decade, there has been considerable investment in fundamental research - from nanostructured materials to devices and manufacturing processes - that has revealed new phenomena and resulted in a plethora of important advances. At NSF the funding vehicles included individual grants (unsolicited and Nanoscale Exploratory Research - NERs), small teams (Nanoscale Interdisciplinary Research Teams - NIRTs), user networks such as National Nanotechnology Infrastructure Network (NNIN) and the Network for Computational Nanotechnology (NCN), and centers (Nanoscale Science and Engineering Centers - NSECs). In addition, there were other NSF programs that supported research and education activities in nanotechnology. More information can be found at http://www.nsf.gov/nano/ .
At this time, some discoveries are at the phase to explore their integration into nanosystems, thus leading to adoption in applications critical for their commercial use. To enable this integration, the Engineering Research Centers (ERC) program is launching this new competition targeting the Transformational Nanotechnology of Engineered Systems Centers or NanoSystems ERCs (NERCs). These new centers will adopt and follow all the features of Generation-3 (Gen-3) ERCs.
The goal of the Generation Three (Gen-3) Engineering Research Centers (ERC) Program is to create a culture in engineering research and education that links discovery to technological innovation through transformational fundamental and engineered systems research in order to advance technology and produce engineering graduates who will be creative U.S. innovators in a globally competitive economy. These ERCs will be at the forefront as the U.S. competes in the 21st century global economy where R&D resources and engineering talent are internationally distributed. Recognizing that optimizing efficiency and product quality are no longer sufficient for U.S. industry to remain competitive, these ERCs will optimize academic engineering research and education to stimulate increased U.S. innovation in a global context. They will develop this culture that joins discovery and innovation, i.e., an innovation ecosystem. An innovation ecosystem includes the people, institutions, policies, and resources that promote the translation of new ideas into products and processes and services. The innovation ecosystem of Gen-3 ERCs is achieved through a symbiotic relationship between the ERC's researchers, small businesses, larger industrial and practitioner partners, and partner organizations devoted to stimulating entrepreneurship and innovation. In essence this solicitation requires that the efforts be devoted to creating, developing, and enhancing capacities in ERCs from transformational fundamental research to technology commercialization and creating a continuous pipeline in engineering education from middle school to graduate studies.
In order to achieve this, Gen-3 ERCs will:
Advance discovery and build bridges from science-based discovery to technological innovation to realize transformational engineered systems;
Develop a culture in academe that joins research, education, and innovation to create and sustain an innovation ecosystem to enable the ERC's vision;
Provide international opportunities for research and education collaboration that will prepare U.S. engineering graduates for leadership in innovation in a global economy;
Form teams of diverse and talented faculty who will prepare diverse and talented domestic and international graduates to function effectively in a global world where research, design and production efforts cross national borders;
Function with transformational engineering education programs that rest on partnerships with pre-college institutions to attract students to engineering and university departments to strategically impart in engineering graduates the capacity to create and exploit knowledge for technological innovation; and
Build and sustain a culture that links discovery to innovation, the ERC innovation ecosystem, which will include partnerships with members firms/practitioners to strengthen the ERC and streamline technology transfer; translational research partnerships with small firms to accelerate commercialization of high risk ERC advancements; and innovation partnerships with local level organizations to stimulate entrepreneurship and job creation and enable technological innovation.
Some of the documents on this page were created as PDFs
Click here for PDF assistance For more information, please call (202) 395-3993
Mission:
To promote and support first class financial management in the executive branch of the Federal Government.
History:
The Office of Federal Financial Management (OFFM) was created within the Office of Management and Budget (OMB) by the Chief Financial Officers (CFO) Act of 1990 . OFFM, led by the OMB Controller under the direction of the Deputy Director for Management, is responsible for the financial management policy of the Federal Government. OFFM responsibilities include implementing the financial management improvement priorities of the President, establishing government-wide financial management policies of executive agencies, and carrying out the financial management functions of the CFO Act.
Authorized by Title III of the Superfund Amendments and Reauthorization Act (SARA), the Emergency Planning & Community Right-to-Know Act (EPCRA) was enacted by Congress as the national legislation on community safety. This law is designed to help local communities protect public health, safety, and the environment from chemical hazards.
To implement EPCRA, Congress requires each state to appoint a State Emergency Response Commission (SERC). The SERCs are required to divide their states into Emergency Planning Districts and to name a Local Emergency Planning Committee (LEPC) for each district.
Broad representation by fire fighters, health officials, government and media representatives, community groups, industrial facilities, and emergency managers ensures that all necessary elements of the planning process are represented.
Several federal environmental laws authorize EPA to treat eligible federally-recognized Indian tribe in the same manner as a state for implementing and managing certain environmental programs.
Below is a list of the environmental statutes with tribal eligibility for regulatory program authorizations:
BLUEFIELD — During a meeting with the Bluefield Daily Telegraph editorial board on Thursday, Acting Governor Earl Ray Tomblin said he was “not pleased with the EPA,” and noted that his predecessor, now U.S. Senator Joe Manchin III, D-W.Va., filed a suit against the Environmental Protection Agency claiming that the agency “overstepped its bounds,” Tomblin said.
Earlier in the day on Thursday in Washington, D.C., the House Subcommittee on Water Resources and Environment convened the first of a two-part hearing on the EPA's “regulatory guidance on surface mining” as well as the economic impact of the “increasingly heavy-handed regulatory approach in the Appalachian region,” according to a press release from the House Transportation and Infrastructure Committee.
“Recently, EPA revoked a Section 404 ‘dredge and fill' permit for the Spruce No. 1 Mine in Logan, three years after the permit was issued by the Army Corps of Engineers — in full agreement with EPA,” according to the House committee's press release. “This action has raised serious questions about the extent of EPA's authority, considering that the project was well underway when the permit was revoked.”
According to the press release, the EPA's “unchecked actions will threaten one of every four coal mining jobs in the Appalachian region.” The committee's stated purpose in calling for the hearings is “to receive testimony from state regulators, the mining industry, impacted businesses, economists and EPA on surface mining guidance and the issues surrounding it.” Speakers in the first hearing included Michael Gardner, general counsel of Oxford Resources, Dr. Leonard Peters, secretary of the Kentucky Energy and Environment Cabinet, Teresa Marks, director Arkansas Department of Environmental Quality and Hal Quinn, president, National Mining Association.
“The deliberate and disruptive policies that have slowed and stopped coal mines from receiving permits to open or expand have consequences that reverberate throughout the region,” Quinn was quoted as stating in a NMA press release. “The consequences begin with the coal supply chain and spread to those that benefit from low-cost coal energy.”
According to Quinn's statement, in just two months, the backlog of permits had grown to 235 applications with a full 190 of them already having been considered complete by the Corps of Engineers. The NMA claimed that the EPA's policies prompted the Energy Information Administration to drop productivity projections in Central Appalachian surface mines by as much as 20 percent.
“This represents a substantial regulatory penalty that will erode companies' competitiveness and threaten more coal jobs,” according to Quinn's quote in the NMA press release. He added that coal miners deserve an answer to the question as to “why their own government at times seems to put so much effort into working against them rather than supporting them and what they do for the country.”
U.S. Rep. Nick Rahall, D-W.Va., the ranking Democrat on the committee was quoted in a press release as stating that coal miners are constantly concerned about their jobs. “The people of southern West Virginia love the natural beauty of our land,” Rahall was quoted as stating. “We want clean water and air. But we want jobs too. We do not condone coal companies failing to ensure the safety of their miners and the well-being of the communities in which they operate. That is simply wrong,” Rahall said.
“But it is also wrong for a federal agency to circumvent the law and treat guidance as binding policy, particularly when that policy targets only one industry in only one region of the country,” Rahall was quoted as stating.
Lisa Jackson, administrator of the EPA, Dr. David Sunding, University of California-Berkeley, Reed Hopper, Pacific Legal Foundation, Michael Carey, president of the Ohio Coal Association and Steve Roberts, president of the West Virginia Chamber of Commerce are scheduled to appear at the committee's next hearing on May 11.
Senate Republicans have introduced legislation to abolish the Environmental Protection Agency, established 40 years ago by President Richard Nixon to give Americans clean air and water. The bill, introduced by Sen. Richard Burr (R-NC), would merge the EPA, which enforces environmental laws, with the Department of Energy, which manages nuclear energy and energy research, into one department.
Burr's statement announcing his bill to eliminate the EPA argues that “duplicative functions” can be eliminated, even though the two departments are completely different:
U.S. Senator Richard Burr (R-North Carolina) introduced a bill that would consolidate the Department of Energy and the Environmental Protection Agency into a single, new agency called the Department of Energy and Environment (DOEE). The bill would provide cost savings by combining duplicative functions while improving the administration of energy and environmental policies by ensuring a coordinated approach.
In January, former Republican House Speaker Newt Gingrich proposed abolishing the EPA, and several House Republicans have supported that goal, while making numerous attempts to hamstring limits on industrial polluters.
Burr's bill has fifteen co-sponsors, all of them global warming deniers : Jim DeMint (R-SC), Mike Enzi (R-WY), John Thune (R-SD), John McCain (R-AZ), Dan Coats (R-IN), Richard Shelby (R-AL), John Barrasso (R-WY), Roy Blunt (R-MO), John Boozman (R-AR), Thad Cochran (R-MS), Kay Bailey Hutchison (R-TX), David Vitter (R-LA), Orrin Hatch (R-UT), Ron Johnson (R-WI), Mike Lee (R-UT).
How to Receive Your Grant Funds
Once a grant or cooperative agreement has been signed by an EPA award official and affirmed by the recipient organization, recipients are able to request funds.
There are two approved methods by which the recipient may receive funds: Electronic Fund Transfer (EFT) and Automated Standard Application for Payments (ASAP).
Instructions for Automated Standard Application for Payments (ASAP):
US Treasury Automated Standard Application for Payments (ASAP) - The ASAP system is the preferred method of payment for EPA grantees. ASAP enrollment is highly encouraged for organizations that have multiple grants/cooperative agreements and for those with a frequent need to request funds. If your organization uses multiple bank accounts for EPA grants/cooperative agreements, you must enroll in ASAP. If you are interested in requesting and receiving funds paperless and electronically via ASAP, please complete the ASAP Initiate Enrollment form and fax it to LVFC at 702-798-2423.
Federal Agencies and organizations receiving federal funds enroll one time to use ASAP. Federal Agencies establish and maintain accounts in ASAP to control the flow of funds to organizations. Federal Agencies enter spending authorizations into their ASAP accounts in accordance with their program needs and schedules. Payment Requestors at organizations initiate payment requests through ASAP to meet cash needs. This is done primarily through on-line connections that organizations have with ASAP. In a case where a financial institution is acting as an agent of the organization, a request for funds can be made via the Federal Reserve's FEDWIRE system. Approved requests for next day or future day (up to 32 calendar days from the date of the payment request) payments are paid via the Automated Clearing House (ACH) system or by FEDWIRE if same day payment is required.
The LVFC enters spending authorizations into the recipient's ASAP accounts in accordance with their program needs and schedules. The recipient can initiate payment requests through ASAP to meet immediate cash needs. The payment process is designed to provide federal funds to a recipient organization within 48 hours for ASAP recipients. Please refer to www.asap.gov for additional information.
Instructions for Electronic Fund Transfer (EFT):
As of October 2010, unless exempt under 2 CFR 25.110, all new grant/cooperative agreement recipients must register in the Central Contractor Registry (CCR). Your organization is also required to maintain and update the information at least annually after the initial registration, and more frequently if required by changes in your information or another award term.
Should you elect to have payments processed via EFT, LVFC has already obtained your organization's banking information in conjunction with your CCR registration. NOTE: If your banking information is not correct or changes at any time prior to the end of your agreement, please update your CCR registration and notify LVFC as soon as possible so the new banking information can be retrieved. This is vital to ensure proper and timely deposit of funds.
Must complete the EPA payment request form EPA form 190-F-04-001 (PDF) (1 pp, 28K, about PDF ) and fax the document to LVFC at (702)-798-2423. Unique EPA programs, or those recipients permitted by LVFC (by exception only), may use SF270 or SF271 to request payment.
The LVFC will review each request. When the request is approved for payment, EPA will electronically transfer the funds through the U.S. Department of Treasury and the Federal Reserve for credit to the recipient's account at their designated financial institution within 3 to 5 business days following receipt and approval of the request. If the entire request or a portion of the request is rejected, the recipient will be notified by the LVFC no later than 1 workday following receipt of the request.
Creating, implementing and tracking new reuse performance measures, such as the Sitewide Ready for Anticipated Use Government Performance and Results Act measure, that measure the Agency's progress in making sites ready for their anticipated future use.
DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT
[Docket No. FR-5500-N-01]
Notice of HUD's Fiscal Year (FY) 2011 Notice of Funding Availability (NOFA)
Policy Requirements and General Section to
HUD's FY2011 NOFAs for Discretionary Programs
AGENCY: Office of the Secretary, HUD.
ACTION: Notice of HUD's FY2011 NOFA Policy Requirements and General Section to HUD's FY2011 NOFAs for Discretionary Programs (notice).
SUMMARY: This notice provides prospective applicants for HUD's competitive funding with the opportunity to become familiar with the General Section of HUD's FY2011 NOFAs, in advance of publication of any FY2011 NOFAs. It also describes HUD's policy priorities based on its Strategic Plan for FY2010-2015, as well as submission requirements for FY2011.
HUD's Policy Priorities
In FY2010, HUD published its Strategic Plan for FY2010-2015, which defined a new set of policy and organizational priorities for the Department. The plan provides the direction and focus of HUD in achieving its mission: create strong, sustainable, inclusive communities and quality, affordable homes for all. It proposes to accomplish this through five core goals, to:
1. Strengthen the Nation's Housing Market to Bolster the Economy and Protect Consumers
2. Meet the Need for Quality Affordable Rental Homes
3. Utilize Housing as a Platform for Improving Quality of Life
4. Build Inclusive and Sustainable Communities Free from Discrimination
5. Transform the Way HUD Does Business
For FY2011 HUD is retaining the same focus and policies for its NOFAs. More information on HUD's Strategic Plan for FY2010-2015 is provided in Section I.B. and C.
In FY2011 HUD is seeking grant applications for its competitive programs that will further the achievement of HUD's Strategic Plan goals and policy priorities. Below is the list of the cross-cutting policy priorities for FY2011. Each program NOFA will identify the policy priorities most applicable to the program. In selecting the policy priorities to be addressed, the program NOFA will also include the point value assigned to each policy priority listed.
HUD's FY2011 Policy Priorities are:
Submission Information
Applicants are advised to become familiar with the requirements of this General Section
and the following submission requirements:
The General Section and Program Sections comprise the NOFA instructions. Applicants
are also advised to provide copies of the General Section to all persons that will be
working on the application.
HUD requires that applicants apply electronically via Grants.gov, which requires advance
registration and annual updates. See Section IV. of this notice for more information.
However, please note that the Continuum of Care application is submitted through the
HUD eSNAPS system, not Grants.gov.
FOR FURTHER INFORMATION CONTACT: For further information on HUD's FY2011
Policy Requirements and General Section, contact the Office of Departmental Grants
Management and Oversight, Office of Administration, Department of Housing and Urban
Development, 451 7th Street, SW, Room 3156, Washington, DC 20410-5000, telephone number
202-708-0667. This is not a toll-free number. Persons with hearing or speech impairments may
access this number via TTY by calling the Federal Information Relay Service at 800-877-8339.
SUPPLEMENTARY INFORMATION: To help applicants with electronic application
registration and submission, HUD advises applicants to use the help features on the Dun and
Bradstreet (D&B), Central Contractor Registration (CCR) and Grants.gov sites. These sites all
have User Guides and Frequently Asked Questions which are updated on an ongoing basis.
HUD believes that early publication of the General Section is beneficial to prospective applicants
by providing advance notice of the Department's policy orientation for FY2011 including
strategic goals, policy priorities, threshold requirements and other requirements applicable to
almost every individual NOFA published by the Department. The General Section and Program
Sections together comprise the entirety of the NOFA instructions.
HUD hopes that the information in this General Section is helpful to you.
Executive Order 13279, “Equal Protection of the Laws for Faith-Based and Community Organizations.” HUD is committed to full implementation of Executive Order 13279. The Executive Order established fundamental principles and policymaking criteria to guide federal agencies in formulating and developing policies that have implications for faith-based and community organizations, to ensure the equal protection for these organizations in social service programs receiving federal financial assistance. Consistent with this order, HUD has reviewed all departmental policies and regulations that have implications for faith-based and community organizations and has established a policy to provide full and equal access to grassroots faith based and other community organizations in HUD program implementation. HUD revised its program regulations in 2003 and 2004 to remove the barriers to participation by faith-based organizations in HUD funding programs (68 FR 56396, September 30, 2003; 69 FR 41712, July 9, 2004; and 69 FR 62164, October 22, 2004).
h. Real Property Acquisition and Relocation. Except as otherwise provided by federal statute, HUD-assisted programs or projects are subject to the Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970, as amended (Uniform Act or URA) (42 U.S.C. 4601), and the governmentwide implementing regulations issued by the U.S. Department of Transportation at 49 CFR part 24. The Uniform Act's protections and assistance apply to acquisitions of real property and displacements resulting from the acquisition, rehabilitation, or demolition of real property for federal or federally assisted programs or projects. With certain limited exceptions, real property acquisitions for a HUD-assisted program or project must comply with 49 CFR part 24, subpart B. To be exempt from the URA's acquisition policies, real property acquisitions conducted without the threat or use of eminent domain, commonly referred to as ?voluntary acquisitions,? must satisfy the applicable requirements of 49 CFR 24.101(b)(1) through (5). Evidence of compliance with these requirements must be maintained by the recipient. The URA's relocation requirements remain applicable to any tenant who is displaced by an acquisition that meets the requirements of 49 CFR 24.101(b)(1) through (5).
The relocation requirements of the Uniform Act, and its implementing regulations at 49 CFR part 24, cover any person who moves permanently from real property or moves personal property from real property as a direct result of acquisition, rehabilitation, or demolition for a program or project receiving HUD assistance. While there are no statutory provisions for ?temporary relocation? under the URA, the URA regulations recognize that there are circumstances where a person will not be permanently displaced but may need to be moved from a project for a short period of time. Appendix A of the URA regulation (49 CFR 24.2(a)(9)(ii)(D)) explains that any tenant who has been temporarily relocated for a period beyond one year must be contacted by the displacing agency and offered URA relocation assistance. Some HUD program regulations provide additional protections for temporarily relocated tenants. For example, 24 CFR 583.310(f)(1) provides guidance on temporary relocation for the Supportive Housing Program for the homeless. Before planning their project, applicants should review the regulations for the programs for which they are applying. Generally, the URA does not apply to displacements resulting from the demolition or disposition of public housing covered by Section 18 of the United States Housing Act of 1937.
Additional information and resources pertaining to real property acquisition and relocation for HUD-funded programs and projects are available on HUD's Real Estate Acquisition and Relocation website at http://www.hud.gov/relocation. The website contains applicable laws and regulations, policy and guidance, publications, training resources, and a listing of HUD contacts to answer questions or otherwise provide assistance.
i. Conducting Business in Accordance with Core Values and Ethical Standards/Code of Conduct. Applicants subject to 24 CFR parts 84 or 85 (most nonprofit organizations and state, local, and Indian tribal governments or government agencies or instrumentalities that receive federal awards of financial assistance) are required to develop and maintain a written code of conduct (see 24 CFR 84.42 and 85.36(b)(3)). Consistent with regulations governing specific programs, your code of conduct must prohibit real and apparent conflicts of interest that may arise among officers, employees, or agents; prohibit the solicitation and acceptance of gifts or gratuities by your officers, employees, or agents for their personal benefit in excess of minimal value; and outline administrative and disciplinary actions available to remedy violations of such standards. Before entering into an agreement with HUD, an applicant awarded assistance under a HUD program NOFA issued in FY2011 will be required to submit a copy of its code of conduct and describe the methods it will use to ensure that all officers, employees, and agents of its organization are aware of its code of conduct. The code of conduct must be dated and signed by the Executive Director, or Chair of the governing body of the organization.
An applicant is prohibited from receiving an award of funds from HUD if it fails to meet this requirement for a code of conduct. An applicant that previously submitted an application and included a copy of its code of conduct will not be required to submit another copy if the applicant is listed on HUD's website at http://portal.hud.gov/hudportal/HUD?src=/program_offices/administration/grants/conduct and if the information is still accurate. An applicant not listed on the website must submit a copy of its code of conduct with its FY2011 application for assistance. An applicant must also include a copy of its code of conduct if the information listed on the above website has changed (e.g., the person who submitted the previous application is no longer the authorized organization representative, the organization has changed its legal name or merged with another organization, or the address of the organization has changed, etc.). Any applicant that needs to submit its code of conduct to HUD via facsimile using the form HUD96011, ?Facsimile Transmittal? (?Third Party Documentation Facsimile Transmittal? on Grants.gov) may do so at the time of application submission. This form is available as part of your application package downloaded from Grants.gov. When using the facsimile transmittal form, please type the requested information. Use the form HUD96011 as the cover page for the submission and include the following header in the top line of the form under Name of Document Being Requested: ?Code of Conduct for (insert your organization's name, city, and state).? Fax the information to HUD's toll-free number at 800-HUD-1010. If you cannot access the 800 number or have problems, you may use 215-825-8798 (this is not a toll-free number). If you use the wrong fax number, your fax will not be entered as part of HUD's FY2011 competition database. HUD cannot match FY2011 faxes to FY2011 applications if the wrong fax number is used. If the wrong fax number is used, your application will be reviewed without faxed information. Continuum of Care applicants should follow the directions in the Continuum of Care program NOFA for submission of Codes of Conduct.
k. Procurement of Recovered Materials. State agencies and agencies of a political subdivision of a state that are using assistance under a HUD program NOFA for procurement, and any person contracting with such an agency with respect to work performed under an assisted contract, must comply with the requirements of Section 6002 of the Solid Waste Disposal Act, as amended by the Resource Conservation and Recovery Act.
In accordance with Section 6002, these agencies and persons must procure items designated in guidelines of the Environmental Protection Agency (EPA) at 40 CFR part 247 that contain the highest percentage of recovered materials practicable, consistent with maintaining a satisfactory level of competition, where the purchase price of the item exceeds $10,000 or the value of the quantity acquired in the preceding fiscal year exceeded $10,000; must procure solid waste management services in a manner that maximizes energy and resource recovery; and must have established an affirmative procurement program for procurement of recovered materials identified in the EPA guidelines.
l. Participation in HUD-Sponsored Program Evaluation. As a condition of the receipt of financial assistance under a HUD program NOFA, all successful applicants will be required to cooperate with all HUD staff or contractors who perform HUD-funded research or evaluation studies.
m. Salary Limitation for Consultants. Unless otherwise provided in the program NOFA, FY2011 funds may not be used to pay or to provide reimbursement for payment of the salary of a consultant at a rate more than the equivalent of General Schedule 15, Step 10, base rate plus locality pay in accordance with Office of Personnel Management pay scales posted at http://www.opm.gov/oca/11tables/indexGS.asp
n. OMB Circulars and Governmentwide Regulations Applicable to Financial Assistance Programs. Certain OMB Circulars (2 CFR part 225) also apply to HUD program NOFAs. The policies, guidance, and requirements of OMB Circulars A-87 (Cost Principles Applicable to Grants, Contracts and Other Agreements with State and Local Governments), A-21 (Cost Principles for Education Institutions), A-122 (Cost Principles for Non-Profit Organizations), A-133 (Audits of States, Local Governments, and Non-Profit Organizations), and the regulations at 24 CFR part 84 (Grants and Agreements with Institutions of Higher Education, Hospitals, and other Non-Profit Organizations), and 24 CFR part 85 (Administrative Requirements for Grants and Cooperative Agreements to State, Local, and Federally Recognized Indian Tribal Governments) may apply to the award, acceptance, and use of assistance under the individual program NOFAs, and to the remedies for noncompliance, except when inconsistent with the provisions of applicable federal statutes or regulations, or the provisions of this notice. Compliance with additional OMB circulars or governmentwide regulations may be specified for a particular program in the applicable Program Section NOFA. Copies of the OMB circulars may be obtained from http://www.whitehouse.gov/omb/circulars/index.html, or from the Executive Office of the President Publications, New Executive Office Building, Room 2200, Washington, DC 20503; telephone number 202-395-3080 (this is not a toll-free number). Individuals with speech or hearing impairments may access this number by dialing 800-877-8339 (toll-free TTY Federal Information Relay Service).
Use of funds for mass transit, railroad, airport, seaport, or highway projects, as well as utility projects which benefit or serve the general public (including energy-related, communication-related, water-related, and wastewater-related infrastructure), other structures designated for use by the general public or which have other common-carrier or public-utility functions that serve the general public and are subject to regulation and oversight by the government, and projects for the removal of an immediate threat to public health and safety or brownfields, as defined in the Small Business Liability Relief and Brownfields Revitalization Act (Pub. L. 107-118), shall be considered a public use for purposes of Section 409.
11. Natural Materials and Systems
Program Description: The goals of this multidisciplinary program are to study, use, mimic, or alter how living systems accomplish their natural functions. Nature has used evolution to build materials and sensors that outperform current sensors (for example, a spider's haircells can detect air flow at low levels even in a noisy background). This program not only wants to mimic existing natural sensory systems, but also add existing capabilities to these organisms for more precise control over their material production. The research will encompass four general areas: sensory mimics, natural materials, natural/synthetic interfaces, and physical mechanisms of natural systems under environmental distress.
Sensory mimetic research attempts to mimic novel sensors that organisms use in their daily lives, and to learn engineering processes and mechanisms for control of those systems. This program also focuses on natural chromophores and photoluminescent materials found in microbial and protein-based systems as well as the mimicking of sensor denial systems, such as active and passive camouflage developed in certain organisms addressing predator-prey issues.
Basic Research Objectives: The natural materials area is focused on synthesis of novel materials and nanostructures using organisms as material factories. The program also focuses on understanding the structure and properties of the synthetic materials. The use of extremophiles is added to address the development of materials not accessible due to environmental extremes. We are also interested in organisms that disrupt or deny a material's function or existence in some way.
The natural/synthetic interfaces area is focused on the fundamental science at the biotic and abiotic interface. The nanotechnology and mesotechnology sub-efforts are focused on surface structure and new architectures using nature's idea of directed assembly at the nanoscale to mesoscale to create desired effects, such as quantum electronic or three dimensional power structures. The use of these structures is in the design of patterned and templated surfaces, new catalysts, and natural materials based-optics/electronics (biophotonics).
The “physical mechanisms of natural systems under environmental distress” area is focused on discovering and understanding basic natural mechanisms used by organisms that could be used to either harden or repair soft material-based devices. This will enable the Air Force to employ biological systems with optimum performance and extended lifetimes. As protein and nucleic acid molecules are increasingly used as catalysts, sensors, and as materials, it will be necessary to understand how we can utilize these molecules in extreme environments, with the ability to regulate the desired function as conditions change, and to store the device for prolonged periods of time. Areas of interest include: the mechanisms for survival and protein stability in extremophilic archaea, fundamental studies of bacterial sporulation, and enzymatic engineering for faster catalysis in materials identification or degradation.
Dr. Hugh C. De Long AFOSR/RSL (703) 696-7722
DSN 426-7722 FAX (703) 696-7360
E-mail: hugh.delong@afosr.af.mil
12. Bioenergy
Program Description: This program aims to understand and improve the facility of photosynthetic microbes to produce biofuels (specifically, molecular hydrogen and algal lipids) for use in fuel cells and air breathing engines, and also to enhance the power density of enzymatic and microbial biofuel cells and the range of complex, impure or mixed natural substrates that the biofuel cells can oxidize and convert to electricity. The capacity to supply renewable hydrogen and high energy-dense hydrocarbons on a macro-scale using engineered photobiological systems will enable the military to power tanks, planes and ships on renewable energy, at a predictable cost basis and independent of foreign energy markets. On the other hand, microorganisms and enzymatic processes that can be bioengineered to produce electricity on a micro-scale using readily available complex or mixed biofuels could serve as portable compact power sources for such low-powered devices as remote sensors or future miniature unmanned air and land vehicles.
Basic Research Objectives: This program supports research that explores the biochemical and molecular processes found in certain oxygenic phototrophs, such as microaglae and cyanobacteria, which enable them to generate molecular hydrogen and lipid biofuels when supplied with only water, carbon dioxide and light. Knowledge of the physiological, biochemical and genetic factors involved in limiting and augmenting production of these biofuels will be used to bioengineer photosynthetic organisms whose generation of hydrogen and lipid biofuels will be both highly efficient and controllable. Basic research may include areas such as photosynthetic biochemistry, hydrogenase enzymology, genetic and metabolic engineering, systems biology, biocatalysis, microbial physiology and ecology, and lipid biosynthesis. In addition, some funds may be available to explore novel, fundamental biomimetic approaches in artificial photosynthesis for the generation specifically of high energy-dense solar fuels, such as straight- and branched-chain hydrocarbons. Progress in these areas is viewed as essential in developing the biotechnology needed to generate renewable, carbon-neutral supplies of lipid-derived jet fuels and fuel-cell hydrogen.
This program also supports research to enable the development of biofuel cells, both microbial and enzymatic, that can convert complex and impure fuel sources into electrical energy at sufficiently high power densities to be useful in portable devices. The idea is that biofuel cells will sustain their power by utilizing a wide range of fuel sources from the environment, such as ambient carbohydrates and macromolecules. Development of self-sustaining microbial or enzymatic biofuel cells will require understanding certain basic fundamental issues, including optimizing current production under variable conditions, biological mechanical energy storage, electron and proton transfer reactions and kinetics between enzymes/microbes and the electrode surface, theoretical modeling of mass transport in model biofuel cells, novel electrode designs, and enzyme engineering for faster catalysis.
Dr. Walter Kozumbo, AFOSR/RSL (703) 696-7720
DSN 426-7720 FAX (703) 696-7360
E-mail: walter.kozumbo@afosr.af.mil
Organization
The Office of Energy Efficiency and Renewable Energy's (EERE) programs conduct activities in partnership with the private sector, state and local government, DOE national laboratories, and universities.
The Office of EERE works with several of the U.S. Department of Energy's national laboratories in order to support and further its mission. Learn more about all of the laboratories that support EERE.
Mission
BER advances world-class biological and environmental research programs and scientific user facilities to support DOE's energy, environment, and basic research missions.
Mission priorities:
Develop biofuels as a major secure national energy resource
Understand relationships between climate change and Earth's ecosystems, and assess options for carbon sequestration
Predict fate and transport of subsurface contaminants
Develop new tools to explore the interface of biological and physical sciences
Organizational Structure
Biological Systems Science Division (BSSD) - supports fundamental research and technology development to achieve a predictive, systems-level understanding of complex biological systems to advance DOE missions in energy, climate, and environment.
Climate and Environmental Sciences Division (CESD) - supports fundamental research to achieve a predictive, systems-level understanding of climate change, as well as subsurface contaminant fate and transport, to advance DOE missions in energy, climate, and environment.
Research Activities
Since initiating the Human Genome Project in 1986, BER has spearheaded the development of modern genomics-based systems biology and played a major role in seeding and fostering the contemporary biotechnology revolution, while at the same time supporting forefront research on the impacts of energy production and use on climate change. BER's research program, closely aligned with DOE mission goals, aims at understanding complex biological and environmental systems across many spatial and temporal scales, from the sub-micron to the global, from individual molecules to ecosystems, from nanoseconds to millennia, to develop predictive knowledge relevant to DOE mission challenges. Two areas vital to the Nation's energy security and environmental future lie at the core of the BER research agenda: developing cost-effective cellulosic biofuels and improving our ability to understand, predict, and mitigate the impacts of energy production and use on climate change.
Last modified: 4/4/2011 10:29:59 AM
Biological Systems Science Division (BSSD)
The Biological Systems Science Division manages a diverse portfolio of fundamental research and technology development to achieve a predictive, systems-level understanding of complex biological systems to advance DOE missions in energy, climate, and environment. The division was formed from the merger of the formerly separate Life Sciences Division and the Medical Sciences Division. Specific research areas include:
Genomic Science Research
Genomic Science Research - to underpin the development of biotechnology solutions for energy, the environment, and carbon sequestration. This program will develop genome-scale technologies needed to understand the function of microbial and plant systems, from proteomics to metabolomics to regulatory networks to ecogenomics. The Genomic Science goal is to develop the computational capabilities and systems needed to predictively design and model complex biological systems.
DOE Bioenergy Research Centers - to accelerate genomics-based systems biology research to achieve the transformational breakthroughs in basic science needed for the development of cost-effective technologies to make production of next-generation biofuels from lignocellulose, or plant fiber, commercially viable on a national scale.
Radiochemistry and Instrumentation: supports fundamental research in radiochemistry and radiotracer development activities that include development of new methodologies for real-time, high-resolution imaging of dynamic biological processes in energy- and environment-relevant contexts.
Low Dose Radiation Research - to understand and characterize the risks to human health from exposures to low levels of radiation.
Artificial Retina - utilizes the resources of the national laboratories in material sciences, engineering, microfabrication, and microengineering to develop unique neuroprostheses and continue development of an artificial retina to restore sight to the blind.
Ethical, Legal and Social Issues (ELSI) - supports Office of Science interests in bioenergy, synthetic biology, and nanotechnology, including communication of the societal implications arising from these programs.
DOE Human Subjects Protection Program - to ensure compliance with Federal regulations and DOE Orders to protect human subjects. All research conducted at DOE, supported with DOE funds, or performed by DOE employees must comply.
Scientific User Facilities
Structural Biology - to develop and support DOE national user facilities for use in fundamental structural biology.
DOE Joint Genome Institute to advance genomics in support of the DOE missions in energy, climate, and environment.
For additional information about these specific programs, please contact an appropriate staff member . Last modified: 4/14/2011 1:54:01 PM
The mission of the JGI is to provide genome sequencing, genome data acquisition, and genome analysis in support of the DOE mission needs in bioenergy, carbon cycling and biosequestration, and environmental remediation and stabilization.
Program Description
The DOE-JGI was created in 1997 to carry out accurate, high throughput sequencing of human DNA in support of DOE's role in the Human Genome Project (HGP). With the completion of the HGP, the JGI sequencing capacity was refocused on the genomes of the microbes, microbial communities (metagenomes) and other organisms (fungi, plants) important to the DOE mission. Since 2000, the JGI has served as a Scientific User Facility, inviting and responding to requests from the external scientific community for sequencing of microbial, plant, and other (non-pathogen) targets. In all cases, the aim of the JGI is to provide to the national and international scientific community both the genome-derived "parts lists" as well as high quality computational analyses that support further discovery.
Solicitations
The DOE-JGI publishes an annual Community Sequencing Program solicitation for sequencing targets (see: http://www.jgi.doe.gov/CSP/index.html ). This program is presently open to letters of intent until March 15, 2010. NOTE: The JGI does NOT provide funding support for sequencing or other research efforts. The Community Sequencing Program (CSP) provides the scientific community at large with access to high-throughput sequencing of significant scale at the DOE-JGI for projects of relevance to DOE missions. Sequencing projects are chosen based on scientific merit--judged through independent peer review--and relevance to issues in global carbon cycling, energy production, biogeochemistry and low dose radiation responses. Criteria for participation in this program, the review process, and interactions between JGI and participants are outlined at: http://www.jgi.doe.gov/CSP/index.html ). Through this program, the Department of Energy aims to advance sequence-based scientific research from a broad range of disciplines. Three items to note:
Proposals for bacterial and archaeal isolates, to be submitted as brief white papers will be accepted on a continuous basis, and will be reviewed every three months (typically early in February, May, August, and November of each year).
Proposals that utilize JGI's expanding capacity for new technology sequencing are encouraged. This includes large-scale metagenome sequencing, transcript profiling, and resequencing of organisms for which reference genomes currently exist.
Proposals requesting sequencing of eukaryotic genomes will be considered, but must include demonstration of genome size and polymorphism rate and should be supported by a significant user community.
Why the Program's Research is Important
The genome sequence of any organism, from a virus to an entire multi-species community, provides a catalogue of the component "working parts" The knowledge of that "parts list" is a fundamental starting point for a powerful array of biological investigations to describe and predict cellular function. Comparative genome and community genome (metagenome) studies also contribute towards understanding fundamental principles of the control circuits regulating gene expression and action, and how external signals (environmental, hormonal, chemical, etc.) influence gene activities.
Sequencing of submitted projects by the program is contingent on adherence to this data sharing policy. It is also expected that organisms sequenced by the JGI will be deposited in public repositories to ensure public access to sequenced strains.
More Information about the Program and Its Accomplishments
Program Manager
Dan Drell, Ph.D.
Biological Systems Science Division, SC-23.2
U.S. Department of Energy, GTN Bldg.
1000 Independence Avenue, SW
Washington, DC 20585-1290
Phone: (301) 903-4742
Fax: (301) 903-0567
Email: daniel.drell@science.doe.gov
The conference agreement provides $5,617,920,000 for research and related activities.
The conference agreement transfers $54,000,000 from NSF to the United States Coast Guard (USCG) for icebreaking services to cover all anticipated operation and maintenance costs for fiscal year 2010. The conferees expect that in future years all operation and maintenance budget authority for these USCG icebreakers will be requested by the Department of Homeland Security.
Within the funds provided, the conferees direct NSF to maintain funding at the levels requested for the following activities:
Climate change
Cyber-enabled discovery and innovation
Science and engineering beyond Moore 's law
Adaptive systems technology
Dynamics of water processes in the environment
National Radio Astronomy Observatory
In addition, the conferees support House direction on high-risk, high-reward basic research; funding for research on ocean acidification; support for 2,000 graduate research fellowships across all of NSF; climate change education; and funding of EPSCoR. Beyond these requirements, the conferees expect NSF to accommodate the reduction from the request based on its judgment of where funding will be used most effectively.
The conferees support the direction in the Senate report with respect to VORTEX2.
The conferees direct NSF to transfer $100,000 to the National Academy of Sciences as directed by the House .
Hydrology, terrestrial ecosystems and soils.—The conferees see the need for an appropriate mechanism to bring together the hydrology research community and better integrate the different types of data and observing systems and enhance support of hydrology modeling, and to institutionalize this mechanism. The conferees also see the need for an appropriate mechanism to bring together the terrestrial ecology and soils research communities. NSF is directed to report its recommendations on the need for and establishment of mechanisms in these two areas with the budget request for fiscal year 2011.
######
FY 2011 Request
Fundamental Nanoscale Phenomena and Processes
Nanomaterials
Nanoscale Devices & Systems
Instrumentation Research, Metrology, & Standards for Nanotech
Nanomanufacturing
Major Research Facilities and Instrumentation Acquisition
Societal Dimensions: Environment Health and Safety (EHS)
Societal Dimensions: Education (EDUC)
Societal Dimensions: Ethical, Legal & Other Soc Issues (ELSI)
National Nanotechnology Initiative (NNI) Funding Opportunities at NSF in FY 2011
For fiscal year 2011, the National Science Foundation budget request for the National Nanotechnology Initiative (NNI) is approximately $401 million. All participating research and education directorates and the Office of International Science and Engineering (OISE) accept proposals with an international component following a competitive selection process. The NSF contribution covers only expenses made by the U.S. universities for research and for international interactions such as workshops, visiting students and professors in U.S. and abroad.
The participating directorates are: Biological Sciences (BIO), Computer and Information Science & Engineering (CISE), Engineering (ENG), Geosciences (GEO), Mathematical and Physical Sciences (MPS), Social, Behavioral and Economic Sciences (SBE), and Education and Human Resources (EHR).
• The Small Business Innovative Research (SBIR) and Small Business Technology Transfer (STTR) programs: http://www.nsf.gov/eng/iip/sbir/
• Also, it is expected that most of the program solicitations competed in FY 2010 will continue in FY 2011. Such solicitations will be announced on this website at the time of publication.
• International supplements. Awards made in previous fiscal years for individual investigators, groups, centers, and user facilities can be supplemented by the programs.
Research and education areas in nanoscale science and engineering are inherently interdisciplinary, and proposals for collaborative approaches are encouraged to address research and education themes with a synergistic blend of expertise as appropriate. Each successful proposal may be funded by either one or more
The National Science Foundation's (NSF) fiscal year (FY) 2009 budget request to Congress identifies areas for NSF-wide investments. Strengthening capabilities in each of these areas will enhance the productivity and efficiency of the science and engineering enterprise while producing concrete economic and social benefits for the nation.
Examples of major crosscutting activities include ADVANCE: Increasing the Participation and Advancement of Women in Academic Science and Engineering Careers, Faculty Early Career Development (CAREER), Graduate Fellowships and Traineeships, Long-Term Ecological Research (LTER), Research Experiences for Teachers (RET), Research Experiences for Undergraduates (REU), Research in Undergraduate Institutions (RUI) and Science and Technology Centers (STCs).
George E. Brown, Jr. Network for Earthquake Engineering Simulation Research (NEESR)
Richard J. Fragaszy, Program Director, Geotechnical Engineering Program, Directorate for Engineering, Division of Civil, Mechanical and Manufacturing Innovation, 545 S, telephone: (703) 292-7011, fax: (703) 292-9053, email: rfragasz@nsf.gov
Joy M. Pauschke, Program Director, George E. Brown, Jr. Network for Earthquake Engineering Simulation, Directorate for Engineering, Division of Civil, Mechanical and Manufacturing Innovation, 545 S, telephone: (703) 292-7024, fax: (703) 292-9053, email: jpauschk@nsf.gov
Dennis Wenger, Program Director, Infrastructure Management and Extreme Events Program, Directorate for Engineering, Division of Civil, Mechanical and Manufacturing Innovation, 545 S, telephone: (703) 292-8606, fax (703) 292-9053, email: dwenger@nsf.gov
The Division of Civil, Mechanical and Manufacturing Innovation (CMMI) in the Directorate for Engineering (ENG) of the National Science Foundation (NSF) invites proposals for research that uses the George E. Brown, Jr. Network for Earthquake Engineering Simulation (NEES) to advance knowledge, discovery, and innovation for (1) earthquake and tsunami loss reduction of our nation's civil infrastructure, and (2) new experimental simulation techniques and instrumentation for NEES. NEES comprises a network of 14 earthquake engineering experimental equipment sites available for experimentation on-site or in the field and through telepresence. NEES equipment sites include shake tables, geotechnical centrifuges, a tsunami wave basin, unique large-scale testing laboratory facilities, and mobile and permanently installed field equipment. The NEEShub cyberinfrastructure connects, via Internet2, the equipment sites as well as provides telepresence; a curated central data repository known as the NEES Project Warehouse; simulation tools; collaborative tools for facilitating on-line planning, execution, and post-processing of experiments; and the NEES Academy for education and outreach. Projects proposed and supported under this solicitation must require significant use of one or more of the NEES equipment sites listed at http://www.nees.org and the related cyberinfrastructure and/or require significant reuse of data curated and archived in the NEES Project Warehouse at http://nees.org/warehouse . Proposals that seek new scientific inquiry through reuse of data curated and archived in the NEES Project Warehouse, either alone or in combination with use of the NEES equipment site(s), will be considered. The data eligible for reuse from the NEES Project Warehouse must be data that are curated, archived, and publicly viewable and available at http://nees.org/warehouse .
GSA Testing Innovative Sustainable Technologies and Practices
Green Proving Ground program to test emerging technologies in federal buildings.
GSA # 10793
April 21, 2011
MaryAnne Beatty, 202-501-0768
maryanne.beatty@gsa.gov
WASHINGTON – GSA announced today that it will test and evaluate 16 emerging sustainable building technologies and practices in select federal facilities under its Green Proving Ground Program. Testing will determine the most effective technologies that may then be replicated on a wider-scale basis throughout the GSA inventory, with the goal of transforming markets for these technologies.
“GSA is leading the way in sustainable design and construction operations,” GSA Administrator Martha N. Johnson said. “By using our real estate portfolio as a test bed for new technologies, we can then provide further innovation in energy-efficiency standards and implement best practices that will lead the market.”
The technologies selected were from a pool of approximately 140 projects across GSA's national portfolio that are currently implementing innovative or underutilized sustainable building technologies. The 16 technologies and practices were selected for evaluation because they have the greatest potential to meet GSA's sustainability goals. Examples of the technologies chosen include wireless temperature sensors, electrochromic windows, high R-value windows, integrated lighting systems, thin-film photovoltaic panels, solar water heating with integrated photovoltaic panels, chilled beams, and nonchemical water treatment systems.
With support from the Department of Energy's National Laboratories, the Green Proving Ground Program will perform enhanced testing, monitoring, and evaluation on these selected technologies. Notable findings from all of the projects will be used to support the development of performance specifications for GSA's real estate portfolio and other federal agencies. Additionally, testing these technologies will assist industry in deploying the technology and practices studied.
For more information on the 16 technologies to be evaluated under GSA's Green Proving Ground Program and on GSA's registry of sustainable building technologies, visit http://www.gsa.gov/GPG .
As the federal government's workplace solutions provider, the U.S. General Services Administration works to foster an effective, sustainable and transparent government for the American people. GSA's expertise in government workplace solutions include:
• Effective management of government assets including more than 9,600 government-owned or leased buildings and 215,000 vehicles in the federal fleet, and preservation of historic federal properties;
• Leveraging the government's buying power through responsible acquisition of products and services making up approximately 14 percent of the government's total procurement dollars;
• Providing innovative technology solutions to enhance government efficiency and increase citizen engagement; and,
• Promoting responsible use of federal resources through development of government wide policies ranging from federal travel to property and management practices.
GSA contract award services where Fedmarket handles all aspects of preparation, submission, and negotiation of the GSA Schedule proposal. The goal of the engagement is the award of your GSA Schedule contract.
Public Release: 21-Apr-2011 IEEE/NIH 2011 Life Science Systems and Applications Workshop Researchers create functioning synapse using carbon nanotubes
Engineering researchers at the University of Southern California have made a significant breakthrough in the use of nanotechnologies for the construction of a synthetic brain. They have built a carbon nanotube synapse circuit whose behavior in tests reproduces the function of a neuron, the building block of the brain. National Science Foundation, Viterbi School of Engineering, USC Women in Science and Engineering Program
( In reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the Clean Air Act. In this context, in the absence of a prior existing requirement for the State to use voluntary consensus standards (VCS), EPA has no authority to disapprove a SIP submission for failure to use VCS. It would thus be inconsistent with applicable law for EPA, when it reviews a SIP submission, to use VCS in place of a SIP submission that otherwise satisfies the provisions of the Clean Air Act. Thus, the requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do not apply.)
Today's environmental tip: Breathe easy! On unhealthy air pollution "action alert" days, wait to mow your lawn until it's cooler in the evening or early the next morning. You help reduce air pollution for everyone near you if you run gas-powered equipment, like lawn mowers, when it's cooler. You also protect your health by avoiding ground-level ozone during the warmest part of the day.
en español: ¡Respire fácilmente! En los días de aviso de contaminación del aire malsano, espere para usar la cortadora de césped hasta cuando refresque en la noche o temprano en la mañana siguiente. Puede contribuir a la reducción de la contaminación del aire para todos a su alrededor si usa el equipo que usa combustible como las cortadoras de césped cuando hace más fresco. También protege su salud al evitar el ozono a nivel terrestre durante las horas más calientes del día.
Want more tips? Visit EPA's Earth Day site to learn more about Earth Day, the US Environmental Protection Agency, and what you can do to help protect human health and the environment. http://www.epa.gov/earthday/tips.htm
Major California Property Rights Victory for Landowners in Eminent Domain Abuse Fight
National City Violated Federal Constitution and State Laws
Published on Apr 23, 2011 - 5:41:49 AM
By: Institute for Justice
NATIONAL CITY , Calif. April 22, 2011 — A California gym that mentors at-risk kids scored a knockout legal blow against eminent domain abuse in California . Yesterday, April 21, Judge Steven R. Denton of the Superior Court of California ruled in favor of the Community Youth Athletic Center (CYAC) and against National City , Calif. , in one of the most important property rights cases in the nation. Carlos Barragan, Jr., who along with his father created the CYAC as a means of keeping local at-risk kids out of gangs, will join with other CYAC leaders at the gym at 10:30 a.m. California time to discuss the ruling with the media. The gym is located at 1018 National City Blvd., National City, Calif.
The Court struck down National City's entire 692-property eminent domain zone in the first decision to apply the legal reforms that California enacted to counter the disastrous U.S. Supreme Court Kelo decision in 2005. This ruling, which found that National City lacked a legal basis for its blight declaration, reinforces vital protections for property owners across the state, and underscores why redevelopment agencies should be abolished.
The Court also ruled that National City violated the Due Process clause of the U.S. Constitution in failing to provide the CYAC with statutorily required information prior to an important public hearing.
Finally, in a holding with implications well beyond redevelopment law, the Court also held that when the government retains a private consultant to perform government functions—in this case, documenting the existence of alleged "blight" in National City —documents that the private consultant produces are public records subject to disclosure under the California Public Records Act. The Court also set a clear standard for what government agencies have to do in searching the records of their private consultants in response to a Public Records Act request.
"After Kelo, the California Legislature limited a city's ability to declare ‘blight' based on trivial things like ‘lack of parking' and required real evidence and documentation from redevelopment agencies," said Dana Berliner, a senior attorney with the Institute for Justice, which represented the CYAC for free. " National City completely ignored the new law when it decided to threaten the CYAC and nearly 700 other properties with eminent domain for private development. The Court's decision holds that the new law placed real restrictions on redevelopment agencies and that National City violated the law. This is the very first case interpreting the changes to the law that went into effect on January 1, 2007, in response to the Kelo decision."
Berliner said, "This decision will go a long way in protecting Californians throughout the state against eminent domain abuse."
Clemente Casillas, the CYAC President, said, "I hope National City does the right thing now and throws in the towel so we can get back to focusing all our attention on helping to grow the kids in our community. The city can have redevelopment, but that has to be done through private negotiation, not by government force."
IJ Senior Attorney Jeff Rowes said, "Redevelopment agencies always use private consultants to come up with blight studies. The Court ruled that the documents and data produced by those consultants are public records, just like government-produced documents. That ruling will help everyone trying to fight a blight designation of their neighborhood, and it will also help the media and anyone else trying to get more information about government projects. We've been saying for years that the city's blight study lacked any information the CYAC needed to do a meaningful review. The court agreed, saying it was mostly jargon and that the city should have given the CYAC more time and continued the public hearing when the CYAC requested it."
California Governor Jerry Brown has proposed eliminating local redevelopment agencies across the state. These agencies, which are run by the cities they reside in, have taken properties they didn't own only to hand that land over to those with more political power. They have driven city after city in California to the brink of bankruptcy, often for nothing more than private gain.
" National City has been labeling this area blighted since the 1960s," said Rowes. "This decision provides another example of a redevelopment agency that is out of control and should be abolished."
The CYAC got almost everything it asked for in this lawsuit. The Court invalidated the city's redevelopment plan amendment that authorized eminent domain, declared that the city violated the Public Records Act, declared that the city violated the CYAC's due process rights, and gave the CYAC nominal damages. The CYAC is finally free from the threat of eminent domain for the first time in nearly four years.
Richard M. Segal, Brian D. Martin and Nathan R. Smith from Pillsbury Winthrop Shaw Pittman LLP in San Diego , acting as pro bono local counsel, put in extraordinary time and effort on the case.
Human rules may determine environmental 'tipping points'
Published Apr 16, 2011 - 7:53:58 AM
A new paper appearing in the Proceedings of the National Academy of Sciences (PNAS) suggests that people, governments, and institutions that shape the way people interact may be just as important for determining environmental conditions as the environmental processes themselves.
Researchers create functioning synapse using carbon nanotubes
Published Apr 23, 2011 - 7:24:30 AM
Engineering researchers at USC Viterbi have made a significant breakthrough in the use of nanotechnologies for the construction of a synthetic brain. They have built a carbon nanotube synapse circuit whose behavior in tests reproduces the function of a neuron input, the synapse, the a building block of the brain.
Appendix 19
Terms & Acronyms
Acronym
Definition
AC
Advisory Committee
AC/GPA
Advisory Committee for GPRA Performance Assessment
AD
ARRA
NSF Assistant director
American Recovery and Reinvestment Act of 2009
BFA
Office of Budget, Finance and Award Management
BIO
Directorate for Biological Sciences
BIIS
NSF Budget Internet Information System
CAREER
Faculty Early Career Development Program
CGI
Continuing Grant Increments
CISE
Directorate for Computer and Information Science and Engineering
COV
Committee of Visitors
EAGER
EHR
Early-concept Grants for Exploratory Research
Directorate for Education and Human Resources
EIS
Enterprise Information System
ENG
Directorate for Engineering
EPSCoR
Experimental Program to Stimulate Competitive Research
FTE
Full-Time Equivalent
FY
Fiscal Year
GEO
Directorate for Geosciences
GPRA
Government Performance and Results Act
IPAs
Temporary employees hired through Intergovernmental Personnel Act
IPAMM
Impact of Proposal & Award Management Mechanisms
IPS
Interactive Panel System
MPS
Directorate for Mathematical and Physical Sciences
NSB
National Science Board
NSF
National Science Foundation
OCI
Office of Cyberinfrastructure
OD
Office of the Director
ODS
Online Document System
OIA
Office of Integratative Activities
OIG
Office of Inspector General
OISE
Office of International Science & Engineering
OMB
Office of Management and Budget
OPP
Office of Polar Programs
PARS
Proposal, PI and Reviewer System
PART
Program Assessment Rating Tool
PI
Principal Investigator
RAPID
R&RA
Grants for Rapid Response Research
Research and Related Activities
SBE
Directorate for Social, Behavioral and Economic Sciences
SGER
Small Grants for Exploratory Research
VSEE
Visiting Scientists, Engineers and Educators
Advisories
Special Instructions for Institutions and Businesses entering Primary Place of Performance (PPoP)
The FastLane Cover Sheet has been revised for consistency with the requirements of the Federal Funding & Accountability Act (FFATA) to replace the Performing/Research Organization information with Project/Performance Site Primary Location information. This change already has been made on a government-wide basis in the SF 424 family of forms. If the project will be performed at a location other than the awardee, additional geographic information must be provided (GPG, Chapter II.C.2.a).
To ensure compliance with the FFATA reporting requirements, and to improve the quality of data associated with NSF-funded awards, the GPG now specifies that a nine-digit zip code be entered in the applicable cover sheet field. The nine-digit zip code is validated against the US Postal Service?s (USPS) database, which ensures that the location can be accurately identified as well as aligning with the correct congressional district.
When entering the zip code for the Primary Place of Performance for locations within the United States , you may encounter the error message 'a valid zip code is required'. If you receive this error message, you must enter the correct zip code in order to submit your proposal. It is recommended that you look up the street address of the Project/Performance Site Primary Location on the USPS website http://usps.com and enter the zip code displayed there.
NASA And Partners Fund New Climate Impact Studies On Species And Ecosystems
Published Apr 22, 2011 - 11:35:46 AM
NASA is partnering with other federal agencies to fund new research and applications efforts that will bring the global view of climate from space down to Earth to benefit wildlife and key ecosystems.
Public Meeting in Sacramento on Bay Delta Conservation Plan April 25
Published Apr 23, 2011 - 4:33:35 AM
California Secretary for Natural Resources and Deputy Secretary of the Interior will hold a public meeting to discuss the Bay Delta Conservation Plan (BDCP). Natural Resources Agency Deputy Secretary Dr. Jerry Meral will provide an update on the working draft of the plan, the process for resolution of key features, and important environmental analysis needed before a final plan can be approved. Stakeholder panels made up of Delta communities, water users and conservation organizations will provide their perspectives on the opportunities and challenges facing the BDCP. Senior administration officials will also talk one-on-one with meeting attendees to hear their individual thoughts on the BDCP process moving forward.
GSA Awards Contract for "The Military to Civilian Transition Guide" PR Web (press release)
GSA awarded a contract to Competitive Edge Services, Inc. (dba Corporate Gray) for "The Military to Civilian Transition Guide", a career transition guide for Army, Navy, Air Force, Marine Corps, and Coast Guard personnel. This GSA contract makes it ... See all stories on this topic »
Question
Will new funding be available? Answer
At this time, additional funding for demonstration projects is not budgeted. However, we will seek and encourage innovative funding to demonstrate the principles of the Memorandum. CALTRANS is partnering with a commercial seed source to find better establishment techniques of native plants. The Florida DOT with the help of the Florida Federated Garden Clubs is using research grant to plant native plant interpretative gardens at Welcome Centers to increase public awareness. Further partnerships with educational institutions, arboreta, commercial nurseries, botanic gardens and garden clubs are encouraged. These partnerships in themselves will improve public awareness. Question
Will "cultural landscapes" have to be replaced with environmentally and economically beneficial landscapes? Answer
No. Cultural or historical, or existing landscapes are not expected to be replaced. The Executive Memorandum applies only to landscape projects implemented after August 10, 1995, or realistically projects funded beginning October 1, 1995. Question
Will the Federal Highway Administration assist States in implementing the Memorandum? Answer
The FHWA will facilitate the implementation in every way possible. Further guidelines for the use of native plants in wildflower and treeways programs are in progress. State-by-State lists of what plants are native are also in progress. The FHWA is developing a training course/workshop mechanism to further share information about the Memorandum's approach. The FHWA will continue to share experiences and information for all States through the quarterly Greener Roadsides. Question
Can consistency among agencies be expected? Answer
We have been assured by the Federal Environmental Executive, who oversees the implementation of the Memorandum, that consistency will be the rule. This page last modified on April 1, 2011
GUIDANCE FOR PRESIDENTIAL MEMORANDUM ON ENVIRONMENTALLY AND ECONOMICALLY BENEFICIAL LANDSCAPE PRACTICES ON FEDERAL LANDSCAPED GROUNDS
AGENCY: Office of the Federal Environmental Executive, EPA
ACTION: Notice
SUMMARY: This document announces guidance developed by the interagency workgroup under the direction of the Federal Environmental Executive to assist federal agencies in the implementation of environmentally and economically beneficial landscape practices. This guidance is in response to the requirements of the executive memorandum on Environmentally and Economically Beneficial Landscape Practices on Federal Landscaped Grounds.
FOR FURTHER INFORMATION: Contact Debra Yap, (202) 260-9291.
SUPPLEMENTARY INFORMATION:
On April 26, 1994, the President issued a memorandum to Federal agencies addressing landscape management practices on federal landscaped grounds. In developing the implementing guidance, the Federal Environmental Executive sought public comment through a Federal Register "Notice, Review & Comment." This guidance, as written by the interagency taskforce, represents the culmination of discussions among interested parties, industry and government, and the responses to the Federal Register Notice.1
The principles identified here provide a framework for the use of environmentally and economically beneficial landscape practices on managed federal lands and federally-funded projects. They are meant to improve and expand upon current principles of landscape design, implementation and management. They are intended to assist in federal planning and decision-making and can be incorporated into federal agency guidance/policy for landscape management practices.
Manage Pesticides and Fertilizers: The improper use of pesticides and fertilizers contributes to the pollution of both surface and groundwater in the United States. Using effective landscape management practices, and appropriate application of pesticides and fertilizers, federal agencies may minimize that impact on water quality as well as to other aspects of the environment.
Further, federal agencies may better manage soil amendments and fertilizers by utilizing soil and plant tissue samples analyses which can indicate soil deficiencies and nutrient use. The recommended method of managing pests and pesticides is called Integrated Pest Management or IPM as described below. Use IPM: Through the use of appropriate control measures and proper application, IPM can result in a reduction in the use of chemicals contained in pesticides which may adversely impact human health and the environment. Integrated Pest Management is a decision-making process which considers cultural, mechanical, biological, and chemical controls of pests. Control mechanisms are selected as each situation warrants. Where chemical control is used, specific pest populations are targeted when they are most vulnerable rather than indiscriminate application of these chemicals.
Minimize Runoff: Uncontrolled runoff adversely impacts the environment: 1) as a major contributor to soil erosion; and 2) the primary vehicle for chemical pollutants to be introduced into the environment (particularly non-point source runoff). Federal agencies can ameliorate adverse impacts associated with run-off through a variety of preventative mechanisms: physical; vegetative, and operational. For example, grasses have been demonstrated to be a viable mechanism for minimizing run-off and controlling soil erosion. A viable method of managing the pollutants associated with the first flush of stormwater run-off is bioretention of the storm water in an appropriately landscaped area.
Recycle Landscape Trimmings: Federal agencies have the opportunity to effect both good landscape management practices and good waste management practices by recycling and using recycled landscape trimmings. A significant portion of what is treated as waste is comprised of leaves, grass clippings, plant trimmings, and woody material. These elements are a desirable resource for composted material, mulches, and landscape amendments. By using these products, federal agencies can effectively and economically enrich the soil, promote plant growth, preserve soil moisture, reduce erosion, and inhibit weed growth.
4. Implement Water and Energy Efficient Practices: Irrigating lawns and landscapes can account for a significant proportion of total water use, particularly during peak watering season. Reducing the inefficient irrigation of lawns and landscapes with potable water can reduce water cost, and the energy usage/cost associated with water pumping. In addition, water use efficiency can relieve the increasing demand being placed on water resources, distribution systems, and wastewater treatment systems.
Federal facilities can effectively reduce water use and conserve potable water through a number of practices. For example, water usage can be reduced through the use of mulches and careful selection and siting of plants. Plants adapted to local conditions can be selected so supplemental water will not be required after an initial establishment period of 3-5 years. Other water-efficient landscape practices include: determining the water requirements for discrete water-use zones; using and maintaining http://www.doi.gov/greening/buildings/landscaping.pdf
WATERSHED ADMINISTRATIVE MANAGEMENT
The following issues were identified during the scoping process:
the EIS process itself, including the extent to which public involvement and local consultation and review would play a part;
socioeconomic issues centering on land acquisition and multiple-use opportunities and conflicts, as well as on potential local effects on the economy;
cultural values and resource protection;
tribal rights;
public access;
project management (who, and by what means);
resources management: water, vegetation, wetlands, fish and wildlife; weeds/chemicals;
fire management;
issues related to public versus private land ownership; and
government "taking" of private property.
Many of these issues were also identified for and addressed in the Wildlife Mitigation Program EIS.
comprehensive - in terms of basin geography, political units, and water resources;
inclusive - created by all stakeholders and attentive to their environmental, social, regulatory and
economic goals; and,
integrated - taking stock of relationships between the quantity and quality of water, ground and
surface water interaction, as well as interactions of other natural resources and environmental
conditions.
Taking a comprehensive, inclusive, and integrated approach to water resource planning, allocation
and management is intended to produce a strategic action plan to better protect water quantity, water
quality and related resources for current and future needs. Greater cooperation leads to widespread
support for agreed upon management objectives and action plans, and reduced reliance on new
regulatory requirements and litigation.2 Solutions are more practical and acceptable, and thus, more
effective and lasting.
The Natural Resource Conservation Service (NRCS) is a federal agency involved in community level
watershed planning and management activities. Their primary function is to provide natural resource
planning and management assistance to farmers, ranchers and forest landowners. The NRCS also
supports joint public/private watershed improvement projects with technical assistance and funding
through a number of cost-share programs intended to improve water quality, soil stability, forest
resources, flood plains, noxious weed management and wildlife habitat.
The U.S. Environmental Protection Agency (EPA) has championed the Watershed Protection
Approach (WPA) for many years. The WPA strategy is based on the concept that many water quality
and ecosystem problems are best solved at the watershed level, rather than the individual waterbody
or discharger level. The WPA is grounded in the Clean Water Act and Safe Drinking Water Act,
which contain provisions that promote aspects of watershed planning and management activities.
"As we continue to tackle our environmental challenges, it's clear that change won't come from Washington alone. It will come from Americans across the country who take steps in their own homes and their own communities to make that change happen."
16 USC 1802 - Sec. 1802. Definitions -STATUTE-As used in this chapter, unless the context otherwise requires - (1) The term 'anadromous species' means species of fish which spawn in fresh or estuarine waters of the United States and which migrate to ocean waters. (2) The term 'bycatch' means fish which are harvested in a fishery, but which are not sold or...
TITLE 16--CONSERVATION CHAPTER 56A--PACIFIC SALMON FISHING Sec. 3640. Administrative matters (a) Compensation of Commissioners and Alternate Commissioners Commissioners and Alternate Commissioners who are not State or Federal employees shall receive compensation at the daily rate of GS-18 of the General Schedule when engaged in the actual performance of duties for the United States Section or for the Commission. (b) Compensation of Panel Members and Alternate Panel Members Panel Members and Alternate Panel Members who are not State or Federal employees shall receive compensation at the daily rate of GS-16 of the General Schedule when engaged in the actual performance of duties for the United States Section or for the Commission. (c) Travel; other expenses Travel and other necessary expenses shall be paid for all United States Commissioners, Alternate Commissioners, Panel Members, Alternate Panel Members, members of the Joint Technical Committee, and members of the Advisory Committee when engaged in the actual performance of duties for the United States Section or for the Commission. (d) Individuals not considered Federal employees Except for officials of the United States Government, such individuals shall not be considered to be Federal employees while engaged in the actual performance of duties for the United States Section or for the Commission, except for the purposes of injury compensation or tort claims liability as provided in chapter 81 of title 5 and chapter 71 \1\ of title 28. --------------------------------------------------------------------------- \1\ So in original. Probably should be chapter ``171''. --------------------------------------------------------------------------- (Pub. L. 99-5, Sec. 11, Mar. 15, 1985, 99 Stat. 14.) References in Other Laws to GS-16, 17, or 18 Pay Rates References in laws to the rates of pay for GS-16, 17, or 18, or to maximum rates of pay under the General Schedule, to be considered references to rates payable under specified sections of Title 5, Government Organization and Employees, see section 529 [title I, Sec. 101(c)(1)] of Pub. L. 101-509, set out in a note under section 5376 of Title 5.
The Science and Technology Centers (STC): Integrative Partnerships program supports innovative, potentially transformative, complex research and education projects that require large-scale, long-term awards. STCs conduct world-class research through partnerships among academic institutions, national laboratories, industrial organizations, and/or other public/private entities , and via international collaborations, as appropriate. They provide a means to undertake significant investigations at the interfaces of disciplines and/or fresh approaches within disciplines. STCs may involve any areas of science and engineering that NSF supports. STC investments support the NSF vision of advancing discovery, innovation and education beyond the frontiers of current knowledge, and empowering future generations in science and engineering.
Centers provide a rich environment for encouraging future scientists, engineers, and educators to take risks in pursuing discoveries and new knowledge. STCs foster excellence in education by integrating education and research, and by creating bonds between learning and inquiry so that discovery and creativity fully support the learning process.
NSF expects STCs to demonstrate leadership in the involvement of groups traditionally underrepresented in science and engineering at all levels (faculty, students, and postdoctoral researchers) within the Center. Centers use either proven or innovative mechanisms to address issues such as recruitment, retention and mentorship of participants from underrepresented groups.
Centers must undertake activities that facilitate knowledge transfer, i.e., the exchange of scientific and technical information with the objective of disseminating and utilizing knowledge broadly in multiple sectors. Examples of knowledge transfer include technology transfer with the intention of supporting innovation, providing key information to public policy makers, or dissemination of knowledge from one field of science to another.
THIS PROGRAM IS PART OF
Opportunities that Highlight International Collaboration
Wanted by EPA: Scientists for controversial climate mission
By Ben Geman - 04/26/11 09:34 AM ET
The Environmental Protection Agency is seeking experts to help unwrap a wonky but politically charged question: How to measure the carbon footprint of using biomass for energy.
EPA in January backed off applying greenhouse gas permitting rules to power plants and other facilities that use plant matter to make energy.
EPA said it would use the three-year delay to improve methods for accounting for the carbon footprint of using various types of forest and other plant materials. On Wednesday, the agency is slated to publish a request for nominations to serve on a panel of EPA's Science Advisory Board that will weigh the matter.
Accounting for the climate change impacts of biomass energy remains an emerging science, one that wades into whether a renewable energy source is always an environmentally friendly one too.
A key question is how to track carbon released from land-use changes related to harvesting plant matter.
So . . . the solicitation to be released Wednesday says the science advisors want experts who can address topics such as “Forestry, agriculture, and land-use change, specifically the effects of land management practices on the terrestrial biosphere,” and “Land use economics, ecological relationships between land use and climate change and/or estimates of biomass supply and demand.”
EPA's view is that biomass energy is green energy — if done right. Administrator Lisa Jackson, when announcing the permitting delay in January, said, “Renewable, homegrown power sources are essential to our energy future, and an important step to cutting the pollution responsible for climate change.”
But the agency also noted at the time that burning some types of biomass “may result in a net increase in CO2 emissions.”
EPA has come under heavy pressure from the forest industry and some Capitol Hill lawmakers fearful that applying emissions rules to biomass would stymie the market for the energy source.
FEMA Faulted: The Federal Emergency Management Agency needs to significantly improve its information technology programs. In a report issued in early April, the Inspector General's Office at the Department of Homeland Security said FEMA's "existing existing information technology systems do not support disaster response activities effectively."
While FEMA has a number of information technology modernization initiatives under way, the agency lacks a comprehensive information technology strategic plan, the report notes. In addition, FEMA has not completed its efforts to document the agency's enterprise architecture.
"Without these critical elements, the agency is challenged to establish an effective approach to modernize its information technology infrastructure and systems," said Frank Deffer, assistant inspector general at DHS. FEMA spent $391 million on IT in 2010.
Ask local officials about the future of the Mohawk Valley, and they're likely to point to the Marcy NanoCenter at SUNYIT site as a sign of hope.
But the permitting process with the U.S. Army Corps of Engineers has delayed efforts to develop the site, and it continues to restrict Mohawk Valley EDGE's ability to market it to potential companies, said Steven DiMeo, president of the economic development organization.
The permitting efforts have been taking place since June 2006, and EDGE (Economic Development Growth Enterprises Corp.) has spent more than $800,000 on associated legal, engineering and planning costs, DiMeo said.
A new permit issued last week from the Army Corps' Buffalo District still won't allow EDGE to conduct development work on wetlands at the site until EDGE gets a company to commit to locating there.
DiMeo argued that it will be much more difficult to attract a company to the site without first completing the wetlands work.
“It's just crazy and absurd,” DiMeo said. “It defies common sense.”
The goal for the Marcy NanoCenter site is to attract a semiconductor manufacturing company that could transform the local economy by creating jobs and leading to supportive businesses opening.
‘No need'
A permit from the Army Corps last May included Special Condition No. 1, which prevents EDGE from doing work on wetlands on the site until an end user commits to development. EDGE objected to the special condition in July, and the Army Corps rescinded the permit in October, DiMeo said.
The new permit presented last week also restricts mitigation work and the moving of a power line that would have been allowed under the previous permit, DiMeo said.
Bruce Sanders, spokesman of the Army Corps' Buffalo District, said the organization “recognizes the current difficult economic climate and EDGE's interest in bringing new jobs to the Mohawk Valley region.”
“We are also aware of the benefit of having a signed permit in hand as a marketing tool,” Sanders said. “That is why we have exercised the maximum degree of flexibility allowed under federal regulations in twice proffering a permit to EDGE, even though they do not yet have an identified end-user tenant.”
Federal guidelines don't specifically say you have to have an end user before getting a permit to do work on wetlands, but the regulations do say that a need for the work has to be established, said Steven Metivier, chief of the Army Corps New York Applications Evaluation Section, Regulatory Branch.
If EDGE receives a permit but never gets a company to locate there, then you can't justify the necessity of the project, Metivier said.
“Without a tenant, there is no need to fill wetlands on that site,” he said.
The Marcy NanoCenter project would impact almost eight acres of wetlands, but it also would create about 13 acres of new wetlands, permanently preserve almost 24 acres of existing wetlands and involve additional environmental enhancements, according to EDGE.
‘Something similar'
To help its argument, EDGE has found three examples of times when the Army Corps issued permits without having an end user in place for projects on land where wetlands would be impacted. Such permits were awarded in 1991 in Savannah, Ga., in 2006 in Redding, Calif., and in 2007 at the local Schuyler Business Park, DiMeo said.
The project in Georgia was developing the Crossroads Business Center on a 1,784-acre park, which had more than 1,300 acres of wetlands, according to EDGE.
When the Army Corps issued the permit in 1991, there was a news conference in Washington, D.C., to celebrate the achievement, said Andrew Ernst, a Georgia attorney who served as special counsel to the Savannah Economic Development Authority for the project.
The Crossroads Business Center went on to become a major success and is still thriving today, said Ernst, who has more than 30 years of experience in environmental law, land use, commercial real estate development and industrial development.
Ernst said he isn't familiar with the details of the Marcy NanoCenter project, and each Army Corps district office is different, but the project in Georgia shows that the Army Corps has issued permits for work involving wetlands without having an end user in place.
Bridget Brown, the Army Corps project manager for the Marcy NanoCenter site, said the other projects were different — they were business parks with a goal of multiple end users. Development work conducted at the other sites also was primarily focused on infrastructure construction, she said.
“After due diligence, we concluded that those projects are not comparable to the EDGE proposal,” Sanders said.
‘Quickly as possible'
EDGE also has turned to local federal officials to ask for help on the issue, and the members of Congress say they're on the case.
U.S. Sen. Charles Schumer, D-N.Y., is trying to help forge a solution because of the impact the project could have on the Mohawk Valley economy, Schumer spokesman Matt House said.
“Sen. Schumer strongly believes that this project should be allowed to move forward as quickly as possible so that we can build a facility that will in turn attract a world-class nanotechnology tenant,” House said.
U.S. Sen. Kirsten Gillibrand, D-N.Y., also will continue working with EDGE and the Army Corps to address each side's concerns, spokesman James Rahm said.
On April 4, U.S. Rep. Richard Hanna, R-Barneveld, sent a letter to the Army Corps arguing that past precedent shows that the Army Corps can issue the permit to EDGE without the special condition. On Thursday, Hanna said in a released statement that he would stay involved with the issue.
“I fully support the Mohawk Valley EDGE and their need for a clean permit, without special conditions, so that they can begin construction on the nanotechnology center on the SUNYIT campus,” Hanna said.
A meeting is being organized among EDGE, the Army Corps and the local federal officials, according to Schumer's office.
DEPARTMENT OF DEFENSE GENERAL SERVICES ADMINISTRATION NATIONAL AERONAUTICS AND SPACE ADMINISTRATION 48 CFR Parts 4, 8, 17, 37, and 52 [FAR Case 2010-010; Docket 2010-0010, Sequence 1] RIN 9000-AM06 Federal Acquisition Regulation; Service Contracts Reporting Requirements AGENCY: Department of Defense (DoD), General Services Administration (GSA), and National Aeronautics and Space Administration (NASA). ACTION: Proposed rule. ----------------------------------------------------------------------- SUMMARY: DoD, GSA, and NASA are proposing to amend the Federal Acquisition Regulation (FAR) to implement section 743 of Division C of the Consolidated Appropriations Act, 2010. This proposed rule amends the FAR to require service contractors for executive agencies, except the Department of Defense (DoD), covered by the Federal Activities Inventory Reform (FAIR) Act of 1998, to submit information annually in support of agency-level inventories for service contracts.
Community involvement is the process of engaging in dialogue and collaboration with community members.
The goal of Superfund community involvement is to advocate and strengthen early and meaningful community participation during Superfund cleanups. Superfund community involvement staffs at Headquarters and in the Regions strive to:
Encourage and enable community members to get involved.
Listen carefully to what the community is saying.
Take the time needed to deal with community concerns.
Change planned actions where community comments or concerns have merit.
Keep the community well informed of ongoing and planned activities.
Explain to the community what EPA has done and why.
There are several steps involved in cleaning up a Superfund site. This section contains an interactive graphic of the Superfund cleanup process. You can click on each step in the graphic to learn more about that phase of the process.
This section provides information about a variety of technical assistance and training resources provided by EPA. These resources help communities fully participate in decisions at local Superfund sites. In addition, links to related are provided to EPA and other programs that also can be useful to communities with Superfund sites.
This section contains EPA publications for community members at Superfund sites. These publications include information about how EPA determines the risk at a site, how to get detailed reports about the site in your area, and how EPA supports reuse of sites after they have been cleaned up.
Environmental Justice is the fair treatment and meaningful involvement of all people regardless of race, color, national origin, or income with respect to the development, implementation, and enforcement of environmental laws, regulations, and policies.
There are over 3.5 million miles of rivers and streams in the U.S., covering an enormous and diverse landscape. Not surprisingly, the condition of the nation's streams and rivers varies widely. Cities and town, farmlands, mines, factories, sewage treatment facilities, dams, and many human activities on the land have significant impacts on the quality of our flowing waters. Understanding the condition of rivers and streams is critical if we are to develop effective plans to maintain, manage, and restore them.
U.S. Congressman Paul Gosar, DDS (AZ-01) and 170 Members of Congress sent a bipartisan letter to the Environmental Protection Agency (EPA) and the Army Corps of Engineers to express their concerns that the agencies are circumventing proper procedure and pushing through a dramatic expansion of their powers by using the Clean Water Act.
In December 2010, EPA and the Corps sent draft “Clean Water Protection Guidance” to the Office of Management and Budget for regulatory review. By the agencies' own admission, this “Guidance” will substantively change federal policy with respect to which waters fall under the jurisdiction of the Clean Water Act (CWA) and significantly increase the scope of the federal government's power to regulate waters.
“This is just another example of the Environmental Protection Agency's attempt to circumvent Congress and develop rules and regulations that far exceed the authority granted to the agency under existing public law,” said Gosar. “In addition, these rules and regulations are being developed without transparency and with little consideration for the negative impacts they may impose on our local economies.”
CGI Initiative for Collaborative Government Launches New Executive Journal, Leadership
Inaugural issue focuses on “Government's Sustainability Moment,” with insights by senior government officials from GSA, NRC, NOAA, and DHS
The CGI Initiative for Collaborative Government , a joint public policy project of CGI with leading academic institutions, announces the launch of a new executive journal, Leadership , which gives voice to government executives who are creatively and effectively addressing the most critical issues facing government.
In observance of Earth Day, the inaugural issue on “Government's Sustainability Moment” examines how green government activities promote sustainability, reduce costs, and transform government operations. Senior government officials featured are:
the General Services Administration's Martha Johnson and Robert Peck
the Nuclear Regulatory Commission's Gregory Jaczko and William Borchardt
the National Oceanic and Atmospheric Administration's Mary Glackin and Joseph Klimavicz
the Department of Homeland Security's Richard Spires
Each Leadership issue will be led by a CGI Initiative Fellow and will include in-depth analysis and perspectives on a theme challenging leaders. Molly O'Neill, a CGI Initiative Fellow and former Assistant Administrator and Chief Information Officer at the Environmental Protection Agency, provides analysis in the inaugural issue which identifies opportunities for creating a new normal in government that is driven by the push to go green.
Together with Leadership's debut, the CGI Initiative re-launched its website, collaborativegov.org, with a new design that showcases the ideas and best practices of its Fellows, partners, and government officials. Each issue of Leadership will be available on the Initiative's website as well as in print.
Government leader quotes from CGI Initiative's Leadership journal:
“Zero environmental footprint is this generation's moon shot. It's a serious business. It's serious in terms of the economy; it's serious in terms of the environment; and GSA is in the middle of that.” -- Martha Johnson, Administrator, GSA
“We're putting ourselves out there as a green proving ground. We have this imperative to green our buildings, and one of the things we can bargain with is to use our money to be a green test ground for the private sector industry. We think we can test out things, like how well solar arrays work.” -- Robert Peck, Commissioner, Public Buildings Service, GSA
“Given the controversies over nuclear power, it's really incumbent upon us to be an open and transparent agency. That's a legacy that this agency has had for a long time, and it's certainly been something that's been important to me personally.” -- Gregory Jaczko, Chairman, NRC
“We're not a perfectly flat organization, but we try to operate with a flat mentality, with a lot of information sharing and no bureaucratic barriers.” -- William Borchardt, Executive Director of Operations, NRC
“Our mission is fabulous: saving lives and property, and really making sure these treasures of resources are able to be used today and into the future.” -- Mary Glackin, Deputy Under Secretary for Operations, NOAA
“The public counts on NOAA to deliver relevant, accurate and timely data.” -- Joseph Klimavicz, Chief Information Officer, NOAA
“We're trying to reduce both the number of data centers and take advantage of state of the art capabilities to reduce energy consumption.” -- Richard Spires, Chief Information Officer, DHS
Quotes Attributable to Molly O'Neill, CGI Initiative Fellow and former Assistant Administrator and Chief Information Officer, Environmental Protection Agency:
“Just as President Obama declared that the U.S. faces a ‘Sputnik moment,' the federal government faces a ‘sustainability moment'—a crossroad in how aggressively to move forward with green government initiatives.”
“Achieving environmental sustainability goals will transform the operations of government.”
Quote Attributable to Andrew McLauchlin, Executive Director, CGI Initiative for Collaborative Government:
“The CGI Initiative for Collaborative Government gathers and shares best practices and models that help agencies achieve mission results. Our new Leadership journal focuses on themes that challenge leaders in every organization, providing practical insights that are applicable across government, private, and nonprofit sectors.”
Links:
CGI Initiative for Collaborative Government: collaborativegov.org
About the CGI Initiative for Collaborative Government
The CGI Initiative for Collaborative Government is a joint public policy project of CGI in partnership with leading academic institutions. Launched in January 2008, the initiative's mission is to analyze models of government's collaboration with the private and nonprofit sectors in order to identify best practices in using collaboration to achieve mission results.
Mara Sheldon
Director, U.S. Media Relations
(703) 267-8402
mara.sheldon(at)collaborativegov(dot)org
CGI Awarded Five-Year, $US46 Million BPA by U.S. General Services Administration
Multi-Vendor BPA Supports Core Component of President's Open Government Directive
“Data.gov is this Administration's flagship program for Open Government and provides unprecedented public access to government data,” said George Schindler, President of CGI Federal. Fairfax, Virginia (Vocus) September 30, 2010
The U.S. General Services Administration (GSA) Office of Government-wide Policy has awarded CGI Federal Inc. (CGI), a wholly-owned U.S. operating subsidiary of CGI Group Inc. (NYSE: GIB; TSX: GIB.A) a five-year blanket purchase agreement (BPA) with a ceiling of up to US$46 million to provide dataset hosting and other information technology services for the Data.gov Web site.
Developed by the Federal CIO Council as part of the Open Government Initiative, Data.gov increases the ability of the public to easily find, download, and use data published by Federal Government agencies. It serves as a central access point for citizens to view, conduct research and analyze federal government data from more than 272,000 datasets supplied by 135 federal agencies. The datasets include a wide range of collected information, including statistics related to public education, health, and geospatial mapping. Under the Data.gov Dataset Hosting Services BPA, CGI will provide hosting services for this important government information, as well as, technology tools for dataset analysis, and professional services.
“Data.gov is this Administration's flagship program for Open Government and provides unprecedented public access to government data,” said George Schindler, President of CGI Federal. “CGI has more than 30 years of experience assisting the U.S. government in harnessing the power of technology to serve our nation's citizens. We are proud to bring our government-wide expertise to advance our long-term partnership with GSA and their commitment to government transparency and collaboration.”
About CGI Federal Inc.
CGI Federal Inc. is a wholly-owned U.S. operating subsidiary of CGI Group Inc., dedicated to partnering with federal agencies to provide solutions for defense, civilian, and intelligence missions. Founded in 1976, CGI Group Inc. is one of the largest independent information technology and business process services firms in the world. CGI and its affiliated companies employ approximately 31,000 professionals. CGI provides end-to-end IT and business process services to clients worldwide from offices and centers of excellence in the United States, Canada, Europe and Asia Pacific. CGI's order backlog is approximately C$13.6 billion and its annualized revenue is approximately C$4.5 billion. CGI shares are listed on the NYSE (GIB) and the TSX (GIB.A) and are included in both, the Dow Jones Sustainability Index and the FTSE4Good Index. Website: http://www.cgi.com .
Forward- Looking Statements
All statements in this press release that do not directly and exclusively relate to historical facts constitute “forward-looking statements” within the meaning of that term in Section 27A of the United States Securities Act of 1933, as amended, and Section 21E of the United States Securities Exchange Act of 1934, as amended, and are “forward-looking information” within the meaning of Canadian securities laws. These statements and this information represent CGI's intentions, plans, expectations and beliefs, and are subject to risks, uncertainties and other factors, of which many are beyond the control of the Company. These factors could cause actual results to differ materially from such forward-looking statements or forward-looking information. These factors include but are not restricted to: the timing and size of new contracts; acquisitions and other corporate developments; the ability to attract and retain qualified members; market competition in the rapidly evolving IT industry; general economic and business conditions; foreign exchange and other risks identified in the press release, in CGI's Annual Report on Form 40-F filed with the U.S. Securities and Exchange Commission (filed on EDGAR at http://www.sec.gov ), the Company's Annual Information Form filed with the Canadian securities authorities (filed on SEDAR at http://www.sedar.com ), as well as assumptions regarding the foregoing. The words “believe,” “estimate,” “expect,” “intend,” “anticipate,” “foresee,” “plan,” and similar expressions and variations thereof, identify certain of such forward-looking statements or forward-looking information, which speak only as of the date on which they are made. In particular, statements relating to future performance are forward-looking statements and forward-looking information. CGI disclaims any intention or obligation to publicly update or revise any forward-looking statements or forward-looking information, whether as a result of new information, future events or otherwise, except as required by applicable law. Readers are cautioned not to place undue reliance on these forward-looking statements or on this forward-looking information. You will find more information about the risks that could cause our actual results to differ significantly from our current expectations in the Risks and Uncertainties section.
For more information:
Investors
Lorne Gorber
Vice-President, Global Communications and Investor Relations
lorne(dot)gorber(at)cgi(dot)com
514 841-3355
Media
Linda Odorisio
Vice-President, US Communications
linda(dot)odorisio(at)cgi(dot)com
703 267-8118
WASHINGTON (April 18, 2011) – A bipartisan group of 170 members of Congress, led by Bob Gibbs (R-Ohio) and Tim Holden (D-Pa.), issued a letter to Environmental Protection Agency (EPA) Administrator Lisa Jackson and Assistant Secretary of the Army for Civil Works (Corps) Jo-Ellen Darcy to express concern regarding an attempt by the agencies to expand their jurisdiction over U.S. waters. Specifically, EPA and the Corps sent a draft “guidance” document to the Office of Management and Budget (OMB) for regulatory review to identify waters subject to jurisdiction under the Federal Water Pollution Control Act of 1972, more commonly known as the Clean Water Act (CWA). The members of Congress agree that the “guidance” goes beyond clarifying the scope of U.S. waters subject to Clean Water Act programs. National Cattlemen's Beef Association (NCBA) Deputy Environmental Counsel Ashley Lyon said EPA is continuing business as usual, but Congress is pushing back.
“We are grateful for the efforts of 170 members of the U.S. House of Representatives to hold these agencies accountable,” said Lyon. “If EPA has its way, government overreach will continue to financially devastate farmers and ranchers across the country. Giving EPA the go-ahead to regulate every little drop of water in the United States is absurd.”
After the Supreme Court limited jurisdiction of waters in the CWA in two court cases, the Clean Water Restoration Act (CWRA) was introduced in the House by former Congressman James Oberstar (D-Minn.) and in the Senate by former Senator Russ Feingold (D-Wis.). Those bills would have removed the word “navigable” from the definition of “waters of the United States,” which would have given EPA and the Corps virtually limitless jurisdiction over every kind of water whether it was a puddle, ditch, mudflat or otherwise, according to Lyon. She said EPA's best bet for greater control is a “guidance” document, but Congress is holding the agencies accountable to their statutory authority.
“The agencies cannot, through ‘guidance,' change the scope and meaning of the Clean Water Act or the statutes implementing regulations,” the members of Congress penned. “If the administration seeks statutory changes to the Clean Water Act, a proposal must be submitted to Congress for legislative action. If the administration seeks to make regulatory changes, a notice and comment rulemaking in required. We are very concerned by the action contemplated by the agencies…”
The Directorate for Engineering at the National Science Foundation has established the Office of Emerging Frontiers in Research and Innovation (EFRI) to serve a critical role in focusing on important emerging areas in a timely manner. The EFRI Office is launching a new funding opportunity for interdisciplinary teams of researchers to embark on rapidly advancing frontiers of fundamental engineering research. For this solicitation, we will consider proposals that aim to investigate emerging frontiers in the following two specific research areas: (1) Engineering New Technologies Based on Multicellular and Inter-kingdom Signaling (MIKS), and (2) Mind, Machines, and Motor Control (M3C). This solicitation will be coordinated with NSF Directorates listed above. EFRI seeks proposals with transformative ideas that represent an opportunity for a significant shift in fundamental engineering knowledge with a strong potential for long term impact on national needs or a grand challenge. The proposals must also meet the detailed requirements delineated in this solicitation.
The synopsis for this grant opportunity is detailed below, following this paragraph. This synopsis contains all of the updates to this document that have been posted as of 07/14/2009 . If updates have been made to the opportunity synopsis, update information is provided below the synopsis.
If you would like to receive notifications of changes to the grant opportunity click send me change notification emails . The only thing you need to provide for this service is your email address. No other information is requested.
Any inconsistency between the original printed document and the disk or electronic document shall be resolved by giving precedence to the printed document.
Document Type:
Modification to Previous Grants Notice
Funding Opportunity Number:
PD-09-6884
Opportunity Category:
Discretionary
Posted Date:
Jul 14, 2009
Creation Date:
Apr 05, 2011
Original Closing Date for Applications:
Nov 30, 2010 July 01, 2010 - August 02, 2010 CHE Submission Window November 01, 2010 - November 30, 2010 CHE Submission Window
Current Closing Date for Applications:
Jul 31, 2011 Submission Window Date(s) (due by 5 p.m. proposer's local time): July 1 - July 31, Annually CHE Submission Window November 1 - November 30, Annually CHE Submission Window
Archive Date:
Funding Instrument Type:
Grant
Category of Funding Activity:
Science and Technology and other Research and Development
Category Explanation:
Expected Number of Awards:
50
Estimated Total Program Funding:
$0
Award Ceiling:
Award Floor:
CFDA Number(s):
47.049 -- Mathematical and Physical Sciences
Cost Sharing or Matching Requirement:
No
Eligible Applicants
Unrestricted (i.e., open to any type of entity above), subject to any clarification in text field entitled "Additional Information on Eligibility"
Additional Information on Eligibility:
Agency Name
National Science Foundation
Description
The Chemical Catalysis Program supports experimental and theoretical research directed towards the fundamental understanding of the chemistry of catalytic processes at the molecular level. The Program accepts proposals on catalytic approaches which facilitate, direct, and accelerate efficient chemical transformations. This includes the design and synthesis of catalytic and pre-catalytic species on the molecular, supramolecular, and nanometer scales; and studies of the dynamics of homogeneous and heterogeneous catalytic processes. Processes of interest include (but are not limited to) polymerization catalysis, single site catalysis, asymmetric catalysis, and biologically-inspired catalysis. Applications of modeling, theory, and simulation to catalytic processes are also relevant. Submissions that advance chemical catalysis and address national needs for sustainability are of particular interest. These include fundamental studies of energy-related catalytic processes, CO2 conversion, electrocatalysis (such as in water splitting and fuel cells), photocatalysis (such as in solar energy conversion), catalytic conversions of fossil fuels and biomass, and environmentally-friendly chemical processes.The Program does not support applied catalysis research that focuses on scale-up, processing, transport dynamics, long-term stability and other engineering aspects of catalysis. The Program also does not support biocatalysis research with purely biological enzymes and cellular systems.
The following files represent the modifications to this synopsis with the changes noted within the documents. The list of files is arranged from newest to oldest with the newest file representing the current synopsis. Changed sections from the previous document are shown in a light grey background.
S.186 -- Safe and Responsible Redeployment of United States Combat Forces from Afghanistan Act of 2011 (Introduced in Senate - IS)
S 186 IS
112th CONGRESS 1st Session
S. 186
To provide for the safe and responsible redeployment of United States combat forces from Afghanistan.
IN THE SENATE OF THE UNITED STATES
January 25 (legislative day, January 5), 2011
Mrs. BOXER (for herself, Mr. DURBIN, Mrs. GILLIBRAND, and Mr. BROWN of Ohio) introduced the following bill; which was read twice and referred to the Committee on Foreign Relations
A BILL
To provide for the safe and responsible redeployment of United States combat forces from Afghanistan.
Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the `Safe and Responsible Redeployment of United States Combat Forces from Afghanistan Act of 2011'.
SEC. 2. FINDINGS.
Congress makes the following findings:
(1) October 7, 2011, will mark the 10-year anniversary of the start of Operation Enduring Freedom in Afghanistan.
(2) Members of the United States Armed Forces and coalition forces have served valiantly and at great personal sacrifice in support of Operation Enduring Freedom.
(3) As of January 25, 2011, 1,457 American military personnel have lost their lives in support of Operation Enduring Freedom and 10,226 have been wounded.
(4) As of January 20, 2011, United States taxpayers have spent an estimated $336,000,000,000 for operations in Afghanistan.
(5) During a speech at the United States Military Academy at West Point on December 1, 2009, President Barack Obama outlined a detailed plan to allow the United States `to begin the transfer of our forces out of Afghanistan in July of 2011'.
(6) President Obama also stated, `It must be clear that Afghans will have to take responsibility for their security, and that America has no interest in fighting an endless war in Afghanistan.'
(7) It is essential to begin turning responsibility for security in Afghanistan over to the Government and people of Afghanistan.
SEC. 3. STATEMENT OF POLICY ON PHASED REDEPLOYMENT OF UNITED STATES COMBAT FORCES FROM AFGHANISTAN.
It is the policy of the United States to begin the phased redeployment of United States combat forces from Afghanistan not later than July 1, 2011.
SEC. 4. PLAN FOR COMPLETION OF PHASED REDEPLOYMENT OF COMBAT FORCES.
Not later than July 31, 2011, the President shall submit to Congress a plan for the phased redeployment of United States combat forces from Afghanistan, to include an end date for the completion of that redeployment.
Cuts Upfront Patent Licensing Costs and Challenges entrepreneurs to Commercialize Technologies from the National Laboratories
Boston, MA - As part of the Obama Administration's Startup America Initiative , U.S. Energy Secretary Steven Chu today announced the "America's Next Top Energy Innovator" challenge, which will give start-up companies the opportunity to license groundbreaking technologies developed by the National Laboratories for $1,000 and build successful businesses. As part of this effort, the Department is reducing both the cost and paperwork requirements for start-up companies to obtain an option agreement to license some of the 15,000 patents and patent applications held by our 17 National Laboratories.
"America's entrepreneurs and innovators are the best in the world," said Secretary Chu. "Today, we're challenging them to create new businesses based on discoveries made by our world-leading national laboratories. Because we've cut the upfront fees and reduced the paperwork, we'll make it easier for start-up companies to succeed and create the new jobs our economy needs. Our goal is simple: unleash America's innovation machine and win the global race for the clean energy jobs of the future."
Currently, only about 10 percent of federal patents have been licensed to be commercialized. This initiative aims to double the number of startup companies coming out of the National Laboratories.
Specifically, as part of "America's Next Top Energy Innovator:"
On Monday, May 2, 2011, the Department will kick off the challenge by posting a streamlined template option agreement online for entrepreneurs to submit to Laboratories. Entrepreneurs must identify the technology of interest and submit a business plan to be considered for the program. Participants will have until December 15 to make their submission to the Laboratory.
Any of the 15,000 unlicensed patents and patent applications held by the National Laboratories will be available for licensing by startup companies
From May 2 to December 15, the Department will reduce the total upfront cost of licensing DOE patents in a specific technology to a $1,000 upfront fee for portfolios of up to three patents. This represents a savings of $10,000 to $50,000 on average in upfront fees.
Other license terms, such as equity and royalties, will be negotiated on a case by case basis and will typically be due once the company grows and achieves widescale commercial success. These fees help support the Department's continuing research activities to develop new technologies.
The Department will simplify the licensing process and establish a standard set of terms for start-ups, who generally lack the resources, time or expertise to negotiate individual licensing agreements. This will significantly reduce both the time and cost required to process the license, allowing faster access to the Department's patents and enabling the Department to process more licenses in a shorter amount of time.
Entrepreneurs who complete the process and demonstrate progress toward executing their business plan and commercializing the technology will have the opportunity to be showcased at the 3rd Annual ARPA-E Energy Innovation Summit in 2012, which brings together leading technology startups and clean energy investors from around the country.
In addition to these steps, the Department is making it easier for companies to use the world-leading facilities at our National Laboratories to conduct collaborative research and development activities. Previously, companies had to make an upfront payment covering the first 90 days of research work - a requirement that was often difficult for start-ups to meet. Today, the Department is lowering the advance payment requirement to 60 days. This change will benefit all companies - not just start-ups - but could be valuable for those participating in the "America's Next Top Energy Innovator" challenge.
Entrepreneurs interested in participating can already view the available technologies on the Department's Energy Innovation Portal .
Some of the promising innovations currently available for licensing and featured on the portal include:
Solar Energy Storage, Transportation and Conversion - available from DOE's Lawrence Berkeley National Laboratory
Researchers at Berkeley Lab have developed a system for converting solar energy to chemical energy and, subsequently, to thermal energy. The system includes a light-harvesting station, a storage station, and a thermal energy release station that enables transportation of stored energy over long distances. Marketing Summary
Grid Friendly Appliance Controller - available from DOE's Pacific Northwest National Laboratory
The Grid Friendly Appliance controller senses grid conditions by monitoring system frequency and provides automatic demand response in times of disruption. This simple computer chip can be installed in household appliances and can turn them off for a few minutes or even a few seconds to allow the grid to stabilize and prevent blackouts. Marketing Summary
Growth of Lattice Matched III-V Semiconductor Materials - available from DOE's National Renewable Energy Laboratory
High-performance semiconductor materials have a broad range of potential applications, including high efficiency solar cells, solid-state lighting, and high-speed transistors. This portfolio allows for the use of low-cost, scalable, and reusable substrates to dramatically reduce production costs for these materials. Marketing Summary
New Catalyst Can Reduce Nitrogen Oxide Emissions From Diesel Engines by 80-85% - available from DOE's Argonne National Laboratory
The diesel DeNOx catalyst removes 80-85% of nitrogen oxide (NOx) emissions from diesel fuel combustion by converting NOx to nitrogen. With its lower expected manufacturing and installation costs, ease of use, and significant market potential, the Argonne catalyst is positioned to deliver the environmental-and economical-benefits needed to reduce our global industrial "footprint." Marketing Summary
Read some recent examples (pdf - 162 kb) of established companies and start-ups that have commercialized Department of Energy technologies.
1. H.R.242 : To clarify the implementation and enforcement of Subpart B of the Travel Management Rule (36 C.F.R. 212), relating to the designation of roads, trails, and areas for motor vehicle use, in administrative units of the National Forest System in California, and for other purposes.
Sponsor: Rep Herger, Wally [CA-2] (introduced 1/7/2011) Cosponsors (3)
Committees: House Natural Resources
Latest Major Action: 1/26/2011 Referred to House subcommittee. Status: Referred to the Subcommittee on National Parks, Forests and Public Lands.
2. H.R.397 : Reform Americans Can Afford Act of 2011
Sponsor: Rep Herger, Wally [CA-2] (introduced 1/24/2011) Cosponsors (16)
Committees: House Energy and Commerce; House Ways and Means; House Education and the Workforce; House Judiciary; House Administration; House Natural Resources; House Appropriations; House Rules
Latest Major Action: 2/9/2011 Referred to House subcommittee. Status: Referred to the Subcommittee on Health.
3. H.R.674 : To amend the Internal Revenue Code of 1986 to repeal the imposition of 3 percent withholding on certain payments made to vendors by government entities.
Sponsor: Rep Herger, Wally [CA-2] (introduced 2/11/2011) Cosponsors (75)
Committees: House Ways and Means
Latest Major Action: 2/11/2011 Referred to House committee. Status: Referred to the House Committee on Ways and Means.
4. H.R.675 : Strengthening Medicare Anti-Fraud Measures Act of 2011
Sponsor: Rep Herger, Wally [CA-2] (introduced 2/11/2011) Cosponsors (25)
Committees: House Energy and Commerce; House Ways and Means; House Budget
Latest Major Action: 2/18/2011 Referred to House subcommittee. Status: Referred to the Subcommittee on Health.
5. H.R.817 : To amend the Antiquities Act of 1906 to place additional requirements on the establishment of national monuments under that Act, and for other purposes.
Sponsor: Rep Herger, Wally [CA-2] (introduced 2/18/2011) Cosponsors (9)
Committees: House Natural Resources
Latest Major Action: 2/24/2011 Referred to House subcommittee. Status: Referred to the Subcommittee on National Parks, Forests and Public Lands.
6. H.R.880 : Equity for Our Nation's Self-Employed Act of 2011
Sponsor: Rep Herger, Wally [CA-2] (introduced 3/2/2011) Cosponsors (12)
Committees: House Ways and Means
Latest Major Action: 3/2/2011 Referred to House committee. Status: Referred to the House Committee on Ways and Means.
7. H.R.1183 : Suzanne Gonzales Suicide Prevention Act of 2011
Sponsor: Rep Herger, Wally [CA-2] (introduced 3/17/2011) Cosponsors (2)
Committees: House Judiciary
Latest Major Action: 3/17/2011 Referred to House committee. Status: Referred to the House Committee on the Judiciary.
8. H.R.1237 : To provide for a land exchange with the Trinity Public Utilities District of Trinity County, California, involving the transfer of land to the Bureau of Land Management and the Six Rivers National Forest in exchange for National Forest System land in the Shasta-Trinity National Forest, and for other purposes.
Sponsor: Rep Herger, Wally [CA-2] (introduced 3/29/2011) Cosponsors (None)
Committees: House Natural Resources
Latest Major Action: 3/31/2011 Referred to House subcommittee. Status: Referred to the Subcommittee on National Parks, Forests and Public Lands.
9. H.R.1267 : To amend the Internal Revenue Code of 1986 to modify the application of the tonnage tax on certain vessels.
Sponsor: Rep Herger, Wally [CA-2] (introduced 3/30/2011) Cosponsors (3)
Committees: House Ways and Means
Latest Major Action: 3/30/2011 Referred to House committee. Status: Referred to the House Committee on Ways and Means.
10. H.R.1485 : Catastrophic Wildfire Community Protection Act
Sponsor: Rep Herger, Wally [CA-2] (introduced 4/12/2011) Cosponsors (10)
Committees: House Agriculture; House Natural Resources
Latest Major Action: 4/12/2011 Referred to House committee. Status: Referred to the Committee on Agriculture, and in addition to the Committee on Natural Resources, for a period to be subsequently determined by the Speaker, in each case for consideration of such provisions as fall within the jurisdiction of the committee concerned.
San Francisco Bay-Delta Estuary: Advanced Notice of Proposed Rulemaking for Water Quality Issues in the San Francisco Bay/Sacramento-San Joaquin Delta Estuary
The U.S. Environmental Protection Agency (EPA) is publishing an advance notice of proposed rulemaking (ANPR) to seek comments from interested parties on possible EPA actions to address water quality conditions affecting aquatic resources in the San Francisco Bay/Sacramento-San Joaquin Delta Estuary (Bay Delta Estuary) in California. EPA is asking the public to consider broadly whether EPA should be taking new or different actions under its programs to address recent significant declines in multiple aquatic species in the Bay Delta Estuary. EPA is not limiting its request to actions that would require rulemaking. There may be a range of changes in EPA‘s activities in the Bay Delta Estuary that would be constructive, including enforcement, research, revisions to water quality standards, etc. EPA will consider all comments before deciding what changes, if any, should be pursued. After reviewing the comments and completing its evaluation, EPA will provide the results of its review and any proposed next steps to the public. This ANPR identifies specific issues on which EPA solicits comment, including potential site-specific water quality standards and site-specific changes to pesticide regulation. In addition to the specific issues on which EPA solicits comments, EPA is interested in comments on any other aspects of EPA‘s programs affecting Bay Delta Estuary aquatic resources.
This ANPR has no regulatory impact or effect. The ANPR contains descriptions of certain EPA programs relevant to the Bay Delta Estuary and poses questions about how these programs could better protect and improve water quality for the benefit of aquatic resources in the Bay Delta Estuary. This ANPR marks the beginning of a process to consider possible changes to EPA programs in the Bay Delta Estuary.
The continuing budget situation is a matter of obvious concern for everyone at the EPA and all of our colleagues in Federal government. My first priority is to provide you with as much information as possible to ensure you are fully aware of ongoing efforts, and fully informed on how any decisions may affect you, and our mission to protect the health and the environment of the American people.
Throughout the discussions about funding for the rest of the fiscal year, the President has made it clear that he wants to avoid a government shutdown. In the face of tough choices, the goal has always been to maintain core services and ensure that the important work done by the EPA and other Federal agencies continues uninterrupted. That is why the Administration has been working day and night to find a solution on which all sides can agree — work that continues today. Given the realities of the calendar, however, prudent management requires that we plan for an orderly shutdown should Congress be unable to pass a funding bill by Friday of this week.
The President and I know that the uncertainty of the current situation puts federal employees in a difficult position. We are very much aware that a shutdown would impose hardships on many employees as well as the groups and individuals our agency serves. I have pledged to keep you informed throughout this process, and as we approach the expiration of the current Continuing Resolution, we will provide you with updated information as soon as it becomes available. For now, I want to provide you with basic information on how the potential shutdown — should it occur — will impact Federal employees.
As soon as funding lapses, Federal departments and agencies will not be permitted to perform activities funded by annual appropriations, except those activities related to the orderly suspension of operations or performance of excepted activities. This means that some employees will be furloughed and unable to work, and our contingency planning for the potential funding lapse includes determining which agency functions are excepted from a furlough. Should it become necessary to implement contingency plans, you will receive formal notice from your manager no later than Friday April 8th about your furlough status.
The Office of Personnel Management (OPM) has created a document to address some of the questions that I know must be on your mind. The document can be accessed at http://www.opm.gov/furlough2011. OPM will provide additional information for federal employees as the week progresses, and we'll continue to do our best to provide clear information about the status of events as the week progresses.
It is through your hard work and dedication that the EPA is able to safeguard the health and the environment of millions of Americans. Your contributions touch people's lives in significant ways, and I am deeply appreciative of everything that you do. Thank you for your continued service to the EPA and the nation.
An often-overlooked renewable energy source is gaining momentum as lawmakers on Capitol Hill struggle to find consensus in an increasingly partisan environment and the Obama administration is looking to decrease reliance on foreign oil.
A trio of hydropower measures is moving rapidly through the Senate, at least two federal agencies are taking a hard look at hydropower potential, and the Obama administration is beefing up its investment in hydropower technologies with the Interior and Energy departments yesterday announcing $26.6 million in funding for hydropower research and development projects.
"The time is ripe to expand the country's hydropower capacity," said Andrew Munro, president of the National Hydropower Association, during he industry's annual meeting this week in Washington, D.C.
Perhaps the biggest movement on the hydropower front in recent weeks is the rapid advancement in the Senate of several bipartisan hydropower measures. Just weeks after introduction, two bipartisan hydropower measures ( S. 629 (pdf) and S. 630 (pdf)) from Senate Energy and Natural Resources ranking member Lisa Murkowski (R-Alaska) may be some of the first legislation the committee takes up this year.
"I'm expecting that we will move quickly to report out these measures," Murkowski said yesterday during remarks at the hydropower conference.
The committee has already held a hearing on the two measures that would advance hydropower project deployment by requiring better interagency coordination, funding competitive grants for increased production and investing in more research and development, and promote development of marine and hydrokinetic energy resources by promoting research, testing and certification of the new technologies. The committee also heard testimony on the energy and water portions of the 2009 energy bill ( S. 1462 (pdf)) that was reported out of committee on a bipartisan vote.
And Chairman Jeff Bingaman (D-N.M.) has indicated bipartisan measures, like the two Murkowski bills and the S. 1462 language, could be among the first measures the committee marks up in the next two weeks.
"We're anxious to find solutions to energy problems," Bingaman said last week. "I think we'll have good support for practical solutions, maybe not on everything but a lot of things."
Murkowski said she and Bingaman yesterday were slated to hash out a committee markup schedule for the next two months.
"My hope is that both of these measures make it through the process in this next month," she said.
Murkowski's measures already enjoy broad bipartisan support both on and off the committee, and it is little surprise as hydropower has a much broader regional distribution than other renewable energy sources.
Utilizing existing dams
A new Oak Ridge National Laboratory study released yesterday found that by adding power-generation equipment to existing dams, the United States could generate more than 12 gigawatts of electricity. A sizeable portion of that new generation capacity -- 3,000 megawatts -- could be sourced from 10 large dams in the South, Midwest and Rust Belt.
And an Interior Department study released last week showed that the agency could generate up to 1 million megawatt-hours of electricity each year by adding hydropower capacity to some of its existing structures, like dams, canals and divergent structures, in 14 Western states.
Hydropower has been criticized by conservationists for the heavy environmental footprint associated with dam construction and stream divergence. But hydropower proponents say increasing generation at existing structures would be a low-impact way to boost the nation's renewable energy portfolio.
"Adding hydropower capability at existing [Bureau of Reclamation] facilities is a cost-effective and environmentally sustainable way to build our clean energy economy," said Assistant Secretary for Water and Science Anne Castle. "We can increase our renewable hydropower output without building new dams" ( E&E Daily , April 1).
Indeed, the Oak Ridge study found that 3 percent of the nation's 80,000 dams currently generate electricity.
Copyright 2011 E&E Publishing. All Rights Reserved.
The Federal Government Found Liable Under CERCLA as a Result of its Oversight of Federal Mining Leases
3.22.11 On March 4, 2011, in Nu-West Mining Inc. v. United States , the district court for the District of Idaho determined that the United States' oversight of waste disposal activities at historic mines on federal lands was sufficient to render it liable as an operator and arranger under the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA). Owner liability was undisputed. The plaintiffs, Nu-West Mining Inc. and Nu-West Industries Inc. (Nu-West), are the current holders of the government leases under which four mines were operated from the 1960s to the 1990s. In the 1990s, after selenium contamination was discovered at the sites, Nu-West entered into consent orders with the United States to clean up the sites. To date, Nu-West claims to have spent $10 million to clean up the sites. The selenium contamination resulted from the use of middle waste shale—a layer of rock rich in selenium which lies between economically valuable (phosphate ore-bearing) strata—as a cover over waste rock piles. As part of its oversight of the commercial development of the federal mining leases, the United States allowed waste disposal activities on adjacent federal lands and required lessees to build waste rock piles with covers consisting of middle waste shale. In applying the Supreme Court's standard in Burlington Northern and Santa Fe Ry. Co. v. United States , the court focused on the United States' intent that the waste disposal activities occur. At the time of the disposal, neither the United States nor the lessees knew that the middle waste shale would leach selenium. Although the court did not address that fact, it was the use of middle waste shale as a cover for waste rock piles—required by the United States as a condition of mining approval—which ultimately resulted in the release of a hazardous substance. In this case, the court relied on the government's own documents, which established that the government was directly and extensively involved in the design and location of the waste rock piles and the fact that the government retained its ownership interest over all of its property rights in the mine sites except those conveyed in the mineral leases (i.e., the right to mine for phosphate, phosphate rock, and related minerals). The court flatly rejected the government's argument that it could not be liable under CERCLA for acting in what it characterized as a purely regulatory role. Because many projects on federal land will entail retained federal ownership of the land and similar oversight and control over waste disposal activities, the outcome of this case may be of great utility if the court allocates any significant portion of cleanup costs to the United States in subsequent proceedings. Neither the issue of the effectiveness of any defenses that may be asserted by the United States nor whether the action was properly brought under §107 (see Jason A. Flower, The Assault on §107 Cost Recovery Claims , Environmental Law 360, Sept. 24, 2010) were addressed in this partial summary judgment proceeding. It is unclear what defenses (other than the regulatory action defense rejected in this proceeding), if any, the government may raise. Statutory defenses such as act of God or act of war are not relevant and the third party act or omission defense would be precluded by the contractual relationship and the government's extensive involvement in designing waste rock pile structure and location. Other transactional defenses (secured creditor, innocent landowner, bona fide prospective purchaser, and contiguous property owner) also are inapplicable as the government owned the land and was involved in the waste disposal activities which caused the selenium releases. If equitable defenses are raised, they are more likely to be considered in apportioning costs. What This Means to You The potential importance of this case is not limited to mining operations. If you are under a federal cleanup order for waste disposal activities on federal land, you may be able to shift some of that expense back to the federal government. We will track this case to see how the court rules on any defenses raised by the government, whether any recovery may be had, and how it apportions costs. In addition, this case may also be important for other private parties who conducted activities on federal lands where those activities were subject to close federal oversight and approval as arranger liability can be premised on similar oversight. Contact Info If you would like to discuss potential remedies available in your situation, please contact Coty Hopinks-Baul at 314.480.1883, Charles Merrill at 314.480.1952, or any members of Husch Blackwell's Environmental and Natural Resources practice group. Husch Blackwell LLP regularly publishes updates on industry trends and new developments in the law for our clients and friends. Please contact us if you would like to receive updates and newsletters, or request a printed copy. Husch Blackwell encourages you to reprint this material. Please include the statement, "Reprinted with permission from Husch Blackwell LLP, copyright 2011, www.huschblackwell.com " at the end of any reprints. Please also email info@huschblackwell.com to tell us of your reprint. This information is intended only to provide general information in summary form on legal and business topics of the day. The contents hereof do not constitute legal advice and should not be relied on as such. Specific legal advice should be sought in particular matters.
AUTHORITY OVER PLACES PURCHASED “Places” This clause has been broadly construed to cover all structures necessary for carrying on the business of the National Government. 1621 It includes post offices, 1622 a hospital and a hotel located in a national park, 1623 and locks and dams for the improvement of navigation. 1624 But it does not cover lands acquired for forests, parks, ranges, wild life sanctuaries or flood control. 1625 Nevertheless, the Supreme Court has held that a State may convey, and the Congress may accept, either exclusive or qualified jurisdiction over property acquired within the geographical limits of a State, for purposes other than those enumerated in clause 17. 1626 After exclusive jurisdiction over lands within a State has been ceded to the United States, Congress alone has the power to punish crimes committed within the ceded territory. 1627 Private property located thereon is not subject to taxation by the State, 1628 nor can state statutes enacted subsequent to the transfer have any operation therein. 1629 But the local laws in force at the date of cession that are protective of private rights continue in force until abro [p.338] gated by Congress. 1630 Moreover, as long as there is no interference with the exclusive jurisdiction of the United States, an area subject thereto may be annexed by a municipality. 1631 Duration of Federal Jurisdiction A State may qualify its cession of territory by a condition that jurisdiction shall be retained by the United States only so long as the place is used for specified purposes. 1632 Such a provision operates prospectively and does not except from the grant that portion of a described tract which is then used as a railroad right of way. 1633 In 1892, the Court upheld the jurisdiction of the United States to try a person charged with murder on a military reservation, over the objection that the State had ceded jurisdiction only over such portions of the area as were used for military purposes and that the particular place on which the murder was committed was used solely for farming. The Court held that the character and purpose of the occupation having been officially established by the political department of the government, it was not open to the Court to inquire into the actual uses to which any portion of the area was temporarily put. 1634 A few years later, however, it ruled that the lease to a city, for use as a market, of a portion of an area which had been ceded to the United States for a particular purpose, suspended the exclusive jurisdiction of the United States. 1635 The question arose whether the United States retains jurisdiction over a place, which was ceded to it unconditionally, after it has abandoned the use of the property for governmental purposes and entered into a contract for the sale thereof to private persons. Minnesota asserted the right to tax the equitable interest of the purchaser in such land, and the Supreme Court upheld its right to do so. The majority assumed that “the Government's unrestricted transfer of property to nonfederal hands is a relinquishment of the exclusive legislative power.” 1636 In separate concurring opinions, [p.339] Chief Justice Stone and Justice Frankfurter reserved judgment on the question of territorial jurisdiction. 1637 Reservation of Jurisdiction by States For more than a century the Supreme Court kept alive, by repeated dicta, 1638 the doubt expressed by Justice Story “whether Congress are by the terms of the Constitution, at liberty to purchase lands for forts, dockyards, etc., with the consent of a State legislature, where such consent is so qualified that it will not justify the ‘exclusive legislation' of Congress there. It may well be doubted if such consent be not utterly void.” 1639 But when the issue was squarely presented in 1937, the Court ruled that where the United States purchases property within a State with the consent of the latter, it is valid for the State to convey, and for the United States to accept, “concurrent jurisdiction” over such land, the State reserving to itself the right to execute process “and such other jurisdiction and authority over the same as is not inconsistent with the jurisdiction ceded to the United States.” 1640 The holding logically renders the second half of clause 17 superfluous. In a companion case, the Court ruled further that even if a general state statute purports to cede exclusive jurisdiction, such jurisdiction does not pass unless the United States accepts it. 1641 Clause 18. The Congress shall have Power * * * To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by the Constitution in the Government of the United States, or in any Department or Officer thereof.
SUSTAINABLE & COMPREHENSIVE INSTITUTIONAL CONTROLS The General Services Administration's Dave McClure told an AFCEA crowd this week that GSA-led “tiger teams” are working to improve the cloud-computing security guidelines FedRAMP , short for Federal Risk and Authorization Management Program. But McClure said they aren't interested in reinventing the wheel. Speculation has swirled that creating FedRamp is essentially “blowing up [ the Federal Information Security Management Act ] and completely redesigning the security approach to the federal government,” McClure said. But that is only a myth. As Government Computer News reported , the cloud-security guidelines are instead focused on the “security accreditation process by using an approach that can be vetted and reused across the government,” McClure said. There have been a few hiccups. When GSA released a draft of the regulations, it garnered significant public comments — enough so that federal Chief Information Officer Vivek Kundra decided to extend the comment period and push back implementation, GCN reports. In the meantime, GSA has launched so-called “tiger teams,” made up of officials from across the government, McClure said, to address those concerns. Click here to read the full Government Computer News report along with the seven steps the tiger teams are taking to improve FedRAMP regulations.
COEFFICIENT OR ELASTIC CLAUSE Scope of Incidental Powers That this clause is an enlargement, not a constriction, of the powers expressly granted to Congress, that it enables the lawmakers to select any means reasonably adapted to effectuate those [p.340] powers, was established by Marshall's classic opinion in McCulloch v. Maryland. 1642 “Let the end be legitimate,” he wrote, “let it be within the scope of the Constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consistent with the letter and spirit of the Constitution, are constitutional.” 1643 Moreover, the provision gives Congress a share in the responsibilities lodged in other departments, by virtue of its right to enact legislation necessary to carry into execution all powers vested in the National Government. Conversely, where necessary for the efficient execution of its own powers, Congress may delegate some measure of legislative power to other departments. 1644 Operation of Coefficient Clause Practically every power of the National Government has been expanded in some degree by the coefficient clause. Under its authority Congress has adopted measures requisite to discharge the treaty obligations of the nation; 1645 it has organized the federal judicial system and has enacted a large body of law defining and punishing crimes. Effective control of the national economy has been made possible by the authority to regulate the internal commerce of a State to the extent necessary to protect and promote interstate commerce. 1646 The right of Congress to utilize all known and appropriate means for collecting the revenue, including the distraint of property for federal taxes, 1647 and its power to acquire property needed for the operation of the Government by the exercise of the power of eminent domain, 1648 have greatly extended the range of national power. But the widest application of the necessary and proper clause has occurred in the field of monetary and fiscal controls. Inasmuch as the various specific powers granted by Article I, Sec. 8, do not add up to a general legislative power over such matters, the Court has relied heavily upon this clause in sustaining [p.341] the comprehensive control which Congress has asserted over this subject. 1649
The Science and Technology Centers (STC): Integrative Partnerships program supports innovative, potentially transformative, complex research and education projects that require large-scale, long-term awards. STCs conduct world-class research through partnerships among academic institutions, national laboratories, industrial organizations, and/or other public/private entities , and via international collaborations, as appropriate. They provide a means to undertake significant investigations at the interfaces of disciplines and/or fresh approaches within disciplines. STCs may involve any areas of science and engineering that NSF supports. STC investments support the NSF vision of advancing discovery, innovation and education beyond the frontiers of current knowledge, and empowering future generations in science and engineering.
Centers provide a rich environment for encouraging future scientists, engineers, and educators to take risks in pursuing discoveries and new knowledge. STCs foster excellence in education by integrating education and research, and by creating bonds between learning and inquiry so that discovery and creativity fully support the learning process.
NSF expects STCs to demonstrate leadership in the involvement of groups traditionally underrepresented in science and engineering at all levels (faculty, students, and postdoctoral researchers) within the Center. Centers use either proven or innovative mechanisms to address issues such as recruitment, retention and mentorship of participants from underrepresented groups.
Centers must undertake activities that facilitate knowledge transfer, i.e., the exchange of scientific and technical information with the objective of disseminating and utilizing knowledge broadly in multiple sectors. Examples of knowledge transfer include technology transfer with the intention of supporting innovation, providing key information to public policy makers, or dissemination of knowledge from one field of science to another.
AstraZeneca settles US tax dispute, raises earnings
LONDON (AFP) – Anglo-Swedish pharmaceuticals giant AstraZeneca said Monday it had settled a tax dispute with US authorities by agreeing on a net payment of $ 1.1 billion (783 million euros).
AstraZeneca additionally raised its 2011 earnings target after also securing a lower tax rate and being able to free up some of the $ 2.3 billion it had set aside as tax provisions, it said in a group statement.
The company said it would release some of the excess provisions, resulting in a net gain to the company's first-quarter earnings of $ 500 million.
AstraZeneca added that it was now targeting full-year core earnings per share of up to $ 7.20 from a previous estimate of $ 6.75, according to the statement.
Resolution of the tax dispute came after British and US government fiscal authorities agreed to the terms of a pricing agreement for AstraZeneca's US business for a 13-year period from 2002 to the end of 2014.
AstraZeneca added that it had reached agreement with the US tax authorities on a related valuation matter arising on integration of its US businesses in 2000 after the 1999 merger of Swedish group Astra and British company Zeneca.
“Based on these agreements, AstraZeneca now expects to pay a net amount of $ 1.1 billion to resolve all US transfer pricing and related valuation matters for all periods from 2000 to the end of 2010,” the group said in its statement.
Because this action does not propose or impose any requirements and instead seeks comments and suggestions for the Agency to consider in possibly developing a subsequent proposed rule, the various statutes and Executive Orders that normally apply to rulemaking do not apply in this case. Should EPA subsequently determine to pursue a rulemaking, EPA will address the statutes and Executive Orders as applicable to that rulemaking. Dated: February 10, 2011. Jared Blumenfeld, Regional Administrator, U.S. Environmental Protection Agency, Region 9. [FR Doc. 2011-3861 Filed 2-18-11; 8:45 am] BILLING CODE 6560-50-P
EPA Exceeds Clean Water Authority!
On Thursday, the 5th U.S. Circuit Court of Appeals in New Orleans ruled that U.S. Environmental Protection Agency cannot require livestock operations to obtain Clean Water Act permits unless they are discharging manure into a waterway. It was a major victory for U.S. livestock and poultry producers.
American Farm Bureau Federation, National Pork Producers, United Egg Producers and several other ag groups sued EPA over its so-called CAFO rule. It's the second ruling against EPA since 2005 over essentially the same issue: EPA sought to require permits for operations that had a "potential" to discharge.
EPA's 2008 CAFO regulation set a zero-discharge standard. It required a Clean Water Act for all CAFOs that discharge or "propose" to discharge. The rule covered production areas and crop land on which manure is applied and imposed fines of up to $37,500 a day.
"The court recognized a clear limit on EPA's authority and required the agency to comply with the clean water law," said Doug Wolf, president of the National Pork Producers Council, and a pork producer from Lancaster, Wis.
The ag groups contended that the 2008 rule "constitutes a thinly veiled effort to impose the same duty to apply that was invalidated" by the 2nd Circuit in New York. The 5th Circuit Court agreed, noting that "there must be an actual discharge … to trigger the CWA's requirements and EPA's authority." It also struck down the CAFO rule's "failure to apply" provision, stating that its imposition is "outside the bounds of the CWA's mandate."
Environmental justice: An old idea with a new emphasis
By CAROL SMITH
INVESTIGATEWEST
Environmental justice is an old mandate getting a new life under Lisa Jackson, the first African-American head of the Environmental Protection Agency.
Environmental justice refers to the fair treatment of all communities when it comes to enforcing environmental laws and protecting them from health and environmental hazards. It was first made a federal priority with a 1994 executive order intended to right inequities in minority and low-income communities that were experiencing a disproportionate share of the nation's environmental hazards.
The order, signed by President Clinton, required all federal agencies to incorporate environmental justice into their decision-making processes.
But the mission languished for the next several decades.
A 2007 study by Sandra George O'Neil published in Environmental Health Perspectives, for example, concluded that inequities had not only persisted, but also escalated in the intervening years with fewer polluted sites in minority and low-income communities being designated for Superfund cleanup funds, compared with those in wealthier areas.
That study along with criticism of the Superfund program by the Government Accounting Office and the U.S. Office of the Inspector General galvanized a call to reform the approach to environmental justice among federal agencies.
Under the Obama Administration, the EPA along with other federal agencies has a strict new edict to take justice into account. Jackson has assumed a high-profile role in evangelizing for environmental justice. She is mid-stream in a well-publicized "Environmental Justice Tour" that is taking her around the country visiting communities beleaguered by toxic waste.
And that in turn has invigorated communities with a new enthusiasm that raising their voices will make a difference.
This document explains what happened in Japan and what we can do in the U.S. to increase our individual and community resilience from an earthquake and/or tsunami event. This also includes recommended FEMA publications and useful web links for additional resources.
Please SHARE this document with others! This document will also be available from the FEMA Library .
To view or download other NEHRP publications and products or to sign up for updates on earthquake risk mitigation publications, news, and events, visit Earthquake Publications and Tools .
The National Earthquake Hazards Reduction Program (NEHRP), which was first authorized by Congress in 1977, seeks to mitigate earthquake losses in the United States through basic and directed research and implementation activities in the fields of earthquake science and engineering. As one of the four NEHRP federal agencies, FEMA is responsible for developing effective earthquake risk reduction tools and promoting their implementation, as well as supporting the development of disaster-resistant building codes and standards. FEMA's NEHRP activities are led by the FEMA Headquarters, Federal Insurance and Mitigation Administration, Risk Reduction Division, Building Science Branch, in strong partnership and coordination with the FEMA Regions, the states, the four multi-state earthquake consortia, and other partners.
This report highlights a cross-section of successful FEMA NEHRP projects and programs in Fiscal Year (FY) 2010. Some of the more exciting activities and accomplishments include ROVER, a new IT-based data collection and evaluation tool developed with the Applied Technology Council; FEMA's QuakeSmart program to assist local businesses mitigate earthquake losses; continuing work on the Performance-Based Seismic Design project; and engineering field work in Chile after the 8.8 magnitude earthquake. The report also includes many successful state, local, and regional activities in earthquake training and awareness, seismic safety inspections, building codes adoption, the development of multi-state groups, and public outreach.
The accomplishments described in the FY 2010 report show how FEMA and its partners, working in collaboration, are continuing to make progress toward earthquake loss-reduction nationwide. Work completed in 2010 will have applications immediately or in the near term in reducing earthquake risk. Work advanced in 2010 also is creating a strong foundation for realizing similarly effective outcomes in future years.
EPA feels pushback on tough regulation Congress looking to cut agency's power Monday, March 21, 2011 By Daniel Malloy, Post-Gazette Washington Bureau
WASHINGTON -- The Environmental Protection Agency, says Jim Laurita, is standing in the way of a project that should be a no-brainer.
Mr. Laurita is CEO of Dana Mining Co., which reached an agreement in 2003 with Pennsylvania's Department of Environmental Protection to split costs with the state to pump water out of the abandoned Shannopin Mine in Greene County, run it through a treatment plant and dump it in Dunkard Creek, a Monongahela River tributary.
The state allowed Dana, through a nonprofit called AMDRI, to dump water with pollution levels higher than the typical standard into the stream, avoiding potential disaster in the area's waterways if the acidic mine water were to overflow. Dana benefits by preventing an underground flood in its own mine nearby.
But a permit renewal for the project has been held up because state regulators want stricter controls on pollutants in the water. Mr. Laurita said his company cannot afford the more expensive treatment required, and he sees the EPA at work behind the scenes pressuring the state.
"It's been a win-win, but EPA doesn't look at stuff like that," he said. "And that's the problem. There's no practical basis by which some of these federal agencies operate."
The EPA under President Barack Obama and Administrator Lisa P. Jackson has enforced clean air and clean water standards at a pace too aggressive for many industries' tastes.
Now Congress, led by the newly Republican-controlled House of Representatives, is seeking to curtail the agency's power and has made EPA a top target for criticisms of administration overreach.
A House committee last week passed a bill to block the EPA from regulating greenhouse gases, with the Senate likely to vote soon on a similar measure. A government funding bill recently passed by House Republicans would have slashed EPA's budget by a third. Ms. Jackson, by a Washington Post tally, has been called to testify before Congress this year more than any other federal agency director, and has been a frequent subject of tongue-lashings in high-ceilinged hearing rooms.
"I'm not happy with EPA on several different levels in the way they've been working in Pennsylvania recently," said Rep. Mark Critz, D-Johnstown, citing the Dana case in his district.
"My gut reaction because I'm so angry with them is to cut them from being able to do anything until they sit down and start acting more reasonably."
Still, Mr. Critz wouldn't commit to voting for the bill sponsored by Rep. Fred Upton, R-Mich., that would ban the agency from regulating greenhouse gas emissions, saying he was still studying the issue.
"We can't just knee-jerk react to things, and that's what I'm trying to protect against," he said.
In 2009 EPA found that the emissions cause global warming and thus pose a danger to human health, so the agency is in the midst of developing regulations to curb them under the Clean Air Act. The agency's foes say the pending rules are a way to enact through fiat what Congress could not do with legislation, as even with massive Democratic majorities it did not pass a climate bill in the last Congress.
"The American people aren't there," said Rep. Jason Altmire, D-McCandless, who supports the concept of the Upton bill but is still parsing the language before he commits his vote.
Mr. Altmire's vote won't be needed for the bill to clear the House, given the large Republican majority there, but the Senate climate is murkier. Minority Leader Mitch McConnell, R-Ky., proposed a bill similar to Mr. Upton's last week, but any consideration was bumped until after next week's recess.
A full ban on greenhouse gas regulations would likely fail, but a proposal by Sen. Jay Rockefeller, D-W.Va., to delay greenhouse gas regulations by two years stands a chance at passage, and might be voted on in place of Mr. McConnell's bill. Sen. Bob Casey, D-Pa., a closely watched swing vote on Mr. Rockefeller's bill, said last week that he will not commit to a vote before seeing what final proposal emerges.
But in letters to agency officials last year, Mr. Casey urged the EPA to take concerns of the coal and utility industries into account when drafting rules on the disposal of coal ash and emissions from boilers.
Rep. Mike Doyle, D-Forest Hills, said a toned-down discussion about regulations' effect on industries is more constructive than the effort to remove its ability to police heat-trapping gases.
Mr. Doyle, who voted against the greenhouse gas bill in committee, recalled the sooty air and slimy rivers of his youth in Pittsburgh and credited the region's environmental improvements to stiff federal regulation.
"Does it ever get to the point where sometimes they overregulate? Yeah it does, and we have to swing the pendulum back the other way," he said. "The answer isn't to tell the EPA it can't do its job, ignore a scientific finding and don't enforce it."
The greenhouse gas issue is only one in a litany of gripes area members of Congress have with the agency.
The EPA recently ticked off Rep. Tim Murphy, R-Upper St. Clair, by sending a letter, without warning, to the state DEP demanding more aggressive radiation testing and announcing it was going to inspect water treatment plants, following the Times' report on radiation and the Marcellus Shale.
"It is pervasive throughout EPA to ignore the states, to ignore Congress, to ignore the wishes of the people and just act as their own independent branch of government and impose actions and regulations," Mr. Murphy said.
In the face of the open scorn, EPA has not backed down from issuing new regulations, many of which are required by court rulings. Last week, for example, it issued the first-ever regulation of mercury from power plants, along with other toxic emissions. The proposed rule would reduce mercury emissions by 91 percent by going after the biggest pollution sources.
Industry leaders, estimating $100 billion in compliance costs, said the rule was too broad by reaching beyond mercury and said once again that the EPA was harming the economy.
EPA claimed 17,000 lives would be saved and 11,000 heart attacks averted by the improved air quality.
More thoroughly detailing benefits -- with analyses often questioned by industry groups -- has been a major shift for EPA, said Adam Garber, an organizer for PennEnvironment.
"From their perspective and our perspective, saving 17,000 lives is worth a lot of jobs," he said. "They're trying to get the argument out there that this is a life-saving measure for a big industry that can afford it. ... I think they are being more aggressive on those kinds of arguments, but on the actual regulations that are coming out, I don't think they are toning it down."
Reclaiming the Constitution (Part 6)
by Wes Riddle
Mon, Mar 21, 2011, 02:48 PM
Perhaps the purest Tenth Amendment cases in constitutional law have to do with congressional enactments that "commandeer" instrumentalities of state government. The "commandeering" doctrine offers additional grounds for hoping that the Supreme Court will vindicate local authority and roll back federal overreach. In New York v. U.S. (1992) the Court struck down a federal law that required States to take title to nuclear waste. In Printz v. U.S. five years later, the Court struck down a part of the Brady Act that required States to conduct background checks on prospective gun purchasers.
These cases do not rely on enumerated powers constraints as a basis for decision. Thus, they did not address general federal authority to regulate either nuclear waste or gun purchases. What the federal government cannot do, under New York and Printz, is to order instrumentalities of state and local government to serve as instrumentalities of the federal government.
As Michael Greve notes in Real Federalism: Why It Matters, How It Could Happen (1999), "what the Supreme Court has done is to elevate the Tenth Amendment into an extratextual, judge-made principle of intergovernmental immunity." Greve argues that the "genius" of Justice Scalia's majority opinion in Printz is to locate that intergovernmental immunity in the "structure" of the Constitution: "First Justice Scalia explains that the Constitution establishes a system of 'dual sovereignty,' wherein the States and the national government occupy separate 'spheres.' The Tenth Amendment is only one of the indicia of federalism so understood.
"Second, Justice Scalia maintains that the congressional commandeering of state and local officers would undermine the federal executive: by dragooning state and local officers into federal law enforcement, Congress could subvert and circumvent the President's constitutional authority to ensure the faithful execution of the law.
"Third, Justice Scalia argues that Congress lacked the constitutional authority to enact the background check requirements under, of all things, the Necessary and Proper Clause of the Constitution, which empowers Congress to 'make all laws which be necessary and proper' to the enforcement of its delegated powers. A law that presses state and local officers into federal service, Justice Scalia maintains, cannot be 'proper.' Each of these three claims points beyond the seemingly limited holding in Printz. Each implies a notion of federalism, not as a mere protection of state immunity but as a direct constraint on the federal government."
Justice Scalia's opinion takes aim at the danger of requiring States to enforce federal laws, particularly the danger of diminishing political accountability: "By forcing state government to absorb the financial burden of implementing a federal regulatory program, Members of Congress can take credit for 'solving' problems without having to ask their constituents to pay for the solutions with higher federal taxes. And even when the States are not forced to absorb the costs of implementing a federal program, they are still put in the position of taking the blame for its burdensomeness and for its defects."
One promising area of Tenth Amendment jurisprudence is therefore what meaning can be attached to the word "proper" within the final clause of Article I, Section 8 of the Constitution, which grants Congress the power "To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers." To follow Justice Scalia's opinion in Printz, a law that upsets the federalist structure of the Constitution by infringing on the "quasi-sovereign" status of States might not be "proper."
_____________________
Wesley Allen Riddle is a retired military officer with degrees and honors from West Point and Oxford. Widely published in the academic and opinion press, he ran for U.S. Congress (TX-District 31) in the 2004 Republican Primary and is currently Chairman of the Central Texas Tea Party. Article condensed from an essay by Ted Cruz and Mario Loyola (Texas Public Policy Foundation, Nov 2010). Email: \n Wes@WesRiddle.com.
Science and policy can catalyze each other, EPA head says
In MIT visit, Lisa Jackson discusses how technology can affect government regulations. Jennifer Chu, MIT News Office
Technological innovations have the ability to change environmental policies just as much as those policies can affect innovation, U.S. Environmental Protection Agency ( EPA ) Administrator Lisa P. Jackson said during a visit to MIT on Friday, Apr. 15. In delivering the annual Henry W. Kendall Memorial Lecture, Jackson urged students and faculty at the Institute to look for sustainable solutions to environmental problems.
Jackson , a chemical engineer, addressed the relationship between science and environmental policy, and spoke about the chicken-and-egg nature of her job. “How do we implement the laws we have, and try to make sure we don't stifle innovation … but also ultimately realize we need legislation to get there?” she said.
She noted that environmental policies often act as incentives for scientists to develop new technologies. At the same time, new inventions can spur changes in environmental laws. “We catalyze each other,” she said.
A symbiotic relationship between science and environmental policy is especially crucial for the issue of climate change, Jackson said. Earlier this month, members of Congress drafted measures that would have prevented the EPA from regulating carbon dioxide and other greenhouse gases under the Clean Air Act, a “fairly draconian move,” according to Jackson. The Senate failed to pass the measures, and President Barack Obama has said he would veto any similar bills in the future.
But the issue is likely not dead, Jackson said, and when it comes time for Congress to draft the federal budget for 2012, “we'll probably see this battle played out again.” In the meantime, provided the EPA's authority remains intact, the agency will start to set milestones for industries — the energy sector in particular — to curb greenhouse gas emissions, she said. Looking ahead, Jackson said she would like to see the conversation on climate change shift from politics to science, to focus on developing technologies to minimize greenhouse gas emissions. Such innovations, she hopes, could ultimately push climate change policy forward.
“I think we do have policy cobwebs all over the place right now,” Jackson said. “I will admit I have a bias that leads me to believe — partly as an engineer — that we have to not settle for standards that are not progressive enough.”
Dispelling doubts
Jackson said some elected officials and industry members cast the EPA as the bad guy when the agency attempts to revamp environmental regulations — a reaction that often reminds her of a scene in the 1980s cult classic “Ghostbusters,” in which an EPA official pays a visit to the Ghostbusters office and arrests the team for allegedly storing hazardous chemicals in their basement. The EPA orders the Ghostbusters to shut down operations, which inadvertently frees hundreds of ghosts to spread mayhem throughout New York City.
“Oftentimes in this country, any environmental or clean-energy idea or policy is met with one sort of knee-jerk reaction,” Jackson said, often of “doom and gloom” relating to cost; industries claim that meeting stricter environmental standards is exorbitantly expensive, she said.
Jackson said the antidote to such knee-jerk reactions may be technological innovation, and she called on scientists at MIT and other research institutions to develop sustainable and cost-effective solutions to help meet the country's environmental and clean-energy goals.
MIT President Susan Hockfield, who introduced Jackson, noted how the EPA administrator, just days before Hurricane Katrina hit, drove to New Orleans to transport her mother to safety.
"So she knows, in the most direct way, what we risk when we fail to manage our relationship with the forces of nature," Hockfield said.
Jackson's work addressing the country's environmental and energy issues mirrors work underway at MIT, Hockfield said, citing research by MIT faculty that provides cost-effective and sustainable solutions to climate change, including technology that prints solar cells on waterproof paper, an innovation that may significantly reduce the price of installation, a key cost of harvesting solar energy.
“I applaud MIT's commitment to making sure solutions don't cause one problem by fixing another,” Jackson said.
Early intervention
According to Jackson, another area in which scientists and policymakers can work together is in the arena of toxic chemical control. She said the EPA uses the country's Toxic Substances Control Act, established in 1976, to regulate the development of new chemicals, but described the act as “widely considered fairly toothless.”
“The laws in this country say, ‘I'll develop whatever chemistry you need,' and that's a good thing, we want more innovation,” Jackson said. “But it relies on government to oversee the end result … and it doesn't push innovation on the front end so it is greener from the beginning.”
Jackson said the country needs a new toxic chemicals law that encourages “green chemistry,” in which substances are specifically developed to be safe and sustainable from the start.
“Even though we don't face the same kind of bread-and-butter environmental problems with the air and water and land pollution we had 40 years ago, we have to think about solutions that are as transformative as the Clean Air Act or the Clean Water Act was for our country,” Jackson said. “The ideas will start with technology and will end up with public policy.”
The Kendall lecture, sponsored by the Department of Earth, Atmospheric and Planetary Sciences and the Center for Global Change Science, honors the legacy of Henry W. Kendall, a MIT physics professor who received the Nobel Prize in 1990 for providing experimental evidence for quarks. Kendall founded the Union of Concerned Scientists in 1969 and throughout his life was deeply committed to finding scientific solutions to environmental problems.
EPA Activities
Ensuring that water quality regulations in the Delta sufficiently protect beneficial uses, such as drinking water, fish and wildlife habitat, and agriculture.
Assessing the effectiveness of water quality programs in protecting Bay Delta Estuary aquatic species and ecosystem.
Reviewing Water Quality Control Plans produced by California's State Water Resources Control Board and Regional Water Quality Control Boards for Bay Delta, San Francisco Bay, and Central Valley
Providing technical, financial and regulatory assistance for the development and implementation of Total Maximum Daily Load (TMDL) objectives and watershed plans to restore impaired waters and protect aquatic ecosystems.
Supporting the State's priority activities that will address water supply and environmental problems in the Bay Delta.
California State Water Resources Control Board approved a report determining new flow criteria for Delta ecosystem that are necessary to protect public trust resources.
Delta Flow Criteria Presentation (PDF) (24 pp, 2.3M) : Presentation by Dr. Bruce Herbold, EPA R9 Fisheries Biologist, to the State Water Resources Control Board at the March 22 – 24 Delta Flow Criteria hearing.
Delta Flow Criteria Written Comments (PDF) (4 pp, 54K) : Written comments by Dr. Bruce Herbold, EPA R9 Fisheries Biologist, to the State Water Resources Control Board following the March 22 – 24 Delta Flow Criteria hearing.
Engaged in a renewed federal partnership focused on identifying long-term solutions for Delta resource management problems by working with the State of California (State) and a diverse set of stakeholders.
Improving comprehensive water quality monitoring & assessment in the Central Valley to provide a sound scientific basis for targeting water quality improvement activities with a special emphasis on the San Joaquin River Basin.
Section 305(b) of the Clean Water Act requires states to assess and report on the water quality status of waters within the states. Section 303(d) requires states to list waters that are not attaining water quality standards. This is also known as the list of impaired waters. This information is reported to Congress on a nationwide basis.
Poor water quality in the Bay Delta Estuary and its tributaries affects terrestrial and aquatic ecosystems, drinking water, recreation, industry, agriculture, and the local and state economy. The State of California collects data on contaminants that degrade water quality to generate its Clean Water Act Section 303(d) list of water bodies with designated use impairments.
All of the waters within the Bay Delta Estuary are listed as impaired by at least one factor, either due to the presence of pollutants at unacceptable levels or the lack of maintaining certain conditions such as adequate levels of dissolved oxygen. Impairments in Bay Delta Estuary waters include:
Some pesticides and metals are legacy problems, such as the banned organochlorine pesticide DDT and mercury from abandoned mines. Most contaminants contributing to poor water quality in the Bay Delta Estuary are the result of current-use compounds from industrial, agricultural, urban, transportation, and natural sources. In addition, there is growing concern about new classes of contaminants, such as pyrethroid pesticides, pharmaceuticals and personal care products.
Bruce Herbold (Herbold.Bruce@epa.gov), Fisheries Biologist & Senior Scientist
(415) 972-3460
Carolyn Yale (Yale.Carolyn@epa.gov), San Joaquin River Basin Lead
(415) 972-3482
Luisa Valiela (Valiela.Luisa@epa.gov), San Francisco Bay Lead
(415) 972-3400
Sam Ziegler (Ziegler.Sam@epa.gov), Watersheds Office Manager
(415) 972-3399
Karen Schwinn (Schwinn.Karen@epa.gov), Associate Director,
Water Division and Bay Delta Team Manager
(415) 972-3472
CONTACT:
Dale Kemery (News Media Only) kemery.dale@epa.gov
202-564-7839
202-564-4355
FOR IMMEDIATE RELEASE
March 21, 2011
EPA Warns Online Shoppers about Illegal, Harmful Pesticide Sales
WASHINGTON – The U.S. Environmental Protection Agency (EPA) announced today that it has warned more than 2,800 customers across the United States about risks associated with a banned pesticide in an ant-control product they purchased online through fastpestcontrol.com . The product, Fast Ant Bait, contained mirex, a pesticide that was banned in 1978 because it can cause liver, skin, reproductive and nerve damage.
“Illegal pesticides are often much more toxic than approved pesticides,” said Steve Owens, assistant administrator for EPA's Office of Chemical Safety and Pollution Prevention. “When EPA takes a pesticide off the market, it means that pesticide was not safe. Consumers should use only EPA-registered pesticides and always follow the label directions to ensure their safety.”
EPA became aware of the product after the Washington State Department of Health reported that a woman became ill after using it in her home. In response, EPA identified and warned three online companies, 2Checkout.com Inc., CCNow, Inc. and eBay Inc. to cease processing orders for the product that was produced and mailed from China. The three companies cooperated, immediately ceased processing orders and consumers can no longer purchase products from fastpestcontrol.com , the original site that offered the product for sale. The companies also worked with EPA to provide sales information, which allowed the agency to contact customers directly about the dangers posed by the pesticide and proper disposal methods.
The letter EPA sent to customers who bought the product provides detailed directions on how to safely clean up and dispose of the illegal product and what to do if they believe they were exposed or harmed. For more information on mirex or other pesticides, consumers can call the Agency for Toxic Substances and Disease Registry Information Center at 1-888-422-8737 or the National Pesticide Information Center (NPIC) at 1-800-858-7378.
Last week, the Environmental Protection Agency proposed new regulations governing emissions of mercury and other toxic air pollutants from power plants. This rule has been a long time coming. In the waning moments of the Clinton Administration, the EPA made a finding that would trigger mercury emission controls on power plants under the Clean Air Act. The finding had been in the works for some time, but the Clinton EPA had been reluctant to pull the trigger until December 2000. The Bush Administration did not appreciate the house-warming gift, and tried to undo the Clinton Administration's handiwork with an alternative approach. They first tried legislation, but when Congress wouldn't bite they pushed through regulations. The only problem was that the Bush EPA disregarded the Clean Air Act's plain text in the process, earning a well-deserved rebuke from the U.S. Court of Appeals for the D.C. Circuit. The new rules, once finalized, may well trigger litigation, but I doubt we'll see the same result. From what I've looked at so far, this is a fairly traditional regulatory approach.
This EPA fact sheet gives some background on the rule, stressing the anticipated reductions of mercury emissions. What the fact sheet does not mention is that, the lack of meaningful federal mercury controls notwithstanding, mercury emissions have declined since 1990. As the EPA's Report on the Environment shows between 1990–93 and 2005, mercury emissions declined by 58 percent. Coal-burning facilities — which are covered by the new rule — represent the lion's share of the rest.
The emission trends are positive. So, too, are trends in blood mercury levels. As the same EPA report shows blood mercury levels in women have declined, particularly among those at the 90th and 95th percentiles. From the EPA report: “during the 1999–2000 survey, 10 percent (i.e., 90th percentile value) of surveyed women age 16 to 49 had blood mercury levels of 4.9 µg/L or higher. In the 2007–2008 survey, however, the 90th percentile value had decreased to 2.7 µg/L.” That's a significant drop for those with among the highest levels in the country.
These positive trends do not mean additional mercury controls are unnecessary, but it does put their urgency in perspective. It also suggests that the Bush Administration's approach, which would have utilized a more flexible cap-and-trade approach instead of facility-specific limits, may have been good policy after all, even if it was horribly bad law.
U.S. To Sign MOU With World Bank On Water Aid; Water For The World Act Reintroduced In Senate
U.S. Secretary of State Hillary Rodham Clinton on Tuesday will mark World Water Day by signing a memorandum of understanding (MOU) with the World Bank President Robert Zoellick aimed at "strengthen[ing] support to developing countries seeking a water secure future," RTTNews reports (3/21).
According to a State Department press release , "[b]efore the MOU signing ceremony, non-government organizations (NGO) will highlight new commitments by NGOs and the private sector to address water and sanitation challenges in developing countries." NOAA Administrator Jane Lubchenco, Under Secretary of State for Democracy and Global Affairs Maria Otero and USAID Deputy Administrator Donald Steinberg are expected to deliver remarks at the event, according to the release (3/18).
In related news, Sens. Dick Durbin (D-Ill.) and Bob Corker (R-Tenn.) on Thursday introduced the Water for the World Act, according to a press release from Durbin's office. The bill "builds on the success of the Paul Simon Water for the Poor Act by placing clean water in the forefront of America's development priorities, seeking to reach 100 million people around the world with sustainable first-time access to clean water and sanitation within six years of enactment," according to the release.
"Durbin first introduced the Paul Simon Water for the World in March of 2009. That bill passed the Senate in the fall of 2010, but failed to pass the House of Representatives," the release notes and highlights several goals of the bill. The office released an accompanying factsheet (.pdf) on the bill (3/18).
Sen. Murkowski on America's Tremendous Resource Potential
Below is the full text of Sen. Murkowski's floor statement:
“Madam President, I've come to the floor to discuss America's tremendous natural resource potential, and to again highlight the fact that if we choose to, we can absolutely produce more of our energy to meet our own needs. I also want to address an argument that is often made in opposition to new domestic production, because I believe every member of this chamber needs to know the facts and the consequences of our current approach.
“Without a doubt, understanding how much energy we have is at the very foundation of energy policy. For resources like wind and solar, it's pretty easy – they're renewable, so we should never run out. But for conventional resources, which make up about 83 percent of the energy that America consumes, it's a different story. Oil and natural gas and coal aren't located on the surface of the Earth, so we don't always know exactly what we have and where we have it.
“Finding and quantifying our resources is a tough enough task. Adding to the complexity is the litany of technical terms that are used to describe them. There are proved reserves, probable reserves, possible reserves, unproved reserves, and our demonstrated reserve base. Then we move into resources, which are different from reserves. That list includes eight more categories, and every one of them means something different.
“I'd imagine that most people don't have a great understanding of these terms. By and large, that's perfectly fine – unless you're a member of the U.S. Senate. Because we're tasked with helping to formulate our nation's energy policy, we need to know the details and distinctions. Before we make critical decisions that affect the price and the source of our energy supply, it's our responsibility to know what our experts think we actually have.
Farmers and ranchers are not happy with the Environmental Protection Agency. They see an agency that does not understand agriculture and imposes burdensome and confusing regulations. EPA may be the federal agency charged with enforcing the Clear Air and Clean Water acts but when it comes to agriculture, their policies are unclear and the process murky at best.
Responding to questions about the reason and need for some of their farm-related regulations, EPA says they are only doing what the courts tell them to do. The fact is that environmental activist groups often sue the EPA but the cases don't even reach the point of a judge's decision. Instead, there seems to be a pattern of an activist lawsuit, followed by an EPA settlement, resulting in new EPA regulations to comply with the settlement.
Environmental groups use the courts to twist laws against American farmers and agricultural production. This is resulting in policy decisions being made by activists, bureaucrats and lawyers without consideration of what's best for American agriculture. This pattern has been going on far too often and many times without adequate transparency.
This is no way to make policy.
This so-called “sue and settle” strategy keeps the process in the dark and often ignores producers until after the fact. Farmers and ranchers working and living on the land have a right to a seat at the table when policy decisions are made especially when the settlements frequently contain provisions critical to agriculture and rural communities.
EPA needs to reclaim a commitment to transparency and accountability. The process is seriously flawed and it is leading to damaging results out in the countryside. I challenged EPA's administrator, Lisa Jackson, at a recent hearing to answer some important questions about what's happening.
For instance, how does EPA decide what lawsuits they will settle and who will participate in settlement negotiations? How much taxpayer money is used to pay activists who sue the government? How frequently do these agreements with activist groups lead to new regulations? How closely does EPA follow the language in settlement agreements when proposing new rules? Does EPA consider the impact on farmers and ranchers when negotiating settlement agreements? And, how much does public comment factor into finalizing rules based on settlement agreements?
EPA's mission is to ensure that we have a clean environment but I wonder if their backdoor manner of making regulations is simply muddying the waters. I hope to get some answers.
Collin Peterson, DFL-7th District, is ranking minority member of the U.S. House Agriculture Committee.
FOR IMMEDIATE RELEASE
PRLog (Press Release) – Mar 21, 2011 – Phase 1 investigations, also known as environmental due diligence, is a common occurrence before many commercial property transactions occur. The Phase 1 investigation is used by potential property buyers and lenders to determine if a property has any environmental contamination issues and to assess any potential liability from the contamination.
In 2005 the U.S. Environmental Protection Agency (EPA) issued the All Appropriate Inquires (AAI) Rule – Environmental Site Assessments, Phase 1 Investigations. It established the standards and requirements for conducting the necessary investigations to qualify for landowner liability protection under CERCLA.
According to the EPA, “The Comprehensive Environmental Response, Compensation and Liability Act (CERCLA), also known as “Superfund,” was established to address abandoned hazardous waste sites. Among other things, CERCLA establishes a liability scheme for determining who can be held accountable for releases of hazardous substances.” The EPA's standards and practices are set force in regulations promulgated at 40 CFR Part 312. They also recognize ASTM International Standards E1527-05 and E2247-08.
There has been a growing trend in the residential property market in the Mid-Atlantic region of conducting Phase 1 investigations before a property transaction. Residential property owners and lenders are growing increasingly concerned about past land uses and Phase 1 investigations from SEHC provide the answers they need. SEHC has decades of experience performing thorough environmental due diligence surveys.
“Phase 1 environmental site assessments were traditionally conducted almost entirely for commercial property transactions,” stated Susan White, Ph.D., CMC, President of SEHC. “In recent years we have witnessed an increase in the number of Phase 1 investigations being requested for residential property transactions in Delaware, Maryland and across the Mid-Atlantic.”
To learn more about Sussex Environmental Health Consultants' Phase 1 investigations or other health and safety services please visit http://www.sussexenvironmental.com , email susan.white@ mchsi.com or call (302) 947-1810.
# # #
About Sussex Environmental Health Consultants, LLC
SEHC is a certified woman owned business that provides environmental and health and safety consulting services. The company is located in the Mid-Atlantic and services clients nationwide. SEHC provides solutions to clients ranging from homeowners to international Fortune 500 corporations.
“A venti twenty-ounce latte holds approximately one pound of nitrogen,” he said. “The cost to remove that much nitrogen can be six dollars – or it can be six thousand dollars – depending on if it is removed in a waste water system or an urban stormwater retrofit.”
Domenech's example is a perfect illustration of the complexities that regulators face in restoring the Chesapeake Bay watershed, which spans 64,000 square miles over five states and the District of Columbia. The nitrogen, phosphorus, and sediment pollution plaguing the Bay come from innumerable sources: urban storm-water runoff, fertilized croplands, sewage plants, and logged forests, among others.
Cleanup requires many strategies in many places, and one market-based strategy gaining popularity is the use of quantitative water quality standards as de-facto pollution caps in cap-and-trade water quality trading programs .
Both the State of Florida and the Chesapeake Bay region are in the process of developing programs that do just that, and both may very well serve as test models for new watershed protection efforts across the country. The federal Environmental Protection Agency (EPA), however, is facing lawsuits in both states by groups rankled over the agency's efforts to step up restoration in impaired waterbodies.
The outcomes of these cases could have important ramifications for using water quality markets and other incentive-based mechanisms for cleanup. EPA's demands for greater accountability from states and local communities could catalyze market-based approaches – or stifle them, if implementation plans aiming for meticulousness forget about flexibility.
Chesapeake Bay
On January 12th, the Pennsylvania Farm Bureau, backed by the national American Farm Bureau, filed suit in a federal court in Harrisburg seeking to block the new Chesapeake Bay program , which aims to establish caps based on so-called “total maximum daily loads” (TMDLs), which are the amount of pollution or other changes that a water body can absorb without violating state water quality standards.
In its lawsuit, the Farm Bureau makes a number of arguments, the most important being that the Clean Water Act (CWA) intended TMDLs to be informational tools only, and that the EPA overstepped its authority by taking charge of states' planning processes to implement a TMDL cap.
“How, when, and indeed whether a TMDL is ultimately achieved…is placed exclusively in the hands of each state,” says the official complaint. “EPA has no authority to cross the line between identifying total pollutant levels necessary to meet water quality standards and specifying implementation requirements.”
At the heart of the Farm Bureau's objections is a novel ‘accountability framework' for the Chesapeake TMDL, developed in response to Executive Order 13508, signed by President Obama in May of 2009, which directs federal agencies to redouble efforts to restore the Chesapeake Bay.
After decades of dangling carrots to encourage voluntary cleanup actions failed to halt the Bay's decay , EPA is now wielding some sticks: in addition to reviewing (and in some cases, initially rejecting ) states' Watershed Implementation Plans (WIPs), which set out strategies and timelines for cleanup, EPA is reserving the right to use ‘backstop measures' if WIPs aren't fully implemented.
These include expanding the National Pollutant Discharge Elimination System (NPDES) to cover non-point sources such as storm-water dischargers and animal feeding operations, which are not currently covered under the Clean Water Act. That particular threat has further infuriated the Farm Bureau, which sees it as another overreach of authority. EPA has also ordered states to set biennial milestones, with heavy consequences for those states that fail to meet them, including withholding funding and NPDES permit approval.
These actions, the Farm Bureau lawsuit claims, amount to an encroachment on states' rights. EPA counters that it has acted within its authority. At a January 10th conference , EPA's Jim Curtin conceded that the agency could not legally require WIPs in order to achieve a TMDL.
“We have in this TMDL tried very, very carefully to respect that dichotomy,” he said, suggesting instead that both are part of the larger restoration process. Curtin also noted that the Clean Water Act doesn't clearly spell out EPA's authority when it comes to regulation across a multi-state watershed, but that courts in the past have supported federal efforts to establish multistate pollution caps.
The Farm Bureau's complaint also takes issue with the models used to set the TMDL, questioning their “ scientific validity ”, and arguing that opportunities for public consultation on the TMDL were inadequate.
Florida
Meanwhile, in Florida, EPA has become the target of lawsuits over its 2010 Final Rule, which sets quantitative nutrient limits on the entire state's lakes, rivers, streams, and springs. Currently, nutrient criteria are simply ‘narrative,' requiring that “in no case shall nutrient concentrations of a body of water be altered so as to cause an imbalance in natural populations of aquatic flora or fauna.” Numeric limits are only introduced on a site-specific basis. The new statewide numeric ruling, which takes effect in 2012, is the product of a consent decree the EPA signed to settle a lawsuit filed by environmental groups in 2008.
Among the parties currently suing EPA over the new numeric standards: the State of Florida, the Florida Agricultural Commissioner, the Florida League of Cities, the Florida Stormwater Association, and numerous municipal and county groups, as well as members of the fertilizer and mining industries, at last count.
The complaints share a similar argument – and one that echoes debates up in the Chesapeake Bay. The Final Rule is a “ federal mandate ” and an intrusion into state regulatory affairs, which had received EPA's approval until the environmental group lawsuit, plaintiffs say. Most also question the scientific basis of the EPA numbers and argue that implementing numeric nutrient limits for the entire state will inflict high costs on businesses, citizens, and the public sector.
Exactly how expensive the new rule will be is a fraught question; EPA estimates the new standards will cost between $135.5 and $206.1 million, or three to five dollars a month for the average Florida household. A study commissioned by the Florida Stormwater Association puts costs in the billions.
EPA maintains that state-wide numeric nutrient criteria will actually help streamline watershed management planning; under the current approach, local planners have to spend time and money determining what quantitative targets meet the narrative criteria.
In the suit filed by the state, the EPA is also accused of initiating the Final Rule simply to resolve the environmental group lawsuit, and to preempt similar lawsuits in other states.
What's at Stake
A March 16th memo circulated to EPA regional administrators suggests that the agency will push all the states to develop numeric nutrient criteria, though EPA Administrator Lisa Jackson, speaking before a House panel on March 10th, insisted that EPA had no plans to impose them , as was done in Florida.
On the other hand, the Chesapeake TMDL is publicly expected to be a model for other multi-state restoration strategies, including in the Mississippi River Basin, the Gulf of Mexico, and the Great Lakes. Executive Order 13508 calls on the EPA to develop pollution-control strategies in the Chesapeake that “can be replicated in efforts to protect other bodies of water.”
In this sense, there's much more riding on the case than just the restoration of the Chesapeake Bay watershed, and the EPA and the Farm Bureau are keenly aware of this.
The Farm Bureau's strategy could very well backfire, says Brent Fewell, vice president of environmental compliance at United Water and former principal deputy assistant administrator at EPA's Office of Water.
“I think the Farm Bureau has legitimate concerns,” says Fewell. “But even if the lawsuit is successful, I think that the consequences of that will be the EPA making it even more difficult for states and local communities to decide how to achieve their overall load allocations. EPA is very creative and they're going to find other ways to get the same results. I think it would turn out to be more costly to agriculture in the long run.”
Making Non-Point Sources Part of the Solution
It seems clear that EPA intends to put more pressure on non-point sources, particularly animal feeding operations and stormwater dischargers. Traditionally, these polluters haven't fallen under EPA's purview because so-called “non-point sources” such as farms, septic systems and new development (whose pollution washes into a watershed over a diffuse area as opposed to from a single point) aren't regulated under the Clean Water Act's discharge permitting system. As a result, they are responsible for an outsized share of water quality pollution in both the Chesapeake Bay area and in Florida.
But is requiring that states set very prescriptive loading allocations the best way to demand more of non-point sources?
“Use of crop inputs is declining,” he said. “No-till farming has reduced soil erosion and resulted in more carbon being stored in the soil. Nitrogen use efficiency has consistently improved.”
In February, the Natural Resources Conservation Service published a study assessing the impacts of conservation practices on cropland and found that a full 96 percent of cropland in the Chesapeake Bay watershed has implemented at least conservation tillage or erosion control structural practices (like buffers or terracing), though there is much room for improvement in nutrient management.
Beth McGee, a senior scientist for the Chesapeake Bay Fund, points to high participation in conservation practices as a sign that the TMDL's potential impacts on farmers have been greatly exaggerated by the Farm Bureau. Many farmers, she says, are already doing their part to protect water quality, and the TMDL wouldn't add to their obligations.
“The American Farm Bureau is seeding fear,” McGee says. “It's not quite clear yet to some Chesapeake farmers what they need to do to meet the pollution diet. Now they're hearing from their national leaders that this is going to put them out of business and EPA's going to be on their farm. It's a fallacy.
“You can have farms that are making a profit and are compatible with clean water.”
Agriculture's contribution to Bay cleanup could be huge: cutting pollutionAnd achieving pollution reductions from non-point sources can be is usually much cheaper than installing installing more end-of-pipe technology at point-sources mitigation technologies.
Achieving pollution reductions from non-point sources can be much cheaper than installing more end-of-pipe point-source mitigation technologies.
“The District of Columbia is expected by EPA to spend over three billion dollars to reduce stormwater discharges,” says Fewell. “Three billion dollars for a jurisdiction that represents two percent of phosphorus and nitrogen contributions to the Bay. On the other hand, if the district was allowed to use a few hundred million dollars to offset somewhere else in the watershed, by paying for conservation practices on farmland, we'd see a heck of a lot more reduction in nutrients and improvements to the Bay.
“It makes no sense. When you've got EPA dictating to the District of Columbia to reduce stormwater discharges at two billion dollars, that's a lost opportunity.”
What This Means for Markets
A TMDL or state numeric nutrient criteria by themselves simply set water quality targets. Markets for nutrient credits usually rely on these targets to drive trade . Markets, however, require regulatory flexibility about where and how mitigation happens. As the Chesapeake and Florida debates illustrate, the key in implementing water quality standards is finding that sweet spot between holding states and local communities accountable for their share of the cleanup effort and giving them the flexibility to find the most cost-effective way to cut pollution. “It is important to emphasize that [Virginia's watershed implementation] plan is being developed during the worst economy in generations,” Domenech pointed out last week. Market approaches like Maryland's payment for ecosystem services policy , or the nutrient credit exchanges in Virginia and Pennsylvania can help identify the most economically efficient opportunities to achieve TMDL allocations. “I think the biggest strategic mistake that EPA has made is micromanaging the states and how they achieve their load reductions,” says Newell. “EPA has every right to say, ‘In two years we expect you to achieve this amount of progress and if you don't, these are the consequences. But in the interim, states should figure out how to do it. And trading and other market-based approaches really are the most effective tool to help states do so.”
What's Next?
In both the Chesapeake Bay and Florida, the cases are expected to be tied up in the courts for a few years . In the meantime, restoration efforts roll on. State phase II WIPs, with detailed plans for allocating nutrient and sediment load reductions among sources, are due by June 1st of this year, and it remains to be seen how much scope exists for market mechanisms in these plans. The Final Rule in Florida is expected to take effect in April 2012.
What appears clear is that restoration is moving forward in the Chesapeake and in Florida. The real question is how much it's going to cost, who gets to decide how it happens, and whether EPA's strategies will turn out to be workable models for cleanup efforts across the country.
Notice of Lodging of a Stipulated Order for Preliminary Relief Pursuant to the Clean Water Act
Mar 20, 2011 (FIND, Inc. via COMTEX) -- Notice is hereby given that a proposed Stipulated Order for Preliminary Relief was lodged on March 15, 2011, with the United States District Court for the Northern District of California in United States of America et al. v. City of Alameda, et al., Civ. No. C 09-05684 RS.
The United States of America and the People of the State of California ex rel. California State Water Resources Control Board and California Regional Water Quality Control Board, San Francisco Bay Region (together "Water Boards"), and Plaintiff-Intervenor San Francisco Baykeeper ("Baykeeper"), brought claims under Sections 301 and 402 of the Clean Water Act, 33 U.S.C. 1251, et seq., against seven municipal defendants, including the City of Alameda, the City of Albany, the City of Berkeley, the City of Emeryville, the City of Oakland, the City of Piedmont and the Stege Sanitary District (together "Satellite Communities").
The United States, the Water Boards and Baykeeper allege that the Satellite Communities are in violation of the Clean Water Act and their National Pollutant Discharge Elimination System ("NPDES") Permits because they have unlawful sanitary sewer overflows ("SSOs") during wet weather. They also allege that the Satellite Communities are in violation of the operation and maintenance provisions of their NPDES Permits because they contribute excessive flow to treatment systems owned and operated by the East Bay Municipal Utilities District ("EBMUD"), which causes EBMUD to violate the Clean Water Act and its own NPDES permit.
The proposed Stipulated Order for Preliminary Relief complements a January 2009 interim settlement with EBMUD. Among other things, the EBMUD settlement requires EBMUD to study flow from the Satellite Communities and make recommendations to EPA and the Water Boards as to how that flow can be reduced to prevent discharges from three wet weather facilities ("WWFs").
This Stipulated Order for Preliminary Relief represents an interim solution that will move the parties toward a final resolution of the claims in the complaint. It will require the Satellite Communities to gather information that EBMUD will use to determine how to reduce flows to its system. It will also require the Satellite Communities to begin taking steps to reduce inflow and infiltration into their collection systems. This settlement, together with the earlier interim settlement with EBMUD, will provide EBMUD, EPA and the Water Boards with the information necessary to achieve a final settlement that will eliminate discharges from the WWFs.
The Department of Justice will receive for a period of thirty (30) days from the date of this publication comments relating to the proposed Stipulated Order for Preliminary Relief. Comments should be addressed to the Assistant Attorney General, Environment and Natural Resources Division, and either e- mailed to pubcomment-ees.enrd@usdoj.gov or mailed to P.O. Box 7611, U.S. Department of Justice, Washington, DC 20044-7611, and should refer to United States et al. v. City of Alameda et al., DJ No. 90-5-1-1-09361/1.
The proposed Stipulated Order for Preliminary Relief may be examined at the Region 9 Office of the Environmental Protection Agency, 75 Hawthorne Street, San Francisco, CA, 94105. During the public comment period, the proposed Stipulated Order for Preliminary Relief may also be examined on the following Department of Justice Web site, http://www.usdoj.gov/enrd/Consent_Decrees.html . A copy of the Stipulated Order for Preliminary Relief may also be obtained by mail from the Consent Decree Library, P.O. Box 7611, U.S. Department of Justice, Washington, DC 20044-7611, or by faxing or e-mailing a request to Tonia Fleetwood (tonia.fleetwood@usdoj.gov), fax no. (202) 514-0097, phone confirmation number (202) 514-1547. In requesting a copy from the Consent Decree Library, please enclose a check in the amount of $25.00 (25 cents per page reproduction cost) payable to the U.S. Treasury. The check should refer to United States et al. v. City of Alameda, et al., DJ No. 90-5-1-1-09361/1.
Henry Friedman, Assistant Section Chief, Environmental Enforcement Section, Environment and Natural Resources Division.
oxer calls for inspection of california nuclear plants
Senator Boxer Calls for Inspection of California Nuclear Plants
Wednesday, March 16, 2011
Dear Friend:
Today I joined Senator Dianne Feinstein in writing to the Chairman of the Nuclear Regulatory Commission (NRC), Dr. Gregory Jaczko, calling on the NRC to perform a thorough inspection of California's San Onofre and Diablo Canyon nuclear power plants – both of which are located near earthquake faults – in order to evaluate their safety and emergency preparedness. We also asked the NRC to respond to questions about plant design and operations, type of reactor, and preparedness to withstand an earthquake or tsunami.
To read the text of our letter to the NRC, please click here .
This research was funded by the U.S. Department of Energy Microbial Genomics Program and the National Science Foundation Biocomplexity Program.
GSA MOBIS#GS10F-0197R
KeyLogic's GSA Management, Organizational and Business Improvement Services (MOBIS) Schedule Contract No. GS10F-0197R offers a full range of management and consulting services that can improve federal agency performance and their endeavor in meeting mission goals.
Additional Details
MOBIS contractors possess the necessary expertise to facilitate how the federal government responds to a continuous stream of new mandates and evolutionary influences including the President's Management Agenda (PMA); Government Performance and Results Act (GPRA); Federal Acquisition Streamlining Act; OMB Circular A-76; Federal Activities Inventory Reform Act; government reinvention initiatives such as benchmarking and streamlining.
Here are just a few examples of how MOBIS can be used:
Business consulting services, assessments, studies and reports
Facilitation services, conflict resolution, problem solving
Survey design, implementation and analysis
Off-the-shelf and customized MOBIS-related training
Program management, program integration, project management
Informal and formal alternative dispute resolution
WARNING: This system contains U.S. Government Data. Unauthorized use of this system is prohibited.
This computer system, including all related equipment, networks, and network devices (specifically including Internet access) are provided only for authorized U.S. Government use. U.S. Government computer systems may be monitored for all lawful purposes, including to ensure that their use is authorized, for management of the system, to facilitate protection against unauthorized access, and to verify security procedures, survivability, and operational security. Monitoring includes active attacks by authorized U.S. Government entities to test or verify the security of this system. During monitoring, information may be examined, recorded, copied and used for authorized purposes. All information, including personal information, placed or sent over this system may be monitored.
Use of this computer system, authorized or unauthorized, constitutes consent to monitoring of this system. Unauthorized use may subject you to criminal prosecution. Evidence of unauthorized use collected during monitoring may be used for administrative, criminal, or other adverse action. Use of this system constitutes consent to monitoring for these purposes.
Use of this system implies understanding of these terms and conditions.
Note - Per our personal privacy policy, no personal information will be collected on this site beyond that provided by you when you registered for a MAX User ID.
The U.S. Department of Energy (DOE) has announced the five program areas that will benefit from the fourth round of Advanced Research Projects Agency – Energy (ARPA-E) funding. The five programs will receive up to $130 million in funding, which will help advance our nation's clean energy goals. The five program areas that are part of this funding round focus on the following technologies:
Plants Engineered to Replace Oil (PETRO)
High Energy Advanced Thermal Storage (HEATS)
Rare Earth Alternatives in Critical Technologies (REACT)
Green Electricity Network Integration (GENI)
Solar Agile Delivery of Electrical Power Technology (Solar ADEPT)
Projects in the REACT program will focus on finding rare earth substitutes for electric vehicle motors and wind generators. The DOE has committed up to $30 million for REAC projects. Learn more about the latest round of funding and the five new program areas by visiting the ARPA-E website .
Below you will find the MAX Community collaboration groups, Government-wide Communities, and MAX applications for which you are registered.
Welcome to the Emergency Management Strategic Foresight Initiative (SFI). The purpose of SFI is to bring the emergency management community together to better understand how the world is changing and how those changes may affect the future environment in which emergency managers will operate. This community-wide effort will help identify both strategic opportunities and challenges from which the community could significantly benefit.
This online community is intended to serve as a collaboration space for those who wish to participate in this initiative, and participants agree to abide by the User Agreement, available by clicking here .
To learn more about SFI, click here .To start contributing now, go to the "Forum" tab, or click here .
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PETITORY. That which demands or petitions that which has, the, quality of a prayer or petition; a right to demand.
2. A petitory suit or action is understood to be one in which the mere title to property is to be enforced by means of a demand or petition, as distinguished from a possessory suit. 1 Kent, Com. 371.
3. In the Scotch law, petitory actions are so called, not because something is sought to be awarded by the judge, for in that sense all actions must be petitory, but because some demand is made upon the defender, in consequence either of the right of property or credit in the pursuer. Thus, actions for restitution of movables, actions of pounding, of forthcoming, and indeed all personal actions upon contracts, or quasi contracts, which the Romans called condictiones, are petitory. Ersk. Inst. b. 4, t. 1, n. 47.
A legal proceeding by which the plaintiff seeks to establish and enforce his or her title to property, as distinguished from a possessory proceeding, where the plaintiff's right to possession is the issue. Such petitory actions must be based on a claim of legal title to the property, as opposed to a mere equitable interest in it.
In admiralty , suits to try title to property independent of questions concerning possession.
Judge Lindley says: "A mining claim perfected since the act of 1866 has the effect of a grant from the United States of the present and exclusive possession of the lands located. The owner of such a location is entitled to the exclusive possession and enjoyment, against every one, including the United States itself." Lindley on Mines, sec. 539
"The powers not delegated to the United States by the Constitution...are reserved to the States respectively, or to the people." Amendment X. See infra, secs. 1262 et seq., 1323 et seq., public service.
Executive Order 12088—Federal Compliance with Pollution Control Standards
SOURCE: The provisions of Executive Order 12088 of October 13,1978, appear at 43 FR 47707, 3 CFR, 1978 Comp.,
p. 243, unless otherwise noted.
1-103. "Applicable pollution control standards" means the same substantive, procedural, and other
requirements that would apply to a private person.
1-2. Agency Coordination.
1-201. Each Executive agency shall cooperate with the Administrator of the Environmental Protection
Agency, hereinafter referred to as the Administrator, and State, interstate, and local agencies in the
prevention, control, and abatement of environmental pollution.
1-202. Each Executive agency shall consult with the Administrator and with State, interstate, and local
agencies concerning the best techniques and methods available for the prevention, control, and abatement of
environmental pollution.
1-3. Technical Advice and Oversight.
1-301. The Administrator shall provide technical advice and assistance to Executive agencies in order
to ensure their cost effective and timely compliance with applicable pollution control standards.
1-302. The administrator shall conduct such reviews and inspections as may be necessary to monitor
compliance with applicable pollution control standards by Federal facilities and activities.
1-4. Pollution Control Plan. [Note: Sec. 1.4 was revoked by Sec. 901, Executive Order 13148, 65 FR
24604, April 26, 2000, signed April 21, 2000 ]
1-401. Each Executive agency shall submit to the Director of the Office of Management and Budget,
through the Administrator, an annual plan for the control of environmental pollution. The plan shall provide
for any necessary improvement in the design, construction, management, operation, and maintenance of
Federal facilities and activities, and shall include annual cost estimates. The Administrator shall establish
guidelines for developing such plans.
1-402. In preparing its plan, each Executive agency shall ensure that the plan provides for compliance
with all applicable pollution control standards.
1-403. The plan shall be submitted in accordance with any other instructions that the Director of the
Office of Management and Budget may issue.
5. MATTERS NOT COVERED BY THE CONSENT DECREE.
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
practicable.
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.
CERCLA explicitly states in several different sections that it
does not preempt state law. The general saving clause, § 152(d), provides in
part:
Nothing in this chapter shall affect or modify in any way the
obligations or liabilities of any person under other Federal or State
law, including common law, with respect to releases of hazardous
substances or other pollutants or contaminants.
42 U.S.C. § 9652(d). Section 107(j), the section of the Act that creates liability
for clean-up costs, provides in pertinent part:
Nothing in this paragraph shall affect or modify in any way the
obligations or liability of any person under any other provision of
State or Federal law, including common law, for damages, injury, or
loss resulting from a release of any hazardous substance or for
removal or remedial action or the costs of removal or remedial
action of such hazardous substance.
42 U.S.C. § 9607(j). The savings clause of CERCLA's express contribution
provision, § 113(f)(1), states in relevant part:
Nothing in this subsection shall diminish the right of any person to
bring an action for contribution in the absence of a civil action under
section 9606 of this title or section 9607 of this title.
42 U.S.C. § 9613(f)(1). And finally, § 114(a), the section of CERCLA that deals
with CERCLA's relationship to other laws, states:
Nothing in this chapter shall be construed or interpreted as
preempting any State from imposing any additional liability or
requirements with respect to the release of hazardous substances
within such State.
42 U.S.C. § 9614(a). The statute is therefore clear on its face that Congress did
not intend CERCLA to preempt state law.
It is also clear from case law that CERCLA and the SWDA co-exist as
regulatory regimes. See Cooper, 543 U.S. at 166–67 (holding that the portion of
§ 113(f)(1) cited above “rebuts any presumption that the express right of
contribution provided by the enabling clause is the exclusive cause of action for
contribution available to a [potentially responsible party]”); MSOF Corp. v.
Exxon Corp., 295 F.3d 485, 491 (5th Cir. 2002) (“This court and other courts have
construed the CERCLA saving clauses in accordance with their plain meanings
and have held that they preserve parties' rights arising under state law.”).
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
In discussing section 406 of this Act on the floor of the Senate, Chairman Stafford said:
"Until now, mitigation for land turned over to water development projects came about on a hit-or-miss basis . . . For the first time, mitigation will have to go forward with the project requiring the mitigation, not afterward. This bill requires that the Corps develop mitigation plans for each and every project, or tell the American people why such work is not justified. . . In addition, this section establishes a new continuing authority, funded at $30 million a year. This authority will allow the Corps to go back and repair the fish and wildlife damage that its existing projects have produced."
Watershed Protection and Flood Prevention Act
Watershed Protection and Flood Prevention Act (16 U.S.C. 1001-1009, Chapter 18; P.L. 566, August 4, 1954; 68 Stat. 666). As amended by:
Chapter 1018, August 7, 1956; 70 Stat. 1088; P.L. 85-624, August 12, 1958; 72 Stat. 567; P.L. 85-865, September 2, 1958; 72 Stat. 1605; P.L. 86-468, May 13, 1960; 74 Stat. 131; P.L. 86-545, June 29, 1960; 74 Stat. 254; P.L. 87-170, August 30, 1961; 75 Stat. 408; P.L. 87-639, September 5, 1962; 76 Stat. 438; P.L. 87-703, September 27, 1962; 76 Stat. 608; P.L. 89-337, November 8, 1965; 79 Stat. 1300; P.L. 90-361, June 27, 1968; 82 Stat. 250; P.L. 92-419, August 30, 1972; 86 Stat. 667; P.L. 95-113, September 29, 1977; 91 Stat. 1022; P.L. 97-98, December 22, 1981; 95 Stat. 1332; P.L. 99-662, November 17, 1986; 100 Stat. 4196;
Under this Act, the Soil Conservation Service at the Department of Agriculture provides planning assistance and construction funding for projects constructed by local sponsors, often in the form of flood control districts. Restrictions on projects include: the size of the watershed must be 250,000 acres or less; no single structure may provide more than 12,500 acre-feet of flood water retention; no single structure may provide more than 25,000 acre-feet of total capacity; and projects with costs greater than $5 million or with structures with total capacities greater than 25,000 acre-feet must be approved by Congress.
The original 1954 statute sought cooperation between the Federal Government and States and localities to prevent flood damages. The Secretary of Agriculture was authorized to construct flood protection measures below a certain acre-foot limit. Such initiatives were to be cost-shared and localities were required to contribute rights-of-way. The law also required that the Secretary of the Interior be consulted regarding plans which affect reclamation, irrigation or public lands under the Secretary of the Interior. Related views were to be submitted with project plans to the Congress.
Amendments enacted in 1956 imposed acre-foot ceilings on projects authorized to be undertaken by the Secretary of Agriculture without Congressional approval. Projects for which the Federal contribution was estimated to exceed $250,000 or which exceeded 2500 acre-feet were to be submitted to the Secretary of the Interior for review if they involved reclamation or irrigation lands, or public lands or wildlife under the Secretary's jurisdiction. The views of the Department of the Interior were required to accompany the report to Congress and regulations to coordinate activities of the Departments of Agriculture and Interior were mandated. In addition, loans to localities were authorized and the provisions of the Act were extended to apply to Hawaii, Alaska, Puerto Rico, and the Virgin Islands.
Amendments to the Fish and Wildlife Coordination Act in 1958 (P.L. 85-624) also amended this statute to require the Secretary of Agriculture to notify the Secretary of the Interior regarding projects in order that the Secretary of the Interior could prepare a fish and wildlife report to be incorporated in project plans. "Full consideration" was to be given to such reports by the Secretary of Agriculture; however, the Secretary of Agriculture retained the discretion to adopt fish and wildlife recommendations which are "technically and economically feasible." Costs for related surveys and reports are to be borne by the Secretary of the Interior. Amendments adopted later that year (P.L. 85-865) added fish and wildlife development as an aspect of flood control projects to be constructed.
Public Law 86-468, enacted in 1960, provided additional authority to the Secretary of Agriculture to make loans, and P.L. 86-532 further clarified the responsibility of localities to provide easements and rights-of-way for projects. Related joint surveys between the Secretary of Agriculture and the Secretary of the Army were authorized by P.L. 87-639 in 1962.
Additional amendments enacted in 1962 (P.L. 87-703) stipulated project cost-sharing for lands, easements and rights-of-way in instances for which localities agree to operate and maintain a reservoir or other area for fish and wildlife or recreational development. Similar to previous legislation, the views of the Secretary of the Interior were to be solicited and submitted to Congress for projects which include irrigation, reclamation, public lands or wildlife under the jurisdiction of the Secretary of the Interior.
Public Law 89-337 increased the acre-foot size capacity for projects authorized to be constructed by the Secretary of Agriculture. Technical amendments were enacted in 1968 (P.L. 90-361).
Major amendments were enacted in 1972 (P.L. 92-419). Conservation of water and preservation of the environment were added as general purposes for authorized projects. (Project purposes include: 1) flood prevention, 2) the conservation, utilization, development, and disposal of water, and 3) the conservation and proper utilization of land.) Ten-year agreements with local landowners for changes in cropping systems and land use were authorized to conserve waters, wildlife and recreation. In addition, this law reiterated provisions for notification of the Secretary of the Interior when public lands or wildlife would be affected and for incorporation of the Secretary's views in reports transmitted to Congress.
The cost ceiling for authorized projects was increased to $1 million in 1977 (P.L. 95-113) and to $5 million in 1981 (P.L. 97-98). The 1981 amendments added Indian tribes as an eligible entity and limited Federal cost sharing to 50/50 for land, easements or rights-of-way acquired by the local organization for mitigation of fish and wildlife habitat losses. This public law also stipulated that any related land acquisition would not be limited to the "confines of the watershed project boundaries."
The 1986 Water Resources Development Act (P.L. 99-662) also amended the Watershed Protection and Flood Prevention Act to stipulate that projects submitted to Congress for authorization after July 1, 1987, must contain benefits to agriculture that account for at least 20 percent of the total project benefits.
P.L. 101-624, approved November 28,1990, (104 Stat. 3616) added language to allow for completion of water quality improvement projects under this Act. It also added cost share assistance language making loans available for acquisition of perpetual wetland/floodplain easements for flood management and storage purposes, for the purposes of water quality/quantity improvement, and to provide fish & wildlife habitat. The cost share was set at 50 percent.
P.L. 104-127, approved April 4, 1996, (110 Stat. 1151) changed language regarding the terms of loans to local organizations and state/local governments for carrying out projects under this Act. Also, this amendment set a cap on the amount of any loan for a single project at $10M.
Salmon and Steelhead Conservation and Enhancement Act
This Act, Salmon and Steelhead Conservation and Enhancement Act -- Public Law 96-561, approved December 22, 1980 (94 Stat. 3299; 16 U.S.C. 3301-3371) established a salmon and steelhead enhancement program to be jointly administered by the Departments of Commerce and Interior, with appropriations authorized at $126,500,000.
The Act established a Washington State and Columbia River conservation area and directed the Secretary of Commerce to establish an advisory committee of representatives from Washington and Oregon, the Washington and Columbia River tribal bodies, the Pacific Fisheries Management Council, and the National Marine Fisheries Service. It also directed that a report be submitted to the Secretary of Commerce and Congress, and the Secretary of the Interior was authorized to establish a grant program for each conservation area.
Title II, entitled the "American Fisheries Promotion Act," authorized emergency assistance loans, accelerated fisheries research and development, extended the Federal fishing vessel obligation guarantee program under Title XI of the Merchant Marine Act, and redefined regulations governing foreign fishing in U.S. waters for steelhead and salmon.
Water Resources Planning Act
Water Resources Planning Act (42 U.S.C. 1962a - 1962(a)(4)(e); P.L. 89-80; July 22, 1965; 79 Stat. 245) as amended by:
P.L.94-112; October 16, 1975; 89 Stat. 575; P.L. 95-404; September 30, 1978; 92 Stat. 864; and P.L. 97-449; January 12, 1983; 96 Stat. 2441.
Title I of the 1965 Water Resources Planning Act established a Water Resources Council to be composed of Cabinet representatives, including the Secretary of the Interior. Title II established River Basin Commissions and stipulated their duties and authorities.
The Council was empowered to maintain a continuing assessment of the adequacy of water supplies in each region of the U.S. In addition, the Council was mandated to establish principles and standards for Federal participants in the preparation of river basin plans and in evaluating Federal water projects. Upon receipt of a river basin plan, the Council was required to review the plan with respect to agricultural, urban, energy, industrial, recreational and fish and wildlife needs.
Title III established a grant program to assist States in participating in the development of related comprehensive water and land use plans.
Amendments enacted in 1975 (P.L.94-112) added several Cabinet representatives to the Council, including the Administrator of the Environmental Protection Agency, and authorized appropriations through FY 1978.
The 1978 amendments (P.L.95-404) authorized appropriations though fiscal year 1979 and stipulated the apportionment of Federal planning monies for certain specific tasks, including the Columbia River Estuary Special Study; the New England Port and Harbor Study; the Hudson River Basin Level B study; and the Connecticut River Basin.
Amendments enacted in 1983 as part of the Department of Transportation and Motor Carrier Safety Act (P.L. 97-449) required that the Council develop standards and criteria for economic evaluation of water resource projects, and defined what would constitute the primary direct navigation benefits of a water resource project.
Public Law 100-460, approved October 1, 1988, (102 Stat. 2262) stipulates that none of the funds appropriated through this or any other Act can be used to alter the method of computing normalized prices for agricultural commodities for use by Federal agencies in evaluating water resources development projects undertaken with Federal funds.
Resource Conservation and Recovery Act
Resource Conservation and Recovery Act (RCRA) -- Public Law 94-580, October 21, 1976, (42 U.S.C. 6901-6992; 90 Stat. 2795), as amended by P.L. 95-609 (92 Stat. 3081), P.L. 96-463 (94 Stat. 2055), P.L. 96-482 (94 Stat. 2334), P.L. 98-616 (98 Stat. 3224), P.L. 99-339 (100 Stat. 654), P.L. 99-499 (100 Stat. 1696), P.L. 100-556 (102 Stat. 2779)
P.L. 100-582 (102 Stat. 2951), and P.L. 104-208 (110 Stat. 3009) regulates the treatment, transportation, storage, and disposal of solid and hazardous wastes. The Service is required to comply with standards for wastes generated at its facilities. The key provisions include:
Subtitle C. Identification and listing of hazardous waste and standards applicable to hazardous waste -- Requires reporting of hazardous waste, permitting for storage, transport, and disposal, and it includes provisions for oil recycling and Federal hazardous waste facilities inventories.
Subtitle D. Management for solid waste, including landfills.
Subtitle F. Applicability of Federal, State, and local laws to Federal agencies. Procurement (recycling) provisions.
Subtitle G. Citizen suits, judicial review, and enforcement authority.
Subtitle I. Management, replacement, and monitoring of underground storage tanks.
Federal Water Pollution Control Act (Clean Water Act)
Federal Water Pollution Control Act (Clean Water Act) ( 33 U.S.C. 1251 - 1376 ; Chapter 758; P.L. 845, June 30, 1948; 62 Stat. 1155). As amended by:
Chapter 928, P.L. 580, July 17, 1952; 66 Stat. 755; Chapter 518, P.L. 660, July 9, 1956; 70 Stat. 498; P.L. 86-70, June 25, 1959; 73 Stat. 148; P.L. 86-624, July 12, 1960; 74 Stat. 417; P.L. 87-88, July 20, 1961; 75 Stat. 204; P.L. 89-753, November 3, 1966; 80 Stat. 1246; P.L. 91-224, April 3, 1970; 84 Stat. 91; P.L. 92-50, July 9, 1971; 85 Stat. 124; P.L. 92-138, October 14, 1971; 85 Stat. 379; P.L. 92-240, March 1, 1972; 86 Stat. 47; P.L. 92-500, October 18, 1972; 86 Stat. 816; P.L. 93-207, December 28, 1973; 87 Stat. 906; P.L. 93-243, January 2, 1974; 87 Stat. 1069; P.L. 93-593, January 2, 1975; 88 Stat. 1924; P.L. 94-238, March 23, 1976; 90 Stat. 250; P.L. 94-369, July 22, 1976; 90 Stat. 1011; P.L. 94-558, October 19, 1976; 90 Stat. 2639; P.L. 95-217, December 27, 1977; 91 Stat. 1566; P.L. 95-576, November 2, 1978; 92 Stat. 2467; P.L. 96-483, October 21, 1980; 94 Stat. 2360; P.L. 97-357, October 19, 1982; 96 Stat. 1712; P.L. 97-440, January 8, 1983; 96 Stat. 2289; P.L. 100-4, February 4, 1987; 101 Stat. 7
The original 1948 statute (Ch. 758; P.L. 845), the Water Pollution Control Act, authorized the Surgeon General of the Public Health Service, in cooperation with other Federal, state and local entities, to prepare comprehensive programs for eliminating or reducing the pollution of interstate waters and tributaries and improving the sanitary condition of surface and underground waters. During the development of such plans, due regard was to be given to improvements necessary to conserve waters for public water supplies, propagation of fish and aquatic life, recreational purposes, and agricultural and industrial uses. The original statute also authorized the Federal Works Administrator to assist states, municipalities, and interstate agencies in constructing treatment plants to prevent discharges of inadequately treated sewage and other wastes into interstate waters or tributaries.
Since 1948, the original statute has been amended extensively either to authorize additional water quality programs, standards and procedures to govern allowable discharges, funding for construction grants or general program funding. Amendments in other years provided for continued authority to conduct program activities or administrative changes to related activities.
This latter set of amendments included:
Extension of appropriations authority through FY 1956 (Ch. 927; P.L. 579)
Continued authority to develop comprehensive programs for water pollution control, to provide grants to States and interstate agencies to assist in developing such programs and to construct treatment facilities, and to establish enforcement measures for pollution of interstate waters (Ch. 518; P.L. 660)
Extension of financial assistance to the State of Alaska (P.L. 86-70)
Redefinition of eligible entities to include the 50 States and the District of Columbia (P.L. 86-624)
Extension of the FWPCA for three months (P.L. 92-50)
Extension of the FWPCA for one month (P.L. 92-138)
Extension of certain provisions through June 30, 1972, and other provisions through April 30, 1972 (P.L. 92-240)
Extension of the FWPCA through FY 1974 (P.L. 93-207)
Establishment of the formula to allocate treatment works construction grants (P.L. 93-243)
Extension of the FWPCA through FY 1975 (P.L. 93-593)
Increase in the authorization level for the National Study Commission (P.L. 94-238)
Establishment of a related municipal public works capital development and investment program (P.L. 94-369)
Authorization for a loan guarantee program for construction of treatment works (P.L. 94-558)
Additional program authorizations (P.L. 95-576)
Extension of certain provisions through 1982 as well as authority for demonstration programs to remove PCB's from the Hudson River and to clean-up state-owned abandoned mines that can be used as hazardous waste disposal sites (P.L. 96-483)
Clarification of revenue distribution to the Commonwealth of Puerto Rico (P.L. 97-357)
Modification of effluent limitations relating to biochemical oxygen demand and pH (P.L. 97-440)
Major amendments were enacted in 1961, 1966, 1970, 1972, 1977, and 1987. The Federal Water Pollution Control Act Amendments of 1961 (P.L. 87-88) stipulated that Federal agencies consider during the planning for any reservoir, storage to regulate streamflow for the purpose of water quality control ( 33 U.S.C. 1252 ). Authority was provided to the Secretary of Health, Education, and Welfare to undertake research programs related to determining effects of pollutants and treatment methods and to assess water quality in the Great Lakes. Measures which could be taken by the Secretary, at the request of a State, to ward against pollution of interstate or navigable waters were also specified ( 33 U.S.C. 1254(f) ).
The 1966 amendments (P.L. 89-753), entitled the Clean Water Restoration Act of 1966, authorized the Secretary of Interior, in cooperation with the Secretary of Agriculture and the Water Resources Council, to conduct a comprehensive study of the effects of pollution, including sedimentation, in the estuaries and estuarine zones of the U.S. on fish and wildlife, sport and commercial fishing, recreation, water supply and power, and other specified uses ( 33 U.S.C. 466 ).
The study report, due to the Congress three years following enactment, was to contain: 1) an analysis of the importance to estuaries to the economic and social well-being of the U.S. and of the effects of pollution upon the use and enjoyment of the estuaries; 2) a discussion of the major economic, social, and ecological trends occurring in the estuarine zones of the nation; 3) recommendations for a comprehensive national program for the preservation, study, use and development of estuaries, and the respective responsibilities which should be assumed by Federal, State, and local governments and by public and private interests.
Procedures for abating domestic pollution which damages the health or welfare of citizens in a foreign country were also outlined ( 33 U.S.C. 466 ). In addition, the amendments prohibited individuals, except as permitted by regulations issued by the Secretary of Interior, from discharging oil into the navigable waters of the U.S.
The Reorganization Plan No. 3 of 1970 (December 2, 1970) created the Environmental Protection Agency, abolished the Federal Water Quality Administration in the Department of Interior, and transferred to EPA all functions formerly assigned to the Secretary of Interior and the Department of Interior which had been administered through the Federal Water Quality Administration.
The 1970 amendments (P.L. 91-224), cited as the Water Quality Improvement Act of 1970, further amended the prohibitions on discharges of oil to allow such discharges only when consistent with regulations to be issued by the President and where permitted by Article IV of the 1954 International Convention for the Prevention of Pollution of the Sea by Oil ( 33 U.S.C. 1321 ). In issuing regulations, the President was authorized to determine quantities of oil which would be harmful to the public health or welfare of the U.S., including, but not limited to, fish, shellfish, and wildlife, as well as public and private property, shorelines and beaches.
The President was also authorized to publish a National Contingency Plan to provide for efficient and coordinated action to minimize damage from oil discharges, including containment, dispersal, and removal. Related duties were to be assigned to various Federal agencies. The 1970 amendments also mandated that the President develop regulations to define substances other than oil as hazardous substances.
In addition, the 1970 amendments required that performance standards be developed for marine sanitation devices ( 33 U.S.C. 1322 ), authorized demonstration projects to control acid or other mine water pollution ( 33 U.S.C. 1257a ) and to control water pollution within the watersheds of the Great Lakes ( 33 U.S.C. 1258 ). The amendments described the responsibility of Federal agencies to ensure that any Federal facilities are operated in compliance with applicable water quality standards ( 33 U.S.C. 1323 ).
Applicants for Federal permits or licenses for activities involving discharges into navigable waters are to provide a State certification that the proposed activity will not violate applicable water quality standards ( 33 U.S.C. 1341 ). Licenses and permits may not be granted if the State or interstate certification has been denied.
The Federal Water Pollution Control Act Amendments of 1972 (P.L. 92-500) stipulated broad national objectives to restore and maintain the chemical, physical, and biological integrity of the Nation's waters ( 33 U.S.C. 1251 ). Provisions included a requirement that the Federal Power Commission not grant a license for a hydroelectric power project to regulate streamflow for the purpose of water quality unless certain conditions are satisfied ( 33 U.S.C. 1252 ).
In addition, the amendments significantly expanded provisions related to pollutant discharges. These included requirements that limitations be determined for point sources which are consistent with State water quality standards, procedures for State issuance of water quality standards, development of guidelines to identify and evaluate the extent of nonpoint source pollution, water quality inventory requirements, as well as development of toxic and pretreatment effluent standards ( 33 U.S.C. 1311 - 1313 and 33 U.S.C. 1315 - 1317 ).
Additional provisions further defined liability for discharges of oil and hazardous substances and the Federal role in clean-up operations ( 33 U.S.C. 1321 ) and established a Clean Lakes Program.
Section 402 of the 1972 amendments established the National Pollutant Discharge Elimination System (NPDES) to authorize EPA issuance of discharge permits ( 33 U.S.C. 1342 ). Section 403 stipulated guidelines for EPA to issue permits for discharges into the territorial sea, the contiguous zone, and ocean waters further offshore ( 33 U.S.C. 1343 ).
Important provisions were contained in Section 404 of the amendments. This section authorized the Corps of Engineers to issue permits for the discharge of dredged or fill material into navigable waters at specified disposal sites ( 33 U.S.C. 1344 ). EPA was authorized to prohibit the use of a site as a disposal site based on a determination that discharges would have an unacceptable adverse effect on municipal water supplies, shellfish beds and fishery areas, wildlife, or recreational uses.
The 1977 amendments, the Clean Water Act of 1977 (P.L. 95-217), again extensively amended the Act. Of particular significance were the following provisions:
Development of a "Best Management Practices" Program as part of the state areawide planning program ( 33 U.S.C. 1288 )
Authority for the Fish and Wildlife Service to provide technical assistance to states in developing "best management practices" as part of its water pollution control programs ( 33 U.S.C. 1288(i)(1) )
Authorization of $6 million for the Secretary of Interior to complete the National Wetlands Inventory by December 31, 1981 ( 33 U.S.C. 1288(i)(2) )
Authority for the Corps of Engineers to issue general permits on a state, regional, or national basis for any category of activities which are similar in nature, will cause only minimal environmental effects when performed separately, and will have only minimal cumulative adverse impact on the environment ( 33 U.S.C. 1344(e) )
Exemption of various activities from the dredge and fill prohibition including normal farming, silviculture, and ranching activities ( 33 U.S.C. 1344(f) )
Procedures for State assumption of the regulatory program, including a requirement that the Director of the Fish and Wildlife Service be involved in an advisory role regarding transfer of the program to the State ( 33 U.S.C. 1344 (g-m) )
Requirement for development of agreements to minimize duplication and delays in permit issuance ( 33 U.S.C. 1344 (g) )
The Water Quality Act of 1987 (P.L. 100-4) provided the most recent series of amendments to the original statute. Provisions included:
Authority to continue the Chesapeake Bay Program and to establish a Chesapeake Bay Program Office ( 33 U.S.C. 1267 ). The original authorization for this program, the Chesapeake Bay Research Coordination Act of 1980 (P.L. 96-460), expired on September 30, 1984
Establishment of a Great Lakes National Program Office within EPA and a Great Lakes Research Office within NOAA ( 33 U.S.C. 1268 ). Related Federal agencies, including the Fish and Wildlife Service, are required to submit annual reports to EPA regarding agency activities affecting compliance with the 1978 Great Lakes Water Quality Agreement
Requirement that EPA, in conjunction with the Fish and Wildlife Service and NOAA, conduct research, as part of the Great Lakes Program, on the harmful effects of pollutants on the general health and welfare ( 33 U.S.C. 1254 ). Such research should emphasize the effect bioaccumulation of these pollutants in aquatic species has upon reducing the value of aquatic commercial and sport fisheries
Requirement that states develop strategies for toxics cleanup in waters where the application of "Best Available Technology" (BAT) discharge standards is not sufficient to meet State water quality standards and support public health ( 33 U.S.C. 1314 )
Increase in the penalties for violations of Section 404 permits ( 33 U.S.C. 1344 )
Provisions that additional State reporting requirements on water quality of lakes including methods to mitigate the harmful effects of high acidity ( 33 U.S.C. 1324 ). Authorization for EPA to undertake a water quality demonstration program for lakes with an authorization of $15 million to States, with funds to be distributed based on relative acidity problems
Establishments of $400 million program for States to develop and implement, on a watershed basis, nonpoint source management and control programs with EPA responsibility for grant administration, program approval, and periodic program evaluation ( 33 U.S.C. 1329 )
Authorization for a State/Federal cooperative program to nominate estuaries of national significance and to develop and implement management plans to restore and maintain the biological and chemical integrity of estuarine waters ( 33 U.S.C. 1330 ). Authorization to NOAA to conduct water quality research and trends assessment in estuaries of national significance
Requirement that EPA study and monitor the water quality effects attributable to the impoundment of water by dams ( 33 U.S.C. 1375 )
Endangered Species Act of 1973
Endangered Species Act of 1973 ( 16 U.S.C. 1531-1544 , 87 Stat. 884), as amended -- Public Law 93-205, approved December 28, 1973, repealed the Endangered Species Conservation Act of December 5, 1969 (P.L. 91-135, 83 Stat. 275). The 1969 Act had amended the Endangered Species Preservation Act of October 15, 1966 (P.L. 89-669, 80 Stat. 926).
The 1973 Act implemented the Convention on International Trade in Endangered Species of Wild Fauna and Flora (T.I.A.S. 8249), signed by the United States on March 3, 1973, and the Convention on Nature Protection and Wildlife Preservation in the Western Hemisphere (50 Stat. 1354), signed by the United States on October 12, 1940.
Through federal action and by encouraging the establishment of state programs, the 1973 Endangered Species Act provided for the conservation of ecosystems upon which threatened and endangered species of fish, wildlife, and plants depend. The Act:
authorizes the determination and listing of species as endangered and threatened;
prohibits unauthorized taking, possession, sale, and transport of endangered species;
provides authority to acquire land for the conservation of listed species, using land and water conservation funds;
authorizes establishment of cooperative agreements and grants-in-aid to States that establish and maintain active and adequate programs for endangered and threatened wildlife and plants;
authorizes the assessment of civil and criminal penalties for violating the Act or regulations; and
authorizes the payment of rewards to anyone furnishing information leading to arrest and conviction for any violation of the Act or any regulation issued thereunder.
Section 7 of the Endangered Species Act requires Federal agencies to insure that any action authorized, funded or carried out by them is not likely to jeopardize the continued existence of listed species or modify their critical habitat.
Public Law 94-325, approved June 30, 1976, (90 Stat. 724) extended and increased the authorization of appropriations in section 15 of the 1973 Act.
Public Law 94-359, approved July 12, 1976, (90 Stat. 911), exempted from the prohibitions in the Act and under certain conditions, whale parts and products lawfully held prior to December 28, 1973. It also provided other amendments to facilitate administrative processes in emergency situations, clarified enforcement procedures, allowed disposal of forfeited and abandoned property, and clarified the definition of "commercial activity."
The authorization of appropriations for Federal grants-in-aid to States was extended by P.L. 95-212, December 19, 1977 (91 Stat. 1493).
Public Law 95-632, signed by the President on November 10, 1978, (92 Stat. 375) extended through March 31, 1980, the appropriations authority under section 15 and made extensive revisions to the 1973 law. A Cabinet-level Endangered Species Committee was established as part of a two-tiered process whereby Federal agencies may obtain exemptions from the requirements of section 7. The Tellico Dam project in Tennessee and the Grayrocks project in Wyoming were to receive expedited consideration by the Committee.
The Secretary of Defense is authorized to specify exemptions from the Act for reasons of national security. The consultation process under section 7 was formalized and strengthened, and now includes the requirement that Federal agencies prepare biological assessments in cases where the Secretary of the Interior has advised that a listed species may be present.
The 1978 amendments also oblige the Secretary to consider the economic impact of designating critical habitat, and to review the list of endangered and threatened species every five years. Public notification and hearing requirements, prior to the listing of a species or its habitat, are specified.
Other changes made by the 1978 statute include: a provision for cooperative agreements with States for the conservation of endangered and threatened species of plants, exemptions from the Act's requirements for the progeny of legally held captive raptors and antique articles made before 1830, revision of the penalty provisions of the Act, and a change in the definition of "species" to limit the application of the term "population" to include vertebrates only.
Public Law 96-69 ( 40 U.S.C. 174(b)-l and 43 U.S.C. 377a ), the Energy and Water Development Appropriations Act for fiscal year 1980, approved September 25, 1979, (93 Stat. 437) exempted Tellico Dam in Tennessee from the Endangered Species Act and authorized completion of the project despite the threat to the endangered snail darter. Additional amendments were enacted in P.L. 96-246, May 23, 1980 (94 Stat. 348) and P.L. 97-79, November 16, 1981 (96 Stat. 1079).
Public Law 96-159 ( 16 U.S.C. 1533 , 93 Stat. 1255-1230), approved December 28, 1979, extended and increased the authorization of appropriations through September 30, 1982. It designated the Secretary of the Interior, acting through the Fish and Wildlife Service, as the Endangered Scientific Authority for implementation of CITES. It also created an International Convention Advisory Commission, and extended the scrimshaw amendments for three years.
Public Law 97-304, approved October 13, 1982, (96 Stat. 1411-1417, 1421, 1422, 1425) extended the annual authorizations under the Act through FY 1985 at the following levels: section 15 (general) -- $27 million; section 6 (grants-in-aid) -- $6 million; section 7 (Exemption Committee) -- $600,000. It also extended the Secretary's authority and overturned the "bobcat" decision of the U.S. Court of Appeals for the District of Columbia.
Public Law 98-327, approved June 25, 1984, (98 Stat. 270) authorizes the Secretary to use money from fines and forfeitures collected under the Lacey Act and the Endangered Species Act to pay for the temporary care of animals and plants seized by our law enforcement agents.
Public Law 98-364, July 17, 1984, (98 Stat. 442), as amended, clarified provisions concerning marine mammals (see Marine Mammal Protection Act of 1972) and provided for the translocation of California sea otters.
Public Law 99-625, approved November 7, 1986, (100 Stat. 3502) authorized the Secretary of the Interior to develop and implement a sea otter translocation plan, to be administered by the Fish and Wildlife Service, specifying statistics of sea otters to be translocated, manner of capture, relocation zone, and measures to contain the population. The 1986 amendments declared that a member of an experimental population shall be treated as "threatened" and provided that section 7 of the Endangered Species Act applies. The amendments also provided for non-defense agency actions in the translocation zone, and for incidental take in the management zone. (See Wetlands Loan Act.)
Although the funding authority for the Act lapsed for Fiscal Years 1986 through 1988, the Senate Appropriations Committee reports (S. Rept. 99-397 and S. Rept. 100-165) included language indicating that funding was to be provided and the provisions of the Act were to continue to be carried out.
Public Law 100-478, enacted October 7, 1988, (102 Stat 2306) included the following provisions:
Redefines the definition of "person" to clarify law applies to municipal corporations.
Provides equal authority to Departments of Interior and Agriculture for enforcing restrictions on import/export of listed plants.
Requires the Secretary of the Interior to monitor all petitioned species that are candidates for listing and specifies emergency listing authority.
Directs the Secretary of Interior to develop and review recovery plans for listed species without showing preference for any taxonomic group.
Establishes recovery plan criteria for listed species.
Requires a status report to Congress on recovery plans, every two years.
Provides for public review of new or revised recovery plans prior to final approval.
Requires five-year monitoring for species that have recovered and been delisted.
Clarifies the use of funds allocated to the States and establishes criteria for allocations.
Directs that deposits from the General Fund amounting to 5 percent of Pittman-Robertson/Wallop-Breaux Federal Aid accounts be made each year into a special cooperative Endangered Species Conservation Fund.
Prohibits damage or destruction of endangered plants on Federal lands and on private lands when knowingly in violation of State law.
Increased by a factor of two-and-one-half the civil and criminal penalties provided under section 11.
Required the Secretary of Commerce to contract for a National Academy of Sciences study for conservation and status of sea turtles to be completed and reported to Congress by April 1, 1989; and delayed implementation of Turtle Excluder Device regulations until May 1, 1990, inshore and May 1, 1989, offshore. Provided for establishment of a Sea Turtle Coordinator. Authorized $1.5 million through FY89 to carry out the sea turtle provisions.
Requires Administrator of the Environmental Protection Agency in cooperation with Secretaries of Interior and Agriculture, to conduct a study for identifying reasonable and prudent means to implement endangered species pesticide labeling program, and to report to Congress one year after enactment of this Act.
Allows further renewal up to five years for certificates of exemption of pre-Act scrimshaw.
Requires annual accounting to Congress, starting January 15, 1990, of reasonably identifiable expenditures, species-by-species, made for conserving Endangered or Threatened species; and also requests an accounting by those States receiving section 6 grants.
Reauthorizes appropriations for Fiscal Years 1988 through 1992, as follows:
Department of Interior -- $35,000,000 for FY88; $35,500,000 for FY89; $38,000,000 for FY90; $39,500,000 for FY91; $41,500,000 for FY92.
Department of Commerce -- $5,750,000 for FY88; $6,250,000 for each of FY89 and FY90; and $6,750,000 for each of FY91 and FY92.
Department of Agriculture -- $2,200,000 for FY88; $2,400,000 for each of FY89 and FY90; and $2,600,000 for each of FY91 and FY92.
To the Secretary to carry out functions under sections 7(e),(g),and (h) -- Not to exceed $600,000 for each Fiscal Year through 1992.
Western Hemisphere Convention implementation, not to exceed $400,000 for each of FY88, 89, and 90 and $500,000 for each of FY91 and 92.
In addition to amending the Endangered Species Act, P.L. 100-478 also included the African Elephant Conservation Act.
Public Law 102-251, Title III, 305, March 9, 1992 (106 Stat. 66) as amended by Public Law 104-208, div. A, Title I, 101 (a), September 30, 1996 (110 Stat. 3009) provided that "the special areas defined in 3(24) of the Magnuson-Stevens Fishery Conservation and Management Act ( 16 U.S.C. 1802 (24) ) shall be considered places that are subject to the jurisdiction of the United States for the purposes of the Endangered Species Act of 1973." There is also a provision that requires all Federal agencies to minimize conflicts with recreational fisheries and listed species.
Public Law 105-18, Title II, 3003, June 12, 1997 (111 Stat. 176) provides guidance for consultation under Section 7 for emergency situations.
The National Defense Authorization Act of Fiscal Year 2004, Public Law 108-136, amended Section 4 of the Act by exempting military lands from critical habitat designation that are subject to an Integrated Natural Resources Managment Plan, if the Secretary determines in writing that such plan provides a benefit to the species for which critical habitat is proposed for designation. In addition, this law amended Section 4(b)(2) by requiring the Secretary to consider the impact to national security when designating critical habitat.
Share | From the U.S. Code Online via GPO Access [wais.access.gpo.gov] [Laws in effect as of January 24, 2002] [Document not affected by Public Laws enacted between January 24, 2002 and December 19, 2002] [ CITE : 43USC666 ] TITLE 43--PUBLIC LANDS CHAPTER 15--APPROPRIATION OF WATERS; RESERVOIR SITES Sec. 666. Suits for adjudication of water rights (a) Joinder of United States as defendant; costs Consent is given to join the United States as a defendant in any suit (1) for the adjudication of rights to the use of water of a river system or other source, or (2) for the administration of such rights, where it appears that the United States is the owner of or is in the process of acquiring water rights by appropriation under State law, by purchase, by exchange, or otherwise, and the United States is a necessary party to such suit. The United States, when a party to any such suit, shall (1) be deemed to have waived any right to plead that the State laws are inapplicable or that the United States is not amenable thereto by reason of its sovereignty, and (2) shall be subject to the judgments, orders, and decrees of the court having jurisdiction, and may obtain review thereof, in the same manner and to the same extent as a private individual under like circumstances: Provided, That no judgment for costs shall be entered against the United States in any such suit. (b) Service of summons Summons or other process in any such suit shall be served upon the Attorney General or his designated representative. (c) Joinder in suits involving use of interstate streams by State Nothing in this section shall be construed as authorizing the joinder of the United States in any suit or controversy in the Supreme Court of the United States involving the right of States to the use of the water of any interstate stream. (July 10, 1952, ch. 651, title II, Sec. 208(a)-(c), 66 Stat. 560.) Codification Section is comprised of subsections (a) to (c) of section 208 of act July 10, 1952. Subsection (d) of section 208 is omitted as it referred to the limitation on the use of any appropriation in act July 10, 1952 to prepare or prosecute the suit in the U.S. District Court for the Southern Division of California, by the United States v. Fallbrook Public Utility Corporation. Section Referred to in Other Sections This section is referred to in title 16 sections 410aaa-76, 460ccc- 8, 460ddd, 460iii-5, 668dd; title 28 section 2409a.
How Current is This? (a) The United States may be named as a party defendant in a civil action under this section to adjudicate a disputed title to real property in which the United States claims an interest, other than a security interest or water rights. This section does not apply to trust or restricted Indian lands, nor does it apply to or affect actions which may be or could have been brought under sections 1346 , 1347 , 1491 , or 2410 of this title, sections 7424, 7425, or 7426 of the Internal Revenue Code of 1986, as amended ( 26 U.S.C. 7424 , 7425 , and 7426 ), or section 208 of the Act of July 10, 1952 ( 43 U.S.C. 666 ). (b) The United States shall not be disturbed in possession or control of any real property involved in any action under this section pending a final judgment or decree, the conclusion of any appeal therefrom, and sixty days; and if the final determination shall be adverse to the United States, the United States nevertheless may retain such possession or control of the real property or of any part thereof as it may elect, upon payment to the person determined to be entitled thereto of an amount which upon such election the district court in the same action shall determine to be just compensation for such possession or control. (c) No preliminary injunction shall issue in any action brought under this section. (d) The complaint shall set forth with particularity the nature of the right, title, or interest which the plaintiff claims in the real property, the circumstances under which it was acquired, and the right, title, or interest claimed by the United States. (e) If the United States disclaims all interest in the real property or interest therein adverse to the plaintiff at any time prior to the actual commencement of the trial, which disclaimer is confirmed by order of the court, the jurisdiction of the district court shall cease unless it has jurisdiction of the civil action or suit on ground other than and independent of the authority conferred by section 1346 (f) of this title. (f) A civil action against the United States under this section shall be tried by the court without a jury. (g) Any civil action under this section, except for an action brought by a State, shall be barred unless it is commenced within twelve years of the date upon which it accrued. Such action shall be deemed to have accrued on the date the plaintiff or his predecessor in interest knew or should have known of the claim of the United States. (h) No civil action may be maintained under this section by a State with respect to defense facilities (including land) of the United States so long as the lands at issue are being used or required by the United States for national defense purposes as determined by the head of the Federal agency with jurisdiction over the lands involved, if it is determined that the State action was brought more than twelve years after the State knew or should have known of the claims of the United States. Upon cessation of such use or requirement, the State may dispute title to such lands pursuant to the provisions of this section. The decision of the head of the Federal agency is not subject to judicial review. (i) Any civil action brought by a State under this section with respect to lands, other than tide or submerged lands, on which the United States or its lessee or right-of-way or easement grantee has made substantial improvements or substantial investments or on which the United States has conducted substantial activities pursuant to a management plan such as range improvement, timber harvest, tree planting, mineral activities, farming, wildlife habitat improvement, or other similar activities, shall be barred unless the action is commenced within twelve years after the date the State received notice of the Federal claims to the lands. (j) If a final determination in an action brought by a State under this section involving submerged or tide lands on which the United States or its lessee or right-of-way or easement grantee has made substantial improvements or substantial investments is adverse to the United States and it is determined that the State's action was brought more than twelve years after the State received notice of the Federal claim to the lands, the State shall take title to the lands subject to any existing lease, easement, or right-of-way. Any compensation due with respect to such lease, easement, or right-of-way shall be determined under existing law. (k) Notice for the purposes of the accrual of an action brought by a State under this section shall be— (1) by public communications with respect to the claimed lands which are sufficiently specific as to be reasonably calculated to put the claimant on notice of the Federal claim to the lands, or (2) by the use, occupancy, or improvement of the claimed lands which, in the circumstances, is open and notorious. (l) For purposes of this section, the term “tide or submerged lands” means “lands beneath navigable waters” as defined in section 2 of the Submerged Lands Act ( 43 U.S.C. 1301 ). (m) Not less than one hundred and eighty days before bringing any action under this section, a State shall notify the head of the Federal agency with jurisdiction over the lands in question of the State's intention to file suit, the basis therefor, and a description of the lands included in the suit. (n) Nothing in this section shall be construed to permit suits against the United States based upon adverse possession.
The synopsis for this grant opportunity is detailed below, following this paragraph. This synopsis contains all of the updates to this document that have been posted as of 04/22/2011 . If updates have been made to the opportunity synopsis, update information is provided below the synopsis.
If you would like to receive notifications of changes to the grant opportunity click send me change notification emails . The only thing you need to provide for this service is your email address. No other information is requested.
Any inconsistency between the original printed document and the disk or electronic document shall be resolved by giving precedence to the printed document.
Document Type:
Grants Notice
Funding Opportunity Number:
11-538
Opportunity Category:
Discretionary
Posted Date:
Apr 22, 2011
Creation Date:
Apr 22, 2011
Original Closing Date for Applications:
Jul 21, 2011 07/21/2011 Initiation Project 08/04/2011 Targeted STEM Infusion Project 08/04/2011 Proposals for Research Initiation Awards Proposals Accepted Anytime Planning Grants; Broadening Participation Research in STEM Education Proposals
Current Closing Date for Applications:
Jul 21, 2011 07/21/2011 Initiation Project 08/04/2011 Targeted STEM Infusion Project 08/04/2011 Proposals for Research Initiation Awards Proposals Accepted Anytime Planning Grants; Broadening Participation Research in STEM Education Proposals
Archive Date:
Funding Instrument Type:
Grant
Category of Funding Activity:
Science and Technology and other Research and Development
Category Explanation:
Expected Number of Awards:
23
Estimated Total Program Funding:
$7,000,000
Award Ceiling:
$2,500,000
Award Floor:
$50,000
CFDA Number(s):
47.076 -- Education and Human Resources
Cost Sharing or Matching Requirement:
No
Eligible Applicants
Others (see text field entitled "Additional Information on Eligibility" for clarification)
Additional Information on Eligibility:
*Organization Limit: Proposals may only be submitted by the following: -Tribal Colleges and Universities, Alaska Native-serving institutions and Native Hawaiian-serving institutions as defined in Section IV of this solicitation.????Priority for TSIP??awards will be given to TCUP-eligible institutions that have not previously received Implementation-level support. *PI Limit:For the Planning Grant and Initiation Project award tracks, the??Principal Investigator (PI) is expected to be the chief academic officer of the institution, or another senior academic officer responsible for oversight and management of curriculum and instructional policies for the institution.?? All full time faculty members??at TCUP-eligible institutions are eligible to serve as PI on Broadening Participation Research in STEM Education. Typically, the PI for??Targeted STEM Infusion Projects and Research Initiation Award??proposals would be a member of the STEM faculty. Prospective PIs are encouraged to consult TCUP program staff.
Agency Name
National Science Foundation
Description
The Tribal Colleges and Universities Program (TCUP) provides awards to Tribal Colleges and Universities, Alaska Native-serving institutions, and Native Hawaiian-serving institutions to promote high quality science, technology, engineering and mathematics (STEM) education, research, and outreach. TCUP-eligible institutions are predominantly two-year and community colleges. Support is available to TCUP-eligible institutions (see the Additional Eligibility subsection of Section IV of this solicitation) for Planning Grants, Initiation Projects, Broadening Participation Research in STEM Education??(BPR) Projects,??Targeted STEM Infusion Projects (TSIP), and Research Initiation Awards (RIA). Through these mechanisms, along with collaborations with other National Science Foundation (NSF) units and its work with other organizations,??TCUP??aims to??increase Native individuals' participation in STEM careers and the quality of STEM programs at??TCUP-eligible institutions. TCUP strongly encourages the inclusion of activities that will benefit veterans. Planning Grants provide support to undertake self-analysis of the TCUP-eligible institution's undergraduate STEM programs to identify components that need improvement or enhancement in order to ensure a high-quality??undergraduate STEM education.?? Initiation??Projects provide support to design, implement??and assess comprehensive institutional efforts to increase the numbers of STEM students and the quality of their preparation by strengthening STEM education and research. Initiation??Projects create and/or adapt and assess innovative models and materials for teaching and learning in STEM, embody knowledge about how students learn most effectively in STEM teaching and learning activities, and bring STEM disciplinary advances into the undergraduate experience. Broadening Participation Research in STEM Education (BPR) provides support for research projects that seek to create and study new models and innovations in STEM teaching and learning, enhance the understanding of the participation of diverse groups in STEM education and inform education practices and interventions.?? BPR projects add new research-based strategies and models to broadening participation in STEM and increase the capacity of scholars in TCUP-eligible institutions to conduct this type of research. Targeted STEM Infusion Projects (TSIP) provide support toward achieving a short-term, well-defined goal that promises to improve the quality of undergraduate STEM education at an eligible institution.?? Targeted STEM Infusion Projects could, for example, enhance academic infrastructure by systematically adding traditional knowledge to the scope or content of a STEM course, updating curriculum, modernizing laboratory research equipment, or improving the computational network array for research and education. Research Initiation Awards (RIA) provide support for??faculty members in STEM areas at??TCUP-eligible institutions to pursue research at an NSF-funded Center, at a research-intensive institution, or at a national laboratory. Awards are intended to help further the faculty member's research capability and effectiveness, to improve research and teaching at his or her home institution, and to involve undergraduate students in research experiences. These awards are particularly appropriate??as a means of recruiting and retaining??highly qualified scientists and engineers at TCUP-eligible institutions.Other funding opportunities include: Conferences, Symposia, and Workshops; EArly-concept Grants for Exploratory Research (EAGER) and Grants for Rapid Response Research (RAPID) grants; and Grant Supplements for existing awards. PIs are invited to seek supplemental support from NSF for their participating students and faculty who are accepted as participants in one of four Department of Energy??initiatives: Science Undergraduate Laboratory Internships (SULI), Faculty-Student Teams (FaST), Community College Institutes (CCI),and Pre-Service Teacher (PST) Internships. The Dear Colleague Letter is found here. The initiatives are intended to support the research opportunities in DoE national laboratories during the summer.
U.S. EPA launches "Federal Green Challenge " in the Pacific Southwest
Federal participants pledge to cut federal waste, reduce "carbon footprints" and save money
SAN FRANCISCO -- The United States Environmental Protection Agency's Pacific Southwest Region has launched the West Coast Federal Green Challenge. The campaign kicks off during Earth Week and celebrates the commitment of 34 federal agencies, representing more than 150,000 federal employees doing their part to reduce their environmental impact. Under this new initiative, federal government facilities pledge to reduce their carbon emissions by 5% or more per year in at least two of six areas: waste, water, energy, transportation, electronics, and purchasing.
“As the nation's largest purchaser of goods and services, spending $425 billion a year, the federal government should leverage its collective purchasing power to protect human health and the environment,” said Jared Blumenfeld, Regional Administrator of EPA's Pacific Southwest Region. Federal agencies have responded enthusiastically to our call to reduce environmental footprints.”
Environmentally preferable purchasing helps the environment when agencies buy less, or choose “green” products. Blumenfeld also noted that the federal government is the largest buyer of energy in the U.S., and accounts for 7% of the world's information technology purchases. The federal government also controls a real estate portfolio of more than 1.2 million assets including 550,000 buildings.
Joining the West Coast Green Challenge are:
All California
· Navy Region Southwest (predominantly San Diego Area)
· US Forest Service (Region 5)
· Rural Development (California)
San Francisco Bay Area
· US Environmental Protection Agency (Pacific Southwest Region)
· NASA (Ames Research Center)
· United States Postal Service (San Francisco District)
· Center for Medicare and Medicaid
· Office of Labor-Management Standards
· Health and Human Services (Office of Assistant Secretary for Health)
· San Francisco Federal Executive Board
· Employee Benefits Security Administration
· Division of Federal Workers' Compensation
· Department of Labor (Office of Assistant Secretary for Administration & Management)
· Agency for Toxic Substances and Disease Registry
· US Treasury (San Francisco Financial Center)
· Social Security Administration (Richmond)
· Golden Gate National Recreation Area
· Lawrence Livermore National Laboratory
· Lawrence Berkeley National Laboratory
· General Services Administration (San Francisco Office)
· Federal Deposit Insurance Corporation
· US Department of Veterans Affairs (Northern California Health Care System)
· Small Business Administration (Region 9)
Los Angeles
· Greater Los Angeles Federal Executive Board
· Drug Enforcement Administration (Los Angeles)
· US Department of Housing and Urban Development (Los Angeles Office)
· US Citizen and Immigration Services (Western Region)
· US Attorney's Office (Central District of CA)
Sacramento
· Bureau of Indian Affairs (Sacramento)
· Fish & Wildlife Service (Pacific Southwest Region)
Arizona
· Grand Canyon National Park
Nevada
· Navy Region Southwest (1 base)
· Lake Mead National Recreation Area
Hawaii
· Hawai'i Volcanoes National Park
The Federal Green Challenge was originally launched in 2008 in EPA's Pacific Northwest Region. This new effort will expand the Federal Green Challenge to the entire West Coast. Last year, the Federal Green Challenge in the Pacific Northwest Region reduced the carbon footprint of its partners by 380 million pounds of carbon dioxide equivalent (CO2e) and saved over $1 million for the government.
In addition to the Pacific Southwest Region's new partners, six new partners are also joining the Pacific Northwest's 23 existing partners: Census Bureau (Seattle Regional Office), Dept. of Commerce Office of Inspector General (Seattle Regional Office), Federal Emergency Management Agency (Region 10, Bothell Federal Regional Center), National Archives & Records Administration (Pacific Alaska Region), Seattle Federal Executive Board, Small Business Administration (Seattle District Office), and U.S. Attorney's Office (Western District of Washington).
For more information on the West Coast Federal G reen Challenge please visit,
April 22, 2011 -- With the Federal Government Focusing More Than Ever on Green IT, Intelligent Decisions to Highlight Company's Energy-Efficient and Cost Reducing Solutions at AFCEA Energy and the Environment IT... View News Release
April 22, 2011 -- Catapult Technology, Ltd. has won the Administrator's Award for Mentorship Excellence in recognition of Catapult's participation in the U.S. General Services Administration's (GSA)... View News Release
April 22, 2011 -- The United States Organizations for Bankruptcy Alternatives (USOBA) today announced Evolution2011, the largest and most significant conference of its kind in the history of the debt relief industry.... View News Release
April 22, 2011 -- Mark Guimond, a leading lobbyist for financial services issues and trade associations, will be a featured speaker at the TASC "Mission Possible Part 2" Conference in Las Vegas on the subject... View News Release
Resource Record Details
FEMA-National Marine Fisheries Service Programmatic Biological Assessment
FEMA has prepared this Programmatic Biological Assessment (PBA) for the purpose of initiating a programmatic consultation with the National Marine Fisheries Service (NMFS). This PBA describes the types of projects usually funded by FEMA and it evaluates typical recurring actions undertaken by FEMA within the State of California in preparation for and in the wake of disasters. This document will facilitate FEMA's compliance with the Endagered Species Act (ESA) by providing a framework to address affects to Federally listed species from projects typically funded in response to flood, earthquake, fire, and wind disasters, and to prevent future disasters resulting from these types of events. Through programmatic consultation, NMFS and FEMA intend to streamline the consultations process for these typically recurring actions in California.
Volunteers
Businesses / Professionals
Educational Institutes and Professionals
Floodplain Managers
General Public / Households
Design and Construction Industry
Scientific and Research Organizations / Institutions
Hazard Mitigation Officers
State, Local and Tribal Representatives
Emergency Personnel and Managers
Children / Kids
Lenders and Brokers
Pet / Livestock Owners
Federal Agencies
News Media
Trade Associations
Insurance Industry
Realtors
Planners
FEMA Regions
Historic Preservation / Environmental
Private Not-for-Profits
Contractors and Vendors
Mapping Professionals
Hazard Types:
Tsunami
Tornado
Mudslide/Landslide
Technological
Terrorism
Industry Hardship
Hurricane/Tropical Storm
Chemical/Biological
Extreme Temperatures
Flooding
Virus Threat
Drought
Dam/Levee Break
Wildfire
Earthquake
Severe Storm
Coastal Storm
Typhoon
Winter Storm
Fire
Volcano
Nuclear
Subjects:
Documents for Public Review and Comment
Sustainable Development and Environmental Considerations
“FEMA's Risk Mapping, Assessment, and Planning (Risk MAP) Fiscal Year 2011 Report to Congress,” dated March 15, 2011, provides an update on FEMA's strategic approach, program budget and measures, and implementation for Risk MAP. FEMA encourages feedback from National Flood Insurance Program and other Risk MAP stakeholders on the strategic approach and implementation outlined in this document. Interested parties with questions pertaining to specific Risk MAP projects, including flood mapping updates, are encouraged to contact their local and State officials, who are working with their local FEMA Regional Office. Comments or questions regarding the Report to Congress can be e-mailed to FEMA-RiskMaps@dhs.gov. FEMA will not provide individual replies to comments, but all feedback will be considered in FEMA's implementation of Risk MAP.
Resource Type:
Document / Report
The Notification and Federal Employee Anti-discrimination and Retaliation Act (No FEAR Act) Public Law 107-174
On May 15, 2002, President George W. Bush signed the Notification and Federal Employee Anti-discrimination and Retaliation Act or No FEAR Act. The Act increased accountability of Federal Departments and Agencies for acts of discrimination or reprisal against employees resulting from whistleblower complaints, and complaints before the Merit Systems Protection Board and Equal Employment Opportunity Commission.
Under Title III of the Act, departments and agencies are required to post on their public web sites, summary statistical data relating to equal employment opportunity complaints filed against the department or agency.
Both the Department of Homeland Security and FEMA will post to the respective public web sites statistical information in accordance with the No FEAR Act. This data will be updated on a quarterly basis for the current fiscal year.
For further information, please contact the Office of Equal Rights.
Notification and Federal Employee Antidiscrimination and Retaliation Act of 2002 ( PDF 52KB)
The Equal Rights Officer (ERO) cadre is a diverse group composed of persons with backgrounds in such fields as EEO, Civil Rights, human resources management, conflict resolution, and community organization. They serve on the direct staff of the Federal Coordinating Officer (FCO) at the Disaster Field Office (DFO). EROs receive both classroom instruction and mentoring in the field before deploying independently.
The ERO cadre offers the following services:
Civil Rights Resolution - Works proactively with Community Relations, Public Affairs, Human Services, and other DFO components to resolve individual or group Civil Rights issues; visits and speaks with key community leaders and organizations; assesses accessibility at Disaster Recovery Centers and distributes information about OER programs.
Technical Assistance and Training - Provides advice and guidance to the FCO on EEO and Civil Rights matters; presents training on sexual harassment prevention, cultural diversity, and the EEO process.
EEO Counseling - assists FEMA employees, employment applicants, and managers to resolve problems quickly; guides supervisors through downsizing to achieve the best possible outcome; processes all complaints that cannot be resolved informally.
The job of the ERO often is described as "providing mitigation for people." Just as FEMA works with individuals and communities to avoid or lessen the impact of natural hazards, so EROs work proactively to mitigate current and future people problems.
For more information on the ERO Cadre, please view the document below.
California is located on the west coast of the mainland United States, and borders the RIX states of Nevada and Arizona. The time zone in California is UTC/GMT-8, with Daylight Savings Time.
Recent disasters included severe storms, flooding, landslides, mudslides, debris flow, levee breaks, and wildfires that destroyed forests infested with bark beetles.
California is particularly susceptible to earthquakes . With 33 million people, California is the country's most populous state. Densely populated coastal cities located on faults are at special risk.
Sacramento, the state capital, is located in north central California. The FEMA Region IX office is located in Oakland. Semi-permanent Joint (FEMA-State-Tribal) Field Offices (JFOs) are located in Rancho Cordova near Sacramento, and in Pasadena, as needed.
Compliance with the federal National Environmental Policy Act (NEPA) and other laws is required for obligation of FEMA funds. FEMA's Region 9 Environmental Office consults with the following agencies and others as needed:
US Army Corps of Engineers (USACE). Three USACE Districts serve California: Sacramento, San Francisco, and Los Angeles. The USACE issues permits for activities affecting waters of the United States.
State of California Environmental Requirements and Agencies
The State of California is responsible for compliance with State laws and regulations, including the California Environmental Quality Act (CEQA). The following are links to helpful state agencies and resources for environmental compliance:
The 307 federally-listed threatened and endangered species in California include: red-legged frog, garter snake, Baker's larkspur, clapper rail, condor, salt marsh harvest mouse, and showy Indian clover.
Salmon and steelhead, and habitat in many streams, are a priority for both services.
Programmatic Environmental Assessment (PEA) for California
Many Project Worksheets prepared in California disasters (under FEMA's Public Assistance Program) are of such scale and complexity that they would require preparation of an Environmental Assessment (EA). Most actions proposed for FEMA funding in California can be grouped by type of action or location, and evaluated in a Programmatic Environmental Assessment (PEA) without the need to develop a time-consuming, stand- alone EA for each project.
FEMA RIX has developed a PEA to facilitate FEMA's compliance with NEPA. The PEA provides a framework to address the impacts of projects funded in response to flood, earthquake, fires, rain and wind. The Programmatic approach helps expedite the environmental review and the receipt of federal funds.
Programmatic Historic Preservation Agreement for California
The Programmatic Agreement between FEMA, the California State Historic Preservation Office (SHPO), the California Governor's Office of Emergency Services, and the Advisory Council on Historic Preservation (ACHP) helps expedite the review of projects proposed for FEMA funding that could affect historic properties, such as those involving the repair, restoration and replacement of public infrastructure.
Attachment A
When a change in reasonably anticipated future land use assumptions or a remedy occurs at any time after a Record of Decision (ROD) has been signed (including a change that occurs after construction has been completed) and there is an anticipated use of Fund money, Regions should consult with the Assessment and Remediation Division (ARD) in the Office of Superfund Remediation and Technology Innovation (OSRTI) and should be prepared to discuss the questions below and provide other information as appropriate. For Potentially Responsible Party (PRP) lead sites, Regions also should coordinate with the Office of Site Remediation Enforcement (OSRE) as to whether additional Agency costs can be recovered and other related enforcement issues. The Region should consider a number offactors in evaluating whether it would be appropriate to pursue a change in the land use or selected remedy. These include, but are not limited to:
1.
Is the potential change in the reasonably anticipated future land use consistent with the Region's analysis of the remedy selected in the ROD? For example, would the remedy remain protective of human health and the environment in light of the potential change in anticipated future land use? Is a new risk assessment needed to estimate potential risks to human health and the environment due to the proposed changes?
2.
Does the potential change in reasonably anticipated future land use appear reasonable and feasible? If the potential change occurs after the remedy is constructed, is the proposed use compatible with the existing remedy (including ICs), or is additional work needed? If so, who will be responsible for the additional costs?
3.
Does the potential change in anticipated future land use affect any of the nine NCP criteria used to evaluate alternatives? (e.g., long-term effectiveness may be improved by certain types ofreuse that help preserve the integrity of remedy).
4.
How have the affected communities (including environmental justice communities) and other stakeholders been involved in identifying the potential change in reasonably anticipated future land use? Are there conflicting views about the potential change in reasonably anticipated future land use?
5.
Does new, reliable, and up-to-date information support are-evaluation of the assumptions regarding reasonably anticipated future land use made by the Region previously in the ROD? Was the new proposed reasonably anticipated future land use identified and rejected previously in the CERCLA remedy selection process? Ifso, does new information or a change in circumstances justify a re-examination of the issue?
6.
What is the potential financial impact on the Agency's budget associated with modifying the remedial action based on the potential change in reasonably anticipated future land use? What is the estimated cost of revising already-prepared analys is and documents, modifying, terminating or re-implementing ICs? Does the potential change in land use present long·term savings through, for example, reduced Operation and Maintenance (O&M) requirements, fewer Ies that require monitoring, etc.?
7.
At a Fund-lead site, could any additional expense be characterized as a prohibited enhancement or betterment?
8.
At a PRP-Iead site, is the PRP or other private party (e.g., a bona fide prospective purchaser) willing to assume any additional cost that might be associated with modifying the selected remedy based on a new anticipated future land use assumption? Has the PRP or other private party provided sufficient, reasonably reliable financial assurance to ensure completion of any revised remedial action?
9.
Is the potential change in reasonably anticipated future land use designed primarily to position a site for more stringent cleanup or a less stringent cleanup?
ICs should be carefully evaluated, selected, and narrowly tailored to meet the cleanup objectives. J7 It is important that site managers involve the appropriate local government agencies in discussions on the types ofcontrols that are being considered as early in the remedial process as possible. Local government officials can offer valuable information on the land use controls available in their jurisdiction and may offer creative solutions that protect human health and the environment while also protecting other local stakeholder interests. Discussions with the local government and community give the Regions the opportunity to identify whether a particular stakeholder group may be affected as a result ofa proposed Ie or to determine if the community has special needs in regard to an IC. In addition, discussions with individuals living on or near a site may reveal information regarding the potential efficacy of an IC. It may also be possible to provide technical assistance to the community so they can obtain a technical expert to assist them in evaluating Ies and the overall remedy.
The site manager should ensure that there is a process that routinely and critically evaluates the lCs to determine: (1) whether the mechanism remains in place; and (2) whether the ICs are providing the protection required by the remedy. This is routinely carried out through Institutional Control Implementation Plans with monitoring schedules and through statutory Five-Year Reviews.
Regions should take into account reasonably anticipated future land uses when selecting ICs and drafting the specific IC requirements and evaluating which Ie instruments may be best to achieve the IC objectives. For example, putting in place ICs that require the prior approval of the state environmental agency in addition to the local government prior to any disturbance ofa remedy may help to limit the activities that may compromise the remedy and/or result in exposures to humans. The Ie may, however~ allow for other uses of the site that do not negatively affect remedy protectiveness (e.g., prohibit heavy machinery usage on or near the remedy, while allowing light recreational uses, such as soccer fields).
Depending on the type of IC, there are different recommendations on how to enforce them. For governmental controls (e.g., zoning, permitting, etc.), EPA may encourage the local government to enter into agreements with the responsible parties and other stakeholders to memorialize various Ie commitments, such as monitoring them periodically, correcting breaches, etc. For proprietary controls (e.g., restrictive covenants), EPA can refer violations to the Department ofJustice or to a State's environmental agency to take action in federal or state court. For enforcement tools (e.g., consent decrees), EPA can use CERCLA or other cleanup authority to enforce the restrictions defined in these documents. Finally, information devices (e.g., placement of warning signs, fishing restrictions, registries, etc.) are not easily enforced by the EPA, but some states can enforce the placement of notices and some states can require that allies be placed in the state registry.
17 "Institutional Controls: A Site Manager's Guide to Identifying, Evaluating and Selecting Institutional Controls at Superfund and RCRA Action Cleanups," EPA-540-F-OO-005, OSWER 9355.0-74FS-P, September 2000. Available at: http://epa.gov/supcrfundlpolicy/ic/guidelguide.pdf.
II
General Docket
United States Court of Appeals for the Ninth Circuit
Court of Appeals Docket #: 11-15383
Docketed: 02/16/2011
Nature of Suit: 1893 Environmental Matters
USA, et al v. Iron Mountain Mines, Inc., et al
Appeal From: U.S. District Court for Eastern California, Sacramento
Filed (ECF) Appellees Bayer Cropscience Inc.'s and Rhone-Poulnec Basic Chemicals Company Motion to dismiss for lack of jurisdiction. Date of service: 03/09/2011. [7674036] (MWP)
Filed (ECF) Appellees Bayer Cropscience Inc.'s and Rhone-Poulnec Basic Chemicals Company Motion for sanctions. Date of service: 03/09/2011. [7674081] (MWP)
Filed (ECF) Appellees Bayer Cropscience Inc.'s and Rhone-Poulnec Basic Chemicals Company response opposing motion (,motion to withdraw as counsel). Date of service: 03/09/2011. [7674132] (MWP)
Filed (ECF) Appellees Bayer Cropscience Inc.'s and Rhone-Poulnec Basic Chemicals Company Corrected Motion to dismiss for lack of jurisdiction. Date of service: 03/09/2011. [7674164] (MWP)
Filed (ECF) Appellees State of California and USA response supporting motion (,motion to dismiss for lack of jurisdiction). Date of service: 03/21/2011. [7688265] (JMP)
Filed (ECF) Appellees Bayer Cropscience Inc.'s and Rhone-Poulnec Basic Chemicals Company Stipulated Motion for miscellaneous relief [Stipulated Motion and Proposed Order Amending Notice of Appeal ]. Date of service: 03/31/2011. [7700600] (MWP)
Filed (ECF) Appellees Bayer Cropscience Inc.'s and Rhone-Poulnec Basic Chemicals Company Correspondence: Letter re Stipulated Motion and Proposed Order. Date of service: 03/31/2011 [7700607] (MWP)
Filed order (Appellate Commissioner) The stipulated motion to amend the notice of appeal filed on February 14, 2011 (the “Stipulated Motion”) is granted. The reference to “the orders made December 8, 2000, relating to the consent decree, including the order dismissing defendants' cross-claims” is deleted from the notice of appeal. Pursuant to the Stipulated Motion, appellee Bayer Cropscience Inc.'s (“Bayer”) motion to dismiss, motion for sanctions, and opposition to appellants' motion to withdraw as counsel, and the joint response in support of Bayer's motion to dismiss filed by appellees State of California and the United States are deemed withdrawn. The motion of appellants' retained counsel, William A. Logan, Esq. and Logan and Giles LLP, to withdraw as retained counsel of record is granted. The Clerk shall amend the docket to reflect the following address for appellants T.W. Arman and Iron Mountain Mines, Inc.: P. O. Box 992867, Redding, CA 96099, (530) 275-4550. A corporation must be represented by counsel. See In re Highley, 459 F.2d 554, 555 (9th Cir. 1972). Within 28 days after the date of this order, appellants Iron Mountain Mines, Inc.'s new counsel shall file a notice of appearance with the court. A new briefing schedule shall be established upon compliance with this order. Failure to comply with this order shall result in the automatic dismissal of the appeal by Iron Mountain Mines, Inc. by the Clerk for failure to prosecute. See 9th Cir. R. 42-1. (MOATT) [7718808] (DEV)
Terminated William A. Logan Jr. for Iron Mountain Mines, Inc. and T. W. Arman in 11-15383, Anthony Giles for Iron Mountain Mines, Inc. and T. W. Arman in 11-15383 [7718868] (DEV)
Received notice regarding From Logan & Giles proof of service to former client of the 4/15/11 order.. [7724171] (MT)
Damien M. Schiff
Attorney
Pacific Legal Foundation dms@pacificlegal.org
(916) 419-7111
Ex. Ord. No. 12962. Recreational Fisheries Ex. Ord. No. 12962, June 7, 1995, 60 F.R. 30769, provided: By the authority vested in me as President by the Constitution and the laws of the United States of America, and in furtherance of the purposes of the Fish and Wildlife Act of 1956 (16 U.S.C. 742a-d, and e-j), the Fish and Wildlife Coordination Act (16 U.S.C. 661-666c), the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.), and the Magnuson Fishery Conservation and Management Act (16 U.S.C. 1801-1882), and other pertinent statutes, and in order to conserve, restore, and enhance aquatic systems to provide for increased recreational fishing opportunities nationwide, it is ordered as follows: Section 1. Federal Agency Duties. Federal agencies shall, to the extent permitted by law and where practicable, and in cooperation with States and Tribes, improve the quantity, function, sustainable productivity, and distribution of U.S. aquatic resources for increased recreational fishing opportunities by: (a) developing and encouraging partnerships between governments and the private sector to advance aquatic resource conservation and enhance recreational fishing opportunities; (b) identifying recreational fishing opportunities that are limited by water quality and habitat degradation and promoting restoration to support viable, healthy, and, where feasible, self-sustaining recreational fisheries; (c) fostering sound aquatic conservation and restoration endeavors to benefit recreational fisheries; (d) providing access to and promoting awareness of opportunities for public participation and enjoyment of U.S. recreational fishery resources; (e) supporting outreach programs designed to stimulate angler participation in the conservation and restoration of aquatic systems; (f) implementing laws under their purview in a manner that will conserve, restore, and enhance aquatic systems that support recreational fisheries; (g) establishing cost-share programs, under existing authorities, that match or exceed Federal funds with nonfederal contributions; (h) evaluating the effects of Federally funded, permitted, or authorized actions on aquatic systems and recreational fisheries and document those effects relative to the purpose of this order; and (i) assisting private landowners to conserve and enhance aquatic resources on their lands. Sec. 2. National Recreational Fisheries Coordination Council. A National Recreational Fisheries Coordination Council (``Coordination Council'') is hereby established. The Coordination Council shall consist of seven members, one member designated by each of the following Secretaries--Interior, Commerce, Agriculture, Energy, Transportation, and Defense--and one by the Administrator of the Environmental Protection Agency. The Coordination Council shall: (a) ensure that the social and economic values of healthy aquatic systems that support recreational fisheries are considered by Federal agencies in the course of their actions; (b) reduce duplicative and cost-inefficient programs among Federal agencies involved in conserving or managing recreational fisheries; (c) share the latest resource information and management technologies to assist in the conservation and management of recreational fisheries; (d) assess the implementation of the Conservation Plan required under section 3 of this order; and (e) develop a biennial report of accomplishments of the Conservation Plan. The representatives designated by the Secretaries of Commerce and the Interior shall cochair the Coordination Council. Sec. 3. Recreational Fishery Resources Conservation Plan. (a) Within 12 months of the date of this order, the Coordination Council, in cooperation with Federal agencies, States, and Tribes, and after consulting with the Federally chartered Sport Fishing and Boating Partnership Council, shall develop a comprehensive Recreational Fishery Resources Conservation Plan (``Conservation Plan''). (b) The Conservation Plan will set forth a 5-year agenda for Federal agencies identified by the Coordination Council. In so doing, the Conservation Plan will establish, to the extent permitted by law and where practicable; (1) measurable objectives to conserve and restore aquatic systems that support viable and healthy recreational fishery resources, (2) actions to be taken by the identified Federal agencies, (3) a method of ensuring the accountability of such Federal agencies, and (4) a comprehensive mechanism to evaluate achievements. The Conservation Plan will, to the extent practicable, be integrated with existing plans and programs, reduce duplication, and will include recommended actions for cooperation with States, Tribes, conservation groups, and the recreational fisheries community. Sec. 4. Joint Policy for Administering the Endangered Species Act of 1973. All Federal agencies will aggressively work to identify and minimize conflicts between recreational fisheries and their respective responsibilities under the Endangered Species Act of 1973 (``ESA'') (16 U.S.C. 1531 et seq.). Within 6 months of the date of this order, the Fish and Wildlife Service and the National Marine Fisheries Service will promote compatibility and reduce conflicts between the administration of the ESA and recreational fisheries by developing a joint agency policy that will; (1) ensure consistency in the administration of the ESA between and within the two agencies, (2) promote collaboration with other Federal, State, and Tribal fisheries managers, and (3) improve and increase efforts to inform nonfederal entities of the requirements of the ESA. Sec. 5. Sport Fishing and Boating Partnership Council. To assist in the implementation of this order, the Secretary of the Interior shall expand the role of the Sport Fishing and Boating Partnership Council to: (a) monitor specific Federal activities affecting aquatic systems and the recreational fisheries they support; (b) review and evaluate the relation of Federal policies and activities to the status and conditions of recreational fishery resources; and (c) prepare an annual report of its activities, findings, and recommendations for submission to the Coordination Council. Sec. 6. Judicial Review. This order is intended only to improve the internal management of the executive branch and it is not intended to create any right, benefit or trust responsibility, substantive or procedural, enforceable at law or equity by a party against the United States, its agencies, its officers, or any other person. William J. Clinton.
Local Policy Networks and Agricultural Watershed Management
This article emphasizes the critical role of local policy networks for the implementation of agricultural watershed management and the adoption of environmental best management practices. Local networks facilitate diffusion of innovations, the development of social capital, and cultural change. All of these elements are essential for the ability of watershed management programs to successfully solve the water quality collective action problems caused by agricultural nonpoint source pollution. Analyses of survey data from 408 orchard growers in California's Sacramento River watershed demonstrate that exposure to policy networks substantially increases the probability of adopting environmental practices. These findings have important implications for public administration and policies where implementation depends on widespread cooperation and the development of networks with public agencies.
The Watershed Agricultural Program
Manager works as a member of an interdisciplinary and multi-agency team responsible for the
administration and implementation of the Watershed Agricultural Program (WAP). The WAP
Manager is primarily responsible for inter-agency compliance with the Best Management
Practice (BMP) Procurement Procedure and the direct supervision of assigned Soil and Water
Conservation District (SWCD) staff. Work shall include coordinating with the SWCD Executive
Director, the Data and Budget Specialist, Natural Resource Conservation Service (NRCS)
Engineers and cooperating agency supervisors. The Program Manager shall report directly to,
and receive direction from the SWCD Executive Director. Does related work as required.
EPA/SWER
RIN: 2050-AG40
Publication ID: Fall 2010
Title: Emergency Planning and Community Right-To-Know Act: Amendments and Streamlining Rule
Abstract: This supplemental proposal will address reporting thresholds for rock salt, sand, gravel, and other chemicals that pose minimal risk. The proposed rule was published on June 8, 1998 (63 FR 31268). This supplemental rule, when finalized, will minimize burden for those facilities that are currently reporting chemicals that pose minimal risk under sections 311 and 312 of the Emergency Planning and Community Right-To-Know Act. This rule, when finalized, may also reduce the number of facilities subject to these reporting requirements. The reporting requirements under sections 311 and 312 are intended to enhance communities' and emergency response officials' awareness of chemical hazards; to facilitate the development of State and local emergency response plans; and to aid communities and emergency response officials in preparing for and responding to emergencies safely and effectively. By proposing to provide relief from routine reporting of substances with minimal hazards and minimal risk, State and local officials can focus on chemicals that may pose more significant hazard or may present greater risks to the community.
Agency: Environmental Protection Agency(EPA)
Priority: Other Significant
RIN Status: Previously published in the Unified Agenda
Government Levels Affected: Federal, Local, State, Tribal
Small Entities Affected: No
Federalism: No
Included in the Regulatory Plan: No
RIN Data Printed in the FR: No
Agency Contact:
Sicy Jacob
Environmental Protection Agency
Solid Waste and Emergency Response
5104A,
Washington, DC 20460
Phone:202 564-8019
Fax:202 564-2625
Email: jacob.sicy@epa.gov
EPA/SWER
RIN: 2050-AE23
Publication ID: Fall 2010
Title: Revisions to the Comprehensive Guideline for Procurement of Products Containing Recovered Materials
Abstract: EPA is required to prepare procurement guidelines that designate items that are or can be made with recovered materials and to issue recommendations for government procurement of these items. Once designated, procuring agencies are required to purchase these items with the highest percentage of recovered materials practicable. Government procurement of EPA-designated items containing recovered materials fosters markets for recovered materials and, thereby, closes the recycling loop. To date, EPA has designated 61 items under five Comprehensive Procurement Guidelines (CPGs). EPA has also issued a Recovered Materials Advisory Notice (RMAN) with each CPG that provides recommendations on buying the designated items. EPA also reviews existing CPG product designations for effectiveness, obsolescence, and consistency with the biobased products designation program, environmentally preferable purchasing program, and Energy Star and energy efficient products program. A CPG for Nylon Carpet was originally proposed in 2001. A Notice of Data Availability was issued asking for additional information. EPA is evaluating the comments and considering how to proceed with the CPG for Nylon Carpet.
Agency: Environmental Protection Agency(EPA)
Priority: Substantive, Nonsignificant
RIN Status: Previously published in the Unified Agenda
United States religious leaders, attending the annual meeting of the National Religious Coalition on Creation Care in Washington, D.C., applauded the work of the EPA and its administrator Lisa P. Jackson. In a May event at the historic Willard Hotel, the NRCCC recognized Jackson with its "Steward of Creation Award," for clean water and clean air initiatives and for having forcefully moved forward under the Clean Air Act to help regulate the atmospheric pollution of CO2 emissions and mitigate the impact of climate change.
Rabbi Warren Stone, NRCCC co-chair stated: "The EPA under Lisa P. Jackson's strong moral leadership is the most significant voice in our country acting in our interest to mitigate the devastation the atmospheric pollution of climate change and its impact on public health upon the families of our country and our world as well as all creation. We have been hit of late with so-called 'Black Swan' disasters - so described because of their magnitude but also because of our surprise when they occur. These recent unanticipated 'Black Swan" disasters include the tsunami and related nuclear devastation and harmful radiation released from the disaster at Japan's Fukushima nuclear plants rivaling Chernobyl to the major massive tornadoes destroying 1000's of homes in Alabama and throughout the Southeast as well as the current historic flooding of the Mississippi impacting and uprooting tens of 1000's of families. But with the onset of climate change, the severity and increased frequency of at least some of these events is predictable unlike the so-called 'Black Swan' devastation and in all cases, the environmental fallout is certain. These events point to our common future, a future in which climate challenges creating devastating food and water shortages will most likely challenge the public health and wellbeing of our all our country and throughout our global community."
Against this backdrop, the EPA has adopted regulations under the Clean Air Act to put limits on greenhouse-gas emissions. Jackson has said that she and President Obama would have preferred that the limits come through legislation. But efforts to pass such a bill fell apart in the Senate last year several months after the House passed cap-and-trade legislation: "So now we're left with the Clean Air Act. It's not the ideal tool, but it is a tool, and according to the Supreme Court it is a tool," Jackson said, referring to a landmark 2007 Supreme Court decision holding that the EPA can regulate greenhouse-gas emissions under the Clean Air Act upon a finding that the emissions endanger public health and welfare (theHill.com, 4/26/11).
Jackson's moves have come under sharp attack in Congress, with the coal industry particularly up in arms. In April, the House of Representatives passed a measure trying to prevent the EPA from using the Clean Air Act to regulate the atmospheric pollution of climate change. The same bill failed in the Senate in a 50-50 vote. Aides to President Obama said they would recommend he veto the legislation if it passes. (theHill.com 4/26/11).
The EPA sees faith and neighborhood communities as key to these objectives, announcing in April: "In the history of this nation, faith communities and neighborhood groups have been instrumental in efforts to open new opportunities and improve the world we live in. We are initiating today an effort to connect the talent, energy and enthusiasm we see in faith groups and communities across the nation with the work we are doing at EPA." At its May meeting and in related meetings with Congressional staffers, the NRCCC welcomed Jackson's outreach to their communities and heralded her courage and vision.
It's been years in the works, but an agreement was finally reached between the City of Canyon Lake and the Bureau of Land Management (BLM) that allows the City to enforce laws, regulations and ordinances in 800 acres of BLM land adjacent to Canyon Lake for the purposes of public safety and resource protection.
Just in time for Memorial Day weekend, the City Council passed an Urgency Ordinance during a special meeting Tuesday detailing the agreement. The Memorandum of Agreement (MOA) defines the parameters under which law enforcement protection shall be implemented and provides for mutual aid opportunities.
According to City Attorney Elizabeth Martyn, the MOA is based on the understanding that local jurisdictions can enforce laws, regulations and ordinances on BLM administered public lands so long as they do not conflict with BLM management of those lands. “Through our continued coordinated efforts, we have and will assure that no conflicts will occur,” says City Manager Lori Moss. Because the BLM doesn't have sufficient enforcement resources to prevent health and safety issues its lands, Canyon Lake's Special Enforcement team has for years, to a limited degree, patrolled the area and asked people to abide by the rules. Relatively quiet during the winter months, the area has been compared to the Colorado River in summer.
Last summer, while Pat Colleary was the City's Special Enforcement manager, he and his team made a point of patrolling the area on bike as well as boat. Pat points out that, while they didn't have authority to enforce the rules outside the City limits at that time, people in the BLM areas usually responded to personal contact by the officers in uniform, which helped discourage some of the illegal activity.
Now, with a formal agreement and fine schedule in place, there is the ability to enforce laws, regulations and ordinances regarding vehicle use, dumping, littering, fires, shooting, overnight camping, barbecues, crimes against persons, human sanitation issues and uncontrolled boating.
Along with the City's Special Enforcement team, agencies involved in enforcement will include a BLM ranger (when in the area), park ranger (Kabian Park in Quail Valley, a Riverside County Regional Park) and police and fire personnel. Enforcement expense is already proposed in the City's FY 11-12 budget.
Although Councilman Randy Bonner expressed concern about the lack of notice to the public regarding the Urgency Ordinance, Mayor Pro Tem Nancy Horton explained it's necessary to have enforcement capability in place prior to the start of the summer season so that people using the area will know what to expect.
According to Special Enforcement Officers Dennis Bickers and Ivan Henery, the team already has been making contact with those using the Back Bay area in recent weeks to let them know the rules will be enforced and fines issued beginning Memorial Day weekend.
A major advantage of having the MOU in place is the agreement among jurisdictions that boats and personal watercraft no longer will be allowed to launch from BLM property in the Back Bay; those who do launch illegally will face fines.
Finally, the City is able to support the POA's Quagga Mussel Boat Inspection Program, says Nancy. Until now, a big concern has been that boats and personal watercraft launched in the Back Bay could be brought from mussel-infected bodies of water like the Colorado River. Now, no boats will be allowed in the waters connected to Canyon Lake without being declared quagga-free at the gates.
The City and BLM will meet to discuss the effectiveness of the agreement on a regular basis and make modifications accordingly, according to Lori. Council members unanimously approved the Urgency Ordinance; however, it was part of the motion by Councilman Bonner that the Council will review public comments and information for Special Enforcement at the August 3 meeting.
EPA Launches Awards as ‘Climate Leaders Legacy'
The Environmental Protection Agency, Climate Registry, Pew Center on Global Climate Change and Association of Climate Change Officers have announced a new national awards program for climate leadership, to serve as a legacy for the EPA's now-defunct Climate Leaders program.
The awards program is designed to recognize exemplary corporate, organizational and individual leadership in response to climate change. The first awards ceremony will be held in early 2012.
Climate Leaders was an EPA partnership with industry, started in 2002, and designed to help companies develop comprehensive climate change strategies. Firms committed to aggressive reduction goals and reported their annual progress to the EPA. Last September the EPA announced that the program would phase down its services over 2011.
In response to an EPA request for proposals in February 2011, the agency identified the consortium of three non-profits with which it will co-sponsor the new awards program.
The awards will also replace ACCO's Climate Leadership Awards, which were set up to recognize exemplary leadership by organizations in industry, government, academia and the non-profit community.
Specific categories in the new awards will include:
Sustained Excellence in Public Reporting: Recognizes companies that continually raise the bar in the area of public disclosure of GHG emissions data. This includes regular public reporting and verification of corporate GHG inventories, GHG goal setting and achievement of GHG emissions reductions.
Supply Chain Leadership: Recognizes companies that have their own comprehensive GHG inventories and emissions reduction goals and can demonstrate that they are at the leading edge of managing carbon in their supply chain.
Organizational Leadership: Recognizes companies that have “mainstreamed” climate change across their operations and can demonstrate that they factor climate change into their business decisions.
Individual Leadership – Recognizes individuals exemplifying extraordinary leadership in leading their organizations' response to climate change and/or affecting the responses of other organizations.
The organizations will publish additional information on the award categories and nomination process in the next few weeks. The EPA is also considering another joint-recognition program and said it will make an announcement once the details have been confirmed.
“Corporate leadership is essential to advancing climate and energy solutions,” said Eileen Claussen, president of the Pew Center on Global Climate Change. “In growing numbers, companies and their employees are working tirelessly in pursuit of cost-effective solutions that reduce carbon and benefit consumers. Recognizing these great accomplishments serves to motivate and accelerate efforts throughout the business community toward a cleaner, more efficient energy future.”
A public comment period is an opportunity for people to weigh in and provide ideas about what is right or wrong about a proposal—whether it is a project, a rule or guidance. At the end of April, the Obama Administration issued “Draft Guidance on Waters Protected by the Clean Water Act.” http://water.epa.gov/lawsregs/guidance/wetlands/upload/
wous_guidance_4-2011.pdf. The public has until July 1, 2011 to review the guidance and make recommendations.
Public comment periods are taken seriously by the government. The U.S. Army Corps of Engineers and U.S. Environmental Protection Agency fully expect 100,000 on the draft Clean Water Act guidance. They are required to review and weigh these comments and make appropriate changes to the guidance. They are also required to explain why they adopted some changes and declined to incorporate others.
One thing they cannot do is add new ideas of their own. Any changes that occur as a result of a public comment period must be based on ideas and recommendations submitted by the public.
If the comments submitted follow previous patterns, the great majority of the comments will be from write-in campaigns that support or oppose the guidance. These are duly tabulated and they do serve to provide useful information about public opinion, but they generally do not provide the agencies with concrete suggestions on specific changes that are needed. Nor are they backed up with citations to scientific research or other. There will also be comments that do make specific recommendations and cite supporting documentation. These will be analyzed for their content and it is from these comments that any changes will be derived.
What comments are most likely to be useful?
First, it is important to read and understand the guidance before developing comments. This may sound like common sense, but it is no easy task to wade through a long document and understand it perfectly. Comments recommending changes that do not reflect what is in the guidance, will have little weight.
The draft Clean Water Act jurisdiction guidance contains an introduction, eight sections, and an appendix. One strategy for developing comments is to take a look at each part and considerthe following.
Does the reviewer agree with the section?
If not, why, and is there data in the form of scientific studies, economic reports, legal analyses or other information that the reviewer can provide
If so, why, and is there data in the form of scientific studies, economic reports, legal analyses or other information that the reviewer can provide
The agencies have undertaken extensive reviews of available information, which are documented in the appendix and endnotes. Much of what is available to the agencies is in peer-reviewed publications. Practitioners in the field also work extensively with what is called “grey literature” including procedures and studies used in administering wetland or stream programs, conducting field investigations, etc. Submission of grey literature and other information that was not used in developing the guidance can further inform the agencies.
Sections 4, 6 and 7 of the guidance are likely to receive a great deal of attention. Section 4 covers tributaries and discusses how the agencies will identify tributaries including physical characteristics, flow characteristics and consideration of ditches, manmade features and other relevant information. Many states have been working independently to create methodologies for identifying streams that may be useful to describe. Some streams run throughout the year (perennial). Others flow only part of the year. Stream identification methods, documentation of upstream/downstream connections, economic considerations and other related information could be submitted on this section.
Section 6 covers ‘Other Waters' which is largely isolated waters. It is divided into two categories. The first is nonwetlands which are close to jurisdictional waters, for example oxbow lakes. These are subject to the same analysis as adjacent wetlands in Section 5.
However, isolated waters (those not close to jurisdictional waters such as streams and rivers) are treated differently from all other waters described in the guidance and it will be much harder to assert jurisdiction for isolated wetlands such as playa lakes and prairie potholes.
This is because for all other waters the guidance allows the agencies to declare similar waters in a watershed jurisdictional if they collectively meet the significant nexus test. However this approach cannot be used for isolated wetlands. Isolated wetland must be considered individually and must meet the significant nexus test on a case-by-case basis.
These waters, (an estimated 20 million acres of wetlands) have not been identified as subject to Clean Water Act jurisdiction since the SWANCC Supreme Court decision in 2001, which eliminated the “migratory bird rule” that allowed the U.S. Army Corps to assert jurisdiction if a water was used by migratory birds. Documentation of contributions isolated waters make to jurisdictional waters such as biological connections, flood retention or other functions could be submitted on this section. This information is still useful.
Section 7 addresses waters that are generally not jurisdictional. This is a list of waters that are not and have never been subject to Clean Water Act jurisdiction including artificial and man-made ponds and ditches, sewer systems and erosional features such as gullies and rills. Sometimes it is not easy to determine which waters should fall into this category. Information on what waters should not be jurisdictional as well as the information that can be used to identify them could be submitted for this section.
The federal agencies spent considerable time developing the draft guidance. But there may be important information that was not identified and considered. Now there is an important opportunity to improve the guidance by identifying where the agencies got it right and why, where they did not and why, and how to fix it.
On May 2, Treasury Secretary Timothy Geithner said that the Treasury would stop issuing special securities that help state and local governments pay for their debt. This was to be the first in a series of "extraordinary measures" taken by the Treasury to avoid default in the event that Congress failed to raise the debt ceiling on May 16. On May 13, the Secretary said these extraordinary measures had been set in motion.
The Federal Reserve, too, has declared that it cannot help the states with their budget problems -- although those problems were created by the profligate banks under the Fed's purview. The Fed advanced $12.3 trillion in liquidity and short-term loans to bail out the financial sector from the 2008 banking collapse, 64 times the $191 billion required to balance the budgets of all 50 states. But Fed Chairman Ben Bernanke declared in January that the Fed could not make the same cheap credit lines available to state and local governments -- not because the Fed couldn't find the money, but because it was not in the Fed's legislative mandate.
DO JUST ONE THING FOR A YEAR… AND IT ADDS UP
If one person drinks tap water instead of one liter of bottled water each day, it would save the energy equivalent 1.6 Kilowatt- hours per day, 46 gallons of gas per year, or 0.41 metric tons of CO2. If all 49 million people in the Pacific Southwest Region did the same, it would save the equivalent of 2.3 billion gallons of gas per year—the amount used by 3.8 million cars, or 20 million metric tons of CO2. If everyone in the USA did the same, it would save the equivalent of 14.2 billion gallons of gas per year—the amount used by 24.1 million cars, or 126 million metric tons of CO2.*
*This is an estimate of the greenhouse gas savings for bottled water produced and used locally. For bottled water from distant locations, the carbon footprint may double! The calculation assumes that the water is bottled using electricity with the U.S. average carbon emissions.
[Sources: Gleick & Cooley, "Energy Implications of Bottled Water," Pacific Institute, Oakland, Calif., 2009; U.S. EPA, Greenhouse Gas Equivalencies Calculator ]
EPA's mission is to protect human health and the environment. To honor the 40th anniversary of Earth Day, we invite you to join us by taking individual action—here are 40 things we can each do to reduce greenhouse gases and help save the planet:
At Home
At School
On the Road
At Work
Everywhere
1.
Stop junk mail (opt out)
9.
Perform an energy audit of school buildings
17.
Drive a more fuel efficient car, or join a car share
25.
Print less, use 100% recycled paper and print double sided
33.
Get involved—exercise your rights to promote sustainable choices
2.
Replace incandescent bulbs with compact fluorescent lights—and turn them off when not in use
10.
Teach students how to make eco-friendly choices
18.
Walk, bike, carpool or take transit as much as possible
26.
Reduce and green your vehicle fleet, increase use of public transit
34.
Switch to reusable items, such as bags and lunch containers
3.
Buy local, sustainably produced food
11.
Start a recycled materials art program
19.
Reduce your air travel and use e-tickets instead of paper
27.
Use environment-friendly cleaning supplies (e.g. Green Seal approved)
35.
Turn off lights, appliances and electronics when not in use
4.
Adjust your thermostat—up in summer, down in winter
12.
Create a compost bin for food scraps—and recycle cans, bottles and paper
20.
Go easy on the accelerator, use cruise control, and keep your car tuned up and tires well inflated
2009 nehrp recommended seismic provisions for new buildings and PDF
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United States Department of the Interior U.S. GEOLOGICAL SURVEY Geologic Hazards Team PO Box 25046, MS 966, Denver, Colorado 80225 Description of U.S. Seismic Design Maps Web ... United States Department of the Interior
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WASHINGTON — The U.S. Department of Agriculture , known for its drought and disaster assistance to farmers, is providing hundreds of millions of dollars to cash-strapped towns and public safety agencies to buy police patrol cars, equip fire stations and renovate courthouses.
Testimony
Before the Committee on Energy and Natural
Resources, U.S. Senate
United States General Accounting Office
GAO
For Release on Delivery
Expected at 9:30 a.m., EST
Thursday,
December 6, 2001
Iron Mountain Mine Re-Working Group Community Engagement Initiative –Action Plan
Guiding Principles
The purpose of this Action Plan is to present guiding principles, goals, and actions to enhance relationships with communities as we carry out our mission to protect human health and the envionment.
EPA will now only require four copies of each EIS to be filed
At least one copy of the entire EIS must be a paper copy; other copies can be on appropriate electronic storage devices - e.g., compact disks (CDs), USB flash drives, or memory cards
EPA is encouraging agencies to publish their EISs online, and provide EPA with the web address via e-mail to EIS-Filing@epa.gov
Procedures for how to submit EISs should EPA activate a Continuity of Operations Plan (COOP) (e.g., in response to an event that makes it impossible for EPA employees to work in their regular facility)
Deliveries by US Postal Service (incl. USPS Express Mail)
US Environmental Protection Agency
Office of Federal Activities
EIS Filing Section
Mail Code 2252-A
Ariel Rios Building (South Oval Lobby)
1200 Pennsylvania Avenue, NW
Washington, DC 20460
Deliveries in-person or by commercial express mail services (incl. Federal Express or UPS)
If the documents are to be delivered in-person, you will need to ask the security guards to phone our office at (202) 564-5400 so we can escort you to the Filing Section.
US Environmental Protection Agency
Office of Federal Activities
EIS Filing Section
Ariel Rios Building (South Oval Lobby), Room 7220
1200 Pennsylvania Avenue, NW
Washington, DC 20004
Federal agencies are required to prepare EISs in accordance with Section 1502 of the Regulations (40 CFR 1502) and to file the EISs with EPA as specified in 1506.9. The EISs must be filed no earlier than they are transmitted to commenting agencies and made available to the public.
If an EIS is hand-carried to EPA, the person delivering the document must complete a form stating that transmittal to all agencies is being made simultaneously with the filing with EPA. This will assure that the EIS is received by all interested parties by the time the EPA Notice of Availability appears in the Federal Register , and therefore allows for the full minimum review periods prescribed in 1506.10.
Federal agencies file an EIS by providing EPA with four (4) copies, including appendices. In addition to the four copies of the EIS that are filed with EPA Headquarters, agencies should provide a copy of the EIS directly to the appropriate EPA Regional Office(s) for review and comment. Material which is incorporated into the EIS by reference is not required to be filed with EPA. The agency filing the EIS (usually the lead agency if more than one is involved) should prepare a letter of transmittal to accompany the four copies of the EIS. The letter should identify the name and telephone number of the official responsible for both the distribution and contents of the EIS, should state that the transmittal has been completed.
EPA encourages Federal agencies to make their EISs available on the internet. Agencies that do publish EISs to the internet should send EPA a copy of the web address (i.e., URL) for the document. The appropriate information should be e-mailed to: EIS-Filing@epa.gov concurrent with filing the EIS as required above.
Once received by EPA, each EIS is stamped with an official filing date and checked for completeness and compliance with 1502.10 of the CEQ Regulations. If the EIS is not “complete” (i.e., if the documents do not contain those elements outlined in 1502.10 of the CEQ Regulations), EPA will contact the lead agency to obtain the omitted information or to resolve any problems prior to publication of the Notice of Availability in the Federal Register .
Agencies often publish (either in their EISs or individual notices to the public) a date by which all comments on an EIS are to be received. Agencies should ensure that the date they use is based on the date of publication of the Notice of Availability in the Federal Register . If the published date gives reviewers less than the minimum review time computed by EPA, then EPA will send the agency contact a letter explaining how the review period is calculated and the correct date by which comments are due back to the lead agency. This letter also encourages agencies to notify all reviewers and interested parties of the corrected review periods.
EIS Filing Procedure for Continuity of Operations Plan (COOP) Events
In order to ensure official filing of EISs in the event of a COOP event, when EISs cannot be physically delivered to EPA, Federal agencies will need to send EPA a copy of the EIS cover sheet to the e-mail address identified above. In turn, EPA will use the cover sheet information to publish the weekly EIS NOA in the Federal Register .
During the COOP event, filing agencies should not submit the four copies of the EIS to the EPA. However, once the COOP event is over, filing agencies will have 14 days to submit the four copies of all EISs filed during the event to the EPA's Filing Section. If EPA does not receive the four copies of the EIS filed during the COOP event within 14 days, it will publish a notice in the Federal Register retracting the NOA for that EIS.
EPA will prepare a weekly report of all EISs filed during the preceding week for publication each Friday under a Notice of Availability in the Federal Register . At the time EPA sends its weekly report for publication in the Federal Register , the report will also be sent to the CEQ. Information included in the report for each EIS is the same as the data entered in EPA's computerized data file. This includes an EIS Accession number (created by EPA), EIS status (draft, final, supplemental), date filed with EPA, the agency or bureau that filed the EIS, the state and county of the action that prompted the EIS, the title of the EIS, the date comments are due and the agency contact.
The minimum time periods set forth 1506.10(b),(c), and (d) are calculated from the date EPA publishes the Notice of Availability in the Federal Register . Review periods for draft EISs, draft supplements, and revised draft EISs shall extend 45 calendar days unless the lead agency extends the prescribed period or a reduction of the period has been granted. The review periods for final EISs and final supplements shall extend for 30 calendar days unless the lead agency extends the period or a reduction or extension in the period has been granted. If a calculated time period would end on a non-working day, the assigned time period will be the next working day (i.e., time periods will not end on weekends or Federal holidays).
On March 30, 2011, President Obama signed Presidential Policy Directive (PPD) 8 on National Preparedness . This directive instructs the federal government to take action to strengthen our nation's security and resilience against a variety of hazards, including terrorism, pandemics, and catastrophic natural disasters. It reflects this administration's belief that the entire emergency management team –all levels of government, the private and non-profits sectors, and individual citizens – plays a key role in keeping our communities safe and secure, meeting the needs of survivors when disaster strikes, and preventing the loss of life and property. Specifically, the directive will help us continue to strengthen this entire emergency management team by directing the government to develop a new national preparedness goal, national preparedness system, comprehensive campaign to build and sustain national preparedness, and national preparedness report based on this new goal.
So how will the PPD get implemented?
We look forward to working extensively with stakeholders at all levels of government, the private and non-profit sectors, and the public to develop the PPD implementation plan and to carry it out once it is finalized. The White House National Security Staff is currently coordinating this process.
All of us can contribute to national preparedness. This administration is dedicated to working with all members of our emergency management team to build a stronger national preparedness system that leverages all elements of our society – federal, state and local governments, the private sector, non-governmental organizations, faith-based and community partnerships, and individuals – to meet the security, preparedness and resilience needs of our communities.
How far can the Nigerian mining sector fare in view of government's attitude to it? This is one of the posers raised by the World Bank Country Director for Nigeria Mr. Onno Ruhl
Having had an overview of the sector in the last six years, he noted that although the government has put in place a mining law, mining cadastre office and outstanding geological data, it cannot sustain the this feat without a reliable funding base.
To this end, the World Bank Country Director for Nigeria put it succinctly that progress will be made "on the operationalization of the access to the Sustainable Minerals Fund as well as the Natural Resource Development Fund."
He was only to appear at the commissioning of the Mining Cadastre Office in Abuja, but Ruhl took the opportunity to advise the Federal Government that the Ministry of Mines and Steel Development needs a reliable budget to embark on capital projects. He said: "the ministry needs a reliable budget not just a recurrent budget but a capital budget especially."
A critical look at the 2011 Appropriation Bill lends credence to his advice. In the bill, the main ministry and the six agencies are scheduled to regulate the sector with N13, 754,925,050. Of this budget, the capital expenditure from which government could embark on capital projects is simply N2,242,287,981.
Hitherto, the only substantial funding the sector looks forward to is the N9b NEXIM planned to release to the sector by 2015 even as the minister Architect Musa Sada is worried that the target is for the mines to be operational in the next five years.
For instance, the World Bank Sustainable Management of Minerals Resources Project (SMMRP) has been the fulcrum of mining development in the country since 2005. With its assistance, the ministry established the Nigerian Institute of Mining and Geosciences (NIMG) in Jos last year.
Besides, various Artisanal and Small Miners across the country have received the SMMRP grant via different cooperative societies. In the same vein, the World Bank in April this year awarded the NIMG a grant of $5000 for its research and minerals development projects.
The unsightly film on our “clean” dishes had become a source of great frustration in our household. Dish washing was the job of my daughter and she was evidently was really slacking off. We worked with her on critical strategies like pre-washing, proper loading technique and the importance of rinse aids. Still, we found that the dishes usually had to be washed at least twice and with increasing amounts of detergent. In this lousy economy and runaway food and fuel inflation, I was using 50% more Cascade detergent and running twice as many loads. This deal worked out great for the the water and electric utilities, and especially for P&G (Proctor and Gamble) but not so well for us.
As a conservative, I believe there is a right way and a wrong way to do just about anything from how to install toilet paper to what ingredients are key to a product. That makes me a consummate label reader. So one day I noticed that Cascade was “phosphate free”. That struck me as really odd because I dutifully inject that naturally occurring element into the ecosystem every time I use my Miracle Grow “Bloom-booster” plant food. So how could something that is good for plants be evil for the environment?
I asked my friend Kat, who is a full time environmental activist and I challenged her. I am now using at least twice as much water and electricity, not to mention time as I spent before on clean dishes. She toed the party line, that too much phosphates in sewer systems somehow creates too much algae which disrupts ecosystems.
So I explained my situation and the fact that a huge corporation about which she should be suspicious of before me, was making out like bandits. I asked her, “Do you realize you are working for the man?” “What?” She asked. The irony was quite amusing.
It would be funny were it not so outrageous. The whole thing reminds me of the two-flush toilets the Government mandated ostensibly as a way to conserve water and the new light bulbs that GE (Government Electric) has convinced the dim bulb Congress to force us to buy.
The phosphate free detergent is so egregious because this one is too unsupportable for even the Congress to enact it. Most of the environmental phosphates come from poop! So the lobbyists turn to the states and successfully obtained phosphate bans in the 17 silliest state lawmaking bodies. Playing both sides, P&G still sells it because it is the only solution that really eliminates the white film.
As a former lawmaker, the question I have is who was paying the lobbyists in favor and who was paying the lobbyists against. Were there any against? Did P&G send in an army of lobbyists to fight this at every turn? Did they take out full page ads in the New York Times and warn America that they would be wasting twice as much detergent, water and electricity? If they did, they capitulated early because now that 17 states have banned phosphates in dish washing detergent, the folks at P&G have now embraced the ban.
My friend Kat had a suggestion. She said I could find this really great eco-friendly detergent at, of all places, Whole Foods. Sure, it costs more, but it works. There is no way I will be making any special trips to that company. We tried to support it with a BUYcott after it's CEO opposed Obamacare. Instead, the company forced out the CEO for his political sin. Instead, I found a much better solution.
Thank you Walgreens for carrying “Sun Sations” for three bucks, on sale for $1.99. You are right, my dishes really are once again “virtually spotless”. Moreover, it is made in the USA, in red state Utah. Salt Lake City, no less. God bless America! Go jump in a lake, P&G!
The Wall Street Journal has a long piece about the prospect of using the state to move part of the U.S. transportation fleet from oil-derived fuels to natural gas. It gives prominent voice to the massive public affairs campaign of T. Boone Pickens, undertaken in the apparent quest for a legacy, locking in subsidized billions for his natural gas fortune as a swansong to a prosperous career.
This campaign takes the form of a bill embraced by ostensible fiscal hawks , causing an uproar and enabling the media to describe the Republicans ‘circular firing squad', of a base taking umbrage at Members abandoning their pledges of fiscal sobriety at the drop of a billionaire's phone call. Well played, gentlemen.
The vehicle was not Pickens' first choice. His first choice was a windmill mandate, transparently pushed by a handful of gas interests, including Chesapeake Energy's Aubrey McClendon, to put a green hat on their efforts to use the state to displace coal's market (one of McClendon's group's first television ads stated up front, “more wind means more gas”: windmills don't work that often, so they need ‘backup' to run wastefully all the time, cycling up and down, and for various reasons inevitably this means gas-fired electricity).
Coal was difficult to budge, what with centuries of it domestically, so some gas folks have been helping the greens' war against coal for about two decades. This is their latest foray.
And, astroturfers, please hold the mail. I happened to be in the room in 1997 with the American Gas Association, BP, and Enron as they worked with green pressure groups, as radical as the Union of Concerned Scientists as well as more mainstream, anti-coal activists like NRDC, to get a global warming treaty and a domestic cap-and-trade scheme. I couldn't believe my ears and said so, which in a matter of weeks led to us parting ways.
When Pickens was pitching his Plan A in a particular off-the-record meting a few years ago, I congratulated him on discovering my old boss Ken Lay's business plan: he had some gas interests, bought a bunch of windmills on the cheap because they aren't economic investments, then set about to use his lobbying muscle to make them — not economic, but as President Obama says over and over — “the profitable kind of energy”.
The windmill mandate belly flopped. So Pickens unloaded his windmills and reached up another sleeve. It entails keeping his conservative friends close, and the left-wing pressure groups even closer. All of which is fine, except the nominal conservatives going along with it.
Now, the argument goes, we have lots of natural gas domestically so, with oil at a high price we should move transportation onto natural gas; although this cannot happen without robbing taxpayer Peter to pay gassy Paul, according to anyone cited in the WSJ article.
Of course, we also have vast quantities of oil , likely all of it recoverable at a per-barrel price around half of where it stands today. So that's not really much of an argument for such wrenching, expensive, uneconomic intervention, now is it?
But this is the sort of advocacy that bad ideas are forced to employ. As my CEI colleague Myron Ebell wrote :
Why are billions of dollars of taxpayer-funded subsidies needed? According to T. Boone Pickens's web site, it's because natural gas vehicles are cheaper to operate than gasoline or diesel vehicles: “Even with higher initial costs (which will disappear as manufacturing ramps up) the life-cycle costs of NGVs [natural gas vehicles] are significantly lower. Fuel costs are at least 15 percent less using natural gas rather than gasoline or diesel.”
So people need to be paid in order to make them want to buy vehicles that will save them money. Yes, that makes sense: I always prefer the more expensive product unless there is a government rebate for the cheaper one.
Given all of this, we have three takeaways from today's Journal piece.
First, here is the chart of countries this idea seeks to have us be more like.
Message: be more like Third-World countries. But for Italy, which has long directed nearby North African gas into its economy, no other OECD country is big into this old idea. I know that history of saying “look at Spain” didn't work out to well about the windmills, but countries without oil, like, say, über-green Germany, aren't on the list. Why?
Second, the article acknowledges these countries have been doing this for a long time. And they all still operate as a government program because it is not economic.
Yet the pull-quote gives us the $5-$9 Billion Quote of the Day: “T. Boone Pickens on subsidies for natural-gas truckers: The government should provide five years of subsidies, ‘and then get the hell out of it. It flies by then, or it's a bad idea.'”
Yeah. Once you build a subsidy, and the constituencies dependent upon it, even if it doesn't work Washington is pretty good about letting it expire. It hasn't worked anywhere with decades of support. A clever man, Mr. Pickens.
Finally, the story admits that this very scheme was one of the 'stimulus' schemes. Mr. Pickens is calling for the 'stimulus' to continue, for his investments in the uneconomic, for 5 more years.
Stimulus. Subsidy. Can't say it too many times. That's what this is. Republicans, wise up.
The news media in this country are in a stupor. Either out of ignorance, or complete leftist bias and fraud to protect their socialist hero Barack Obama, the mainstream media has turned a blind eye toward the enormous disaster facing our economy. The greatest Ponzi scheme in world history is coming to an end, leaving America on the precipice of economic Armageddon. Here are the facts the mainstream media does not want you to see- hiding in plain site just like Osama bin Laden was.
Bill Gross is the world's biggest bond trader. He runs the PIMCO bond fund with over $250 billion under management. He recently disclosed through financial filings that PIMCO has sold every single U.S. bond in its portfolio. Local, state, federal bonds- all sold off. Gross knows bonds are about to default in record numbers. And most importantly, he knows that the last resort of the Federal Reserve buying our own government's bonds at auction is a certain sign of Armageddon. When no one is left to buy your own debt but you, you have reached the end of a Ponzi Scheme.
Then there is legendary Wall Street investor Stanley Druckenmiller. He, too, is calling the Fed's bond purchases a fraud and a Ponzi scheme. Druckenmiller says, “There is a phony buyer of $19 billion per week of Treasury Bonds.” The phony buyer he refers to is the U.S. government. Druckenmiller knows that when a country resorts to buying its own debt, we are seeing the last days of the Roman Empire.
Another Wall Street legend, Jim Rogers, spoke out at a business conference last week. He said he plans to short sell (bet against) U.S. bonds with both hands. Rogers added, “If any of you have bonds, I would urge you to go home and sell them. If any of you are bond portfolio managers, I would get another job…if I were you, I would think about becoming a farmer.”
Today is the 60th day, and Obama must get Congressional approval to continue the war in Libya. The war he consulted no one about, the war he did not go to Congress on, the tyrant's war. Remember the hoops Bush jumped through for a year to get congressional and UN approval, and still they raked him over the coals.
What spin will the emperor put on this? Does he dare ignore the Constitution? He makes a habit of it. Nothing new there. This is the most criminal administration ever foisted upon America.
U.S. operations in Libya hit the 60-day mark Friday, but Congress has grown largely silent on the administration's unilateral intervention into the war-torn North African nation.
The 1973 War Powers Act (WPA) — the statute President Obama invoked when he launched forces in March — requires presidents to secure congressional approval for military operations within 60 days, or withdraw forces within the next 30.
“The Most Sordid Scheme in the History of Finance”
Theodore Butler, writing on SilverSeek.com on September 2, reported that there was more than just central bank collusion going on behind the scenes. He tracked an unprecedented wall of short selling of gold and silver – massive "borrowing" of stock, selling it into the market and forcing down the price, then "covering" by buying the stock back at the lower price. Butler wrote:
“In gold, no more than 3 U.S. banks sold short in one month more than 10% of world annual mine production. This was the largest short position in gold and silver ever recorded by U.S. banks . After the massive and concentrated silver and gold short position was established by these U.S. banks, the [gold and silver] markets experienced a historic decline in price. It all took place during the first widespread retail silver shortage in history. It is completely at odds [with] how the law of supply and demand works .”
Butler called it the most sordid scheme in the history of finance. “It makes a mockery of financial regulation and the rule of law,” he wrote. “It allows a large financial entity, or entities, to rip off the investing public and gouge them for obscene profits. It is cronyism, back-room dealing, market fixing and inside information at its worst.” 7
While gold and silver were being shorted to oblivion, the SEC imposed a ban on the short selling of 19 select financial stocks, including Fannie Mae and Freddie Mac. It was blatant favoritism for the privileged few, but Coxe said it was necessary to make financial stock look attractive to potential buyers (particularly sovereign wealth funds), in order to allow the banks to sell their stock and raise the capital necessary to start lending again.
At the same time, Treasury Secretary Paulson sought and was granted an unlimited credit line to Fannie Mae and Freddie Mac directly from the U.S. Treasury, as well as the authority to buy the mortgage giants' stock. Fannie and Freddie were put into a form of bankruptcy called a conservatorship; but unlike in the ordinary bankruptcy, in which creditors divide up the debtors' available assets without government help, in this case the claims of the lenders were guaranteed by the Treasury. Foreign lenders were bailed out while the shareholders were wiped out – including banks, pension funds, and other institutions holding the savings of millions of Americans. In the long run, the “bailout” created more problems than it solved; but according to Coxe, it was a necessary sacrifice to keep the mortgage market functional for the near term.
How near? The Presidential election is now only weeks away. Markets have an uncanny way of looking good before elections.
Rob Kirby, writing in LeMetropoleCafe on September 9, observed that there are laws and stiff penalties against market collusion. The U.S. antitrust laws impose fines of up to $10 million and jail terms of up to 3 years for unfair practices that inhibit competition or monopolize markets in restraint of trade. “I admire [Coxe's] candor,” said Kirby, “but my take on this is that all the perpetrators should face a firing squad, or worse, for treason.” 8
That probably won't happen, however, because the “perpetrators” can claim governmental immunity. The Plunge Protection Team, officially called the President's Working Group on Financial Markets, was formed by President Reagan in response to a stock market crash in 1987 for the express purpose of “maintaining investor confidence” by manipulating markets with public funds. The PPT includes the President, the Secretary of the Treasury, the Chairman of the Federal Reserve, the Chairman of the Securities and Exchange Commission (SEC), and the Chairman of the Commodity Futures Trading Commission (CFTC). 9 Calling the shots is no doubt Secretary Paulson, who now has a $700 billion fund to use for the purpose, after Congress passed his massive bank rescue plan on October 3.
“Socialism for the Rich”
Nouriel Roubini, Professor of Economics at New York University, wrote on his popular blog Global EconoMonitor :
“Socialism is indeed alive and well in America; but this is socialism for the rich, the well connected and Wall Street. A socialism where profits are privatized and losses are socialized with the US tax-payer being charged the bill . . . .” 10
Investment guru Jim Rogers told “Squawk Box Europe”:
“America is more communist than China is right now. You can see that this is welfare of the rich, it is socialism for the rich. . . it's just bailing out financial institutions. . . .
“This is madness, this is insanity, they have more than doubled the American national debt in one weekend for a bunch of crooks and incompetents. I'm not quite sure why I or anybody else should be paying for this.” 11
If we are going socialist, we should own up to it and have some transparency in what's going on. We the people need to know how to plan and to invest for an uncertain future. If we're nationalizing the banks, let's nationalize them all the way, with the profits going back to the people along with the losses and risks. Better yet, let's nationalize the Federal Reserve, so it can issue “the full faith and credit of the United States” directly, without having to back this credit with a multi-trillion dollar federal debt that will never get paid back but just continues to grow. It would actually be less inflationary for the government to print dollars directly than for it to print bonds that are swapped for dollars created on a printing press by a privately-owned central bank, because in the latter case both the bonds and the dollars remain in circulation. U.S. bonds not only serve as money around the world, but they count as the “reserves” for banks to create many times their face value in loans. These bonds never get paid off but just get rolled over from year to year, inflating the money supply just as if dollars were printed directly; but the bonds carry the added burden of perpetual debt and interest payments.
The costly bank bailouts and blatant market manipulations going on today are justified as being necessary to save a private banking system that we think we need to get the credit that keeps the economy running. But we don't actually need private banks to get credit. Many authorities have attested that, contrary to popular belief, banks don't lend their own money or their depositors' money. Every dollar lent by a bank is money created out of thin air on a computer screen. It's just “credit.” The bank “monetizes” the borrower's own promise to repay. The government could issue its own credit in the same way. There are a number of successful historical precedents for this, including the publicly-owned central banks of Australia and New Zealand, which saved those countries from the devastating effects of the Great Depression in the 1930s; and the publicly-owned bank of the colony of Pennsylvania, which funded the Pennsylvania provincial government without taxes or debt in the first half of the eighteenth century. (See Ellen Brown, “How Banks Secretly Create Money,” www.webofdebt.com/articles , July 3, 2007; and “It's the Derivatives, Stupid!”, ibid ., September 18, 2008.)
Today's bankrupt banks dug their own black hole when they loaded up their books with lucrative but highly risky derivative bets that are now backfiring on them. Instead of trying to clean up the banks' books by throwing taxpayer money at this impossible-to-fill black hole, we would be better off simply letting the banks go bankrupt, as President Reagan did with the savings and loan industry in the 1980s. The banks' bad debts could then be discharged in bankruptcy, and their assets could be absorbed into a public credit system with a new, untarnished set of books that would serve the interests of the people and return the profits to the people.
So What Is an Investor to Do?
That still leaves the question of how to negotiate today's very unpredictable markets. The Friday before the white-knuckle October 24 ride, investors were being encouraged to get back into the market. Commentators cheerily announced the best market week in 5-1/2 years, after the Dow climbed from a low of 7,774 on October 10 to a high of 9,924 on October 14. But the week still ended below 9,000, and the market was coming off the most historic plunge since the Great Depression, down from a high of 10,845 on October 3 to below 8,000 a week later. By October 24, the Dow was again hovering near 8,000.
“Frankly, I'm sick of this,” said CNBC market watcher Erin Burnett as she tracked the Dow's wild gyrations on October 23. “Up and down, up and down. It doesn't seem to mean anything or be linked to anything.”
I'm hanging onto my gold and silver stocks out of sheer doggedness; but other beleaguered investors might well decide it's time to pull their money out of a stock market that is looking more and more like a rigged and risky Las Vegas casino and put it somewhere else. As one talk show commentator quipped recently, “I'm fully diversified. I've got some under the mattress, some under the floor boards, some in the backyard.”
Ellen Brown, J.D., developed her research skills as an attorney practicing civil litigation in Los Angeles. In Web of Debt, her latest book, she turns those skills to an analysis of the Federal Reserve and “the money trust.” She shows how this private cartel has usurped the power to create money from the people themselves, and how we the people can get it back. Her eleven books include the bestselling Nature's Pharmacy , co-authored with Dr. Lynne Walker, and Forbidden Medicine . Her websites are www.webofdebt.com and www.ellenbrown.com .
1 Sean Brodrick, “Yes, We Have No Silver,” Money and Markets (October 22, 2008).
2 Bill Murphy, “Is Martial Law in America Right Around the Corner?”, Le Metropole Café (October 16, 2008).
3 Don Coxe Weekly Webcast (September 5, 2008).
4 John Heinzl, “From the Coxe Files: The Real Reason Commodities Are Tumbling,” TorontoGlobe and Mail (September 10, 2008).
5 Timothy Homan, “U.S., Europe, Japan Devised Plan to Prop Up Dollar,” Nikkei Says,” Bloomberg (August 27, 2008).
6 Bill Murpthy, “Midas,” Le Metropole Cafe (October 21, 2008).
8 Rob Kirby, “The Stars Are Aligning – But for What?”, Le Metropole Cafe (September 9, 2008).
9 Executive Order 12631 of March 18, 1988, 53 FR, 3 CFR, 1988 Comp., page 559.
10 Nouriel Roubini, “Comrades Bush, Paulson and Bernanke Welcome You to the USSRA (United Socialist State Republic of America),” Global EconoMonitor (September 9, 2008).
11 “US Is ‘More Communist than China': Jim Rogers,” CNBC (September 8, 2008).
May 20, 2011 Australian company to build plant in Institute
CHARLESTON, W.Va. (AP) - A company based in Sydney, Australia has announced plans to build a factory in Institute that will manufacture activated carbon used to lower mercury emissions at coal-fired power plants.
The $29 million is expected to create about 40 full-time jobs.
According to media reports, Carbonxt Inc. has been operating a pilot plant to produce smaller amounts of activated carbon for about two years in Dunbar.
Carbonxt plans to start construction this fall and complete the project at the Bayer CropScience Institute plant about a year later.
The West Virginia Economic Development Authority on Thursday unanimously gave preliminary approval for a $13 million low-interest loan that will fund part of the project.
Certain industry lobbyists and their allies in Congress are waging war against regulations, attempting to undermine the protections that keep our environment clean, our products and workplaces safe, and our economy prosperous. The legislative centerpiece of their campaign is H.R. 10, the REINS Act , which would require congressional approval for new rules. Find out more about what's going on in Congress.
On May 11, the U.S. Environmental Protection Agency (EPA) suspended the next submission period for the Toxic Substances Control Act's (TSCA) Inventory Update Reporting (IUR). The IUR is an inventory of chemical substances in commerce in the United States. The suspension came a month after the agency received complaints from House Republicans and the chemical industry about difficulties complying with new reporting requirements.
On May 10, on behalf of more than 100 public interest organizations, OMB Watch presented a set of detailed environmental right-to-know recommendations to the Obama administration. Collaboratively drafted and endorsed by advocates from across the country, the recommendations aim to expand access to environmental information, equip citizens with data about their environmental health, and empower Americans to protect themselves, their families, and their communities from toxic pollution.
WASHINGTON, May 10, 2011—112 organizations have endorsed a 102-page set of environmental right-to-know recommendations, which OMB Watch presented to the Obama administration on the groups' behalf. The recommendations, collaboratively drafted by advocates from across the country, aim to expand access to environmental information, equip citizens with data about their environmental health, and empower Americans to protect themselves, their families, and their communities from toxic pollution.
Penny-pinching fever has engulfed Washington, with both parties eager to root out perceived wasteful spending. Several proposals look for savings in the government's information dissemination programs. While some of the proposals are carefully targeted reductions, others would slash funding indiscriminately with damaging consequences to some innovative transparency projects and programs.
An ongoing attack on the nation's regulatory safety net is being led by lawmakers with deep financial ties to the corporations and lobbying groups that often complain about federal standards, campaign finance data show.
The U.S. Senate, hampered by politics and process, recently failed yet again to pass food safety reform legislation. The Senate is in the process of considering both related and unrelated amendments to the bill during the lame-duck session.
Nearly 100 public interest advocates from around the country recently convened in Washington, DC, to build an agenda for improving the public's right to know about environmental and public health threats. Advocates for public health, safety, and the environment met to develop federal policy proposals that would enhance government engagement with communities and improve access to information crucial to protecting the public. The emerging agenda seeks to capitalize on recent openness initiatives by the federal government and the Obama administration's efforts to improve government transparency, participation, and collaboration.
The National Mining Association (NMA) filed a lawsuit on July 20 against the U.S. Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers (Corps) claiming that new enforcement guidelines issued by EPA in April unlawfully obstruct permitting of coal mining operations. NMA claims the new guidelines effectively prohibit certain types of surface mining and that EPA denied NMA the opportunity to review and comment on the guidelines before they became final.
On April 26, federal agencies published their updated rulemaking agendas outlining past, present, and future regulations. The agendas provide insight into the Obama administration's plans and expectations in the coming months.
In the wake of the latest coal mining disaster that killed 29 miners at the Upper Big Branch Mine in West Virginia, calls for safety reforms and enhanced regulatory powers echo once again. While mine safety has improved since the recent high death toll of 2006, it remains to be seen if this incident will result in significant changes or if deaths and injuries will continue to be perceived as a cost of doing business.
The U.S. Environmental Protection Agency (EPA) has released its plan for improving the agency's transparency as part of the Obama administration's Open Government Directive (OGD). The EPA was an early proponent of the new openness agenda, with EPA Administrator Lisa Jackson calling for the agency to operate " as if it were in a fishbowl ." The agency's new Open Government Plan documents numerous ongoing and future actions that should continue the agency's advance toward transparency and accountability.
Political developments in recent years forced environmental right-to-know advocates into a constant state of defense. Despite these challenges, citizens have repeatedly exercised their right to know and achieved numerous successes, proving that access to environmental information and public engagement are vital democratic tools.
The U.S. Environmental Protection Agency (EPA) announced new guidance April 1 that should limit the impacts of mountaintop coal mining in Appalachia. The agency issued the guidance to clarify EPA's expectations regarding legal and scientific interpretations when issuing permits for the destructive surface mining practice.
The U.S. Environmental Protection Agency (EPA) recently launched a new online database that provides access to the scientific studies used in making key regulatory decisions. The EPA released the Health and Environmental Research Online (HERO) database on March 24. According to the agency, this action "is part of the [Obama administration's] open government directive to conduct business with transparency, participation, and collaboration."
The Obama administration recently announced new standards that will improve fuel efficiency in new vehicles starting in 2012. The standards mark the first time in U.S. history that the federal government has crafted regulations aimed specifically at reducing greenhouse gas emissions and stemming the impact of global climate change.
A recent proposal by the Occupational Safety and Health Administration (OSHA) would endanger workers by reducing the amount of information on chemical hazards provided to them, according to several public interest groups. OSHA's proposal is part of its effort to make its Hazard Communication Standard conform to a United Nations system for classifying chemicals. The effort has been criticized by several public interest groups who view portions of it as an unnecessary contraction of workers' right to know and as contrary to the rhetoric of transparency and movement toward greater disclosure seen elsewhere in the Obama administration.
On March 16, a House subcommittee held a hearing on proposed legislation to modernize the Occupational Safety and Health Act (OSH Act). The House bill, the Protecting America's Workers Act (PAWA), would update civil and criminal penalties and provide enhanced protection to workers who report unsafe working conditions.
On March 3, the Project on Scientific Knowledge and Public Policy (SKAPP) released the results of a two-year research effort to explore the working environment of federal scientists in the public health and environmental fields. The results showed that not only is there political interference in their work, but that scientists also faced a series of obstacles that delay the study and dissemination of scientific information that affects the public every day.
A new report has found that foodborne illnesses take a $152 billion toll on the American economy each year. Other hazards that regulators keep tabs on, such as air pollution, can increase medical costs if the public is not adequately protected.
The Obama administration has proposed new guidance intended to increase transparency and public involvement in the implementation of one of the nation's oldest and most important environmental laws. The 40-year-old National Environmental Policy Act (NEPA) creates a process where federal agencies must review the environmental impacts of their actions and evaluate alternatives while working to include public participation in the process.
The Securities and Exchange Commission (SEC) took a significant step last month toward expanding the scope and quality of corporate disclosures as they pertain to the environment. On Jan. 27, the SEC voted to provide guidance "clarify[ing] what publicly-traded companies need to disclose to investors in terms of climate-related 'material' effects on business operations, whether from new emissions management policies, the physical impacts of changing weather or business opportunities associated with the growing clean energy economy."
Agencies, including those dealing with environmental and public health issues, are seeking ideas on how to improve transparency, public participation, collaboration, and innovation, and the agencies are receiving numerous suggestions. The challenge for individual agencies is to shape the diverse ideas into the strategies and goals that will comprise their Open Government Plans.
The White House Office of Management and Budget (OMB) has repeatedly inserted itself in the development of a U.S. Environmental Protection Agency (EPA) program designed to study the effects of chemicals on human and animal endocrine systems.
A new report from Environment America uncovers a dirty truth in publicly available government databases about the country's waterways – widespread toxic pollution dumped by industrial facilities. More than 230 million pounds of toxics were discharged into 1,900 waterways across all 50 states in 2007, including chemicals known to cause cancer and birth defects.
The U.S. Environmental Protection Agency's (EPA) Office of Inspector General (OIG) recently provided two assessments of EPA's weaknesses in enforcing water and air programs. The OIG cited management problems at the federal and regional levels that largely indict the Bush administration's lax approach to environmental enforcement.
The U.S. Environmental Protection Agency (EPA) launched an online forum on the agency's blog to collect comments on a potential change to the way metal mining companies report their pollution. Controversial court decisions in recent years have reduced the amount of information on the industry's pollution. This online forum marks at least the third time the Obama administration's EPA has used a "Web 2.0" tool to engage the public on matters of proposed agency policies.
The U.S. Environmental Protection Agency (EPA) recently announced it will increase the influence of scientists and the level of transparency in setting standards for common air pollutants, a reversal of a Bush administration policy that politicized scientific analyses. Clean air advocates are welcoming the policy reversal as a restoration of the role of science in crafting policies that impact environmental and public health.
During his May 12 confirmation hearing, President Barack Obama's choice for regulatory czar, Cass Sunstein, portrayed himself as a pragmatist, one who will not use economic analysis as a straitjacket for regulations. In pledging to look to the law first for regulatory guidance, Sunstein tried to distance himself from past regulatory czars who strongly supported economic analysis to judge the adequacy of health, safety, and environmental rules.
In a recent memorandum to employees, the head of the U.S. Environmental Protection Agency (EPA) outlined broad principles of transparency that will govern the agency's interactions with the public. By promising to operate EPA as if it were "in a fishbowl," Administrator Lisa Jackson reinstated a principle many considered ignored by the previous administration. Jackson also announced measures to promote transparency in EPA's economic stimulus activities.
WASHINGTON, May 5, 2009—OMB Watch today launched a redesigned and expanded website for the Right-to-Know Network (RTK NET) at www.rtknet.org . The website serves as a source for information about environmental and public health threats and opportunities for public engagement with environmental policy, and it offers news, data, and analysis of environmental right-to-know issues.
The U.S. Environmental Protection Agency (EPA) has taken the first crucial step toward creating a transparent and accountable climate change program by proposing a greenhouse gas registry. The registry would require thousands of facilities from a broad range of industries to record and report their annual emissions of greenhouse gases. A comprehensive registry is a prerequisite for any future efforts to reduce greenhouse gas emissions.
In the first major move by the federal government to address climate change, the U.S. Environmental Protection Agency (EPA) has declared heat-trapping greenhouse gas emissions a threat to public health and welfare, setting the stage for potentially major regulations.
The U.S. Environmental Protection Agency (EPA) is taking steps toward improving public access to pollution information and is seeking ideas from the public for improving the Toxics Release Inventory (TRI) program. During a national conference on TRI the week of March 30, the EPA presented several new tools for accessing and analyzing pollution data that will soon be available to the public. The TRI, a bedrock right-to-know program, has not been expanded since 2000, and EPA has been heavily criticized for its management of the program in recent years.
The U.S. Supreme Court recently ruled 6-3 that the U.S. Environmental Protection Agency (EPA) can weigh costs against benefits under parts of the Clean Water Act. The court said EPA was not required to impose the most environmentally protective requirements on power plants that inadvertently kill millions of fish.
A new Department of Labor report is highly critical of a Bush administration program designed to improve workplace safety. The report links poor enforcement to the deaths of workers at high-risk facilities – the specific targets of the special program. Poor quality data and inadequate training, inspections, and enforcement plagued the program.
On March 11, President Barack Obama signed into law a restoration of the Toxics Release Inventory (TRI), reversing changes made by the Bush administration that had weakened the program. The measure was included deep within the Omnibus Appropriations Act of 2009 and restored the rules that existed before the U.S. Environmental Protection Agency (EPA) weakened them in December 2006.
WASHINGTON, March 3, 2009—Hundreds of national, state, and local groups and individual signers today called on EPA Administrator Lisa Jackson to reverse a 2006 Environmental Protection Agency rule that limits public access to information about toxic chemical releases. The rule, finalized in December 2006, allows industries to withhold information on the quantities and locations of toxic chemical releases previously reported to the Toxics Release Inventory (TRI).
The U.S. Environmental Protection Agency (EPA) is in need of significant improvements in the implementation of the agency's Risk Management Program, according to a new report from the EPA Office of Inspector General (OIG). The OIG report highlights the need for greater accountability for the Clean Air Act program. However, EPA has refused to provide program data online, reducing the public's ability to ensure the safety of vulnerable communities.
As the nanotechnology industry continues to grow, government policies are slowly being developed to gather basic information on potential threats to the environment and public health. For years, the federal government has promoted the nanotech industry, even though little has been known about the environmental and public health impacts of the materials. Recent actions by California, Canada, and the U.S. Environmental Protection Agency (EPA) will require companies to report data on potential threats from the use of nanotechnology.
U.S. Department of Agriculture (USDA) Secretary Tom Vilsack announced Feb. 20 that a food labeling rule finalized in the last days of the Bush administration will go into effect as scheduled. The rule has been under review at USDA in accordance with a Jan. 20 memo from White House Chief of Staff Rahm Emanuel, which placed a moratorium on all final rules not in effect at the time President Barack Obama took office. However, Vilsack is asking food producers to follow additional voluntary country-of-origin labeling practices that could close loopholes left by the Bush rule.
The U.S. Environmental Protection Agency (EPA), led by new administrator Lisa Jackson, is taking its first steps toward tackling global climate change. Jackson has announced her intent to review several Bush-era policies that limited the agency's ability to curb greenhouse gas emissions through regulation.
Fish and Wildlife Service Announces Work Plan to Restore Biological Priorities and Certainty to Endangered Species Listing Process
The Ugly Truth BY BEVERLY FORD NEW ENGLAND CENTER FOR INVESTIGATIVE REPORTING Sunday, May 22, 2011 3:44 AM EDT
Many state Superfund sites still toxic after 30 years, over$1B In all his years as an attorney, Jan Schlichtmann has had few lawsuits so profoundly affect him as a 1982 case involving eight Woburn families and a public water supply contaminated by toxic chemicals.
Profiled in numerous newspaper, TV and radio accounts, along with the movie "A Civil Action" starring John Travolta, the lawsuit became a watershed event in environmental politics for Massachusetts and the nation.
Yet today, almost 30 years after that landmark court case, the wells that supplied both toxic drinking water and a legacy of cancer to Woburn remain contaminated despite a $21 million cleanup effort.
And no one, not even the U.S. Environmental Protection Agency which monitors the site as part of the federal Superfund program, knows whether humans are still being exposed to its witch's brew of chemicals, federal records show.
"Woburn made people see the profound health effects that can occur from contaminated sites," said Schlichtmann, who settled the 1982 case for $8 million. "The ugly truth is that the damage we do today will take a long time to fix." Woburn isn't alone when it comes to facing "the ugly truth" hidden in its soil and water. Twenty-five other Bay State communities, all home to Superfund sites, still live with a toxic legacy, despite millions of dollars spent to clean them up.
From Cape Cod to the Berkshires and beyond, few communities are left untouched by the contamination. With 3,000 to 5,000 polluted sites currently listed with the Massachusetts Department of Environmental Protection and 40,000 others already cleaned up by that agency since 1985, the state remains a patchwork of toxicity.
"They're everywhere," Eugene Benson, legal counsel and program director for Alternatives for Community and Environment, said of the many contaminated sites that dot the Massachusetts landscape. "They range from sites that aren't serious to sites that are very serious.
"Some of the worst and most extensive sites are on the Superfund list," he notes. "But there still are some very bad sites, as far as contamination and the toxins, that are not on the Superfund list, too."
Benson, whose organization works to achieve environmental justice for low-income communities and communities of color, said DEP's website offers a way for residents to check out toxic waste sites in their own community.
The worst of those sites, the ones that pose an imminent health risk, rise to federal Superfund status, however. In Massachusetts, 31 sites have attained that ranking.
According to EPA records, at least one-third of those sites may pose a health risk to people living and working nearby. At five of those locations, the risk of human exposure is noted in EPA cleanup impact profiles, all compiled since 2010.
At some sites like New Bedford Harbor, where PCB-contaminated seafood is a concern, the exposure risk is listed as "not under control," meaning that human contact with pollutants is possible.
At other sites, such as the Industri-Plex site in Woburn, where cleanup is estimated to run up to $13.6 million, contaminated groundwater continues to migrate to other areas, according to those same reports.
At six other state hot spots, there is insufficient data to determine the status of groundwater migration or human exposure to toxins, the EPA cleanup impact profiles found.
Avoiding exposure is even more difficult at some toxic properties because there are no signs posted to warn of the contamination. Others, like Iron Horse Park in Billerica, are still open for business, even though the EPA lists that location as one where human exposure is not yet under control.
In towns like Wilmington, where toxic waste discovered in 1980 still hasn't been fully cleaned up, residents worry that a spike in cancer clusters is caused by the poisonous brew found in the wells they were drinking from until the town closed them in 2002. The EPA, which added the 53-acre former chemical plant in Wilmington to its Superfund list in 2006, is only now conducting studies.
Even parcels that have been on the list the longest, like the Baird and McGuire chemical plant in Holbrook - ranked as the 14th worst site in the nation when it was added to the Superfund roster in 1982 - continue to be tainted.
Despite a cleanup effort estimated by the EPA to top more than $220 million, a groundwater study conducted last year under that federal agency's authorization found metals such as arsenic still remain in high concentrations on that site 30 years later.
Yet, it's not just chemical companies that are running up the toxic tab. In a state where cleanup costs for commercial sites are estimated by the EPA to stretch beyond $1 billion, the biggest polluter may very well be the federal government.
With six military facilities on the Superfund list, the federal government also is linked to at least six other contaminated sites in Palmer, Lowell, Attleboro, Concord, Tyngsborough, and Bridgewater, according to confidential EPA records of the top 100 "potentially responsible parties" obtained by the Center for Public Integrity.
W.R. Grace ranks second with ties to seven sites in Woburn, Dartmouth, Acton, Lowell, Billerica, Bridgewater, and Tyngsborough, those same records show.
The cost of cleaning up all those toxic minefields remains unclear. EPA says the "potential responsible parties" who often pay for the cleanup are not required to release cost figures. Neither the EPA nor Department of Defense officials were able to produce cleanup figures for any of the six military facilities in Massachusetts.
As toxic waste continues to percolate in groundwater and remediation costs soar into the stratosphere, it all seems like bad news to enviro-conscious activists like Taryn Hallweaver, the Eastern Massachusetts community organizer for the Toxics Action Center, a New England-based advocacy group.
"We've got an industrial legacy like nowhere else in the country," she says of the state's toxic history, which stretches back to the 1800s and the Industrial Revolution. "It's become a serious issue for Massachusetts. These sites just aren't getting cleaned up."
A generation has already passed since the Woburn site and three others in Massachusetts landed on the EPA's list of the 114 most contaminated spots in America. Created in 1980 in response to health concerns over toxic waste in neighborhoods like New York's Love Canal, Superfund - formally known as the Comprehensive Environmental Response, Compensation and Liability Act - is today comprised of more than 1,300 toxic hot spots nationally.
In Massachusetts, the four sites that made it onto the nation's first Superfund list are still on it. Sixteen others, all added during the 1980s, remain on that list, as well, despite more than $500 million already invested in their cleanup. A quarter of those 20 locations - New Bedford Harbor, Fort Devens, Iron Horse Park in Billerica and Woburn's Industri-Plex site - still show signs of contamination nearly three decades after first being identified.
In Western Massachusetts, where PCS Resources, a waste oil refinery and solvent recovery plant in Palmer earned Superfund designation in 1983, contaminated soils have been removed and cleanup levels achieved.
But in 2010, an EPA study of the site found that 1,4-dioxane, a contaminant not previously assessed, may be present on that property.
Part of the reason behind the snail's pace of cleanup is due to the lack of technology to quickly remove toxins from soil and groundwater.
Cleaning up ground and water contamination is an arduous and cumbersome task that may take decades to complete, officials maintain.
Site owners also force lengthy delays, challenging EPA decisions and balking at the cost of cleanup, creating a lull that can sometimes last for years. Yet, despite all the wrangling, EPA says it routinely collects 70 percent of all cleanup costs from the businesses that caused the contamination.
In 2002, however, the agency faced perhaps its biggest challenge of all when Congress slashed the Superfund's primary income source - a tax targeting industrial polluters that once generated about $1 billion annually. By the end of Fiscal 2003, the fund's balance was zero, down from a peak of $3.8 billion in 1996.
Today, appropriations are made by Congress, which last month proposed slashing $23 million from the Superfund budget in a cutback that would reduce it from $1.31 billion to $1.28 billion for the rest of the fiscal year.
Enforcement actions by the EPA supplement that budget, with responsible businesses paying for cleanup costs often under court-ordered agreements, EPA officials say.
Still, the budget cuts have taken a toll.
A precipitous scale-down of cleanup activity has cut mitigation by more than 50 percent, notes Ed Hopkins, the director of environmental quality for the Washington, D.C.-based Sierra Club.
"During the Clinton administration, roughly 80 sites were getting cleaned up every year," he says. "In the last eight or nine years, that rate has fallen by half. And, more recently, it's been even lower."
Yet despite that decline, state and federal officials - and even some environmentalists - are optimistic about our toxic fate.
Toughened federal regulations and more public vigilance have helped curtail the creation of new Superfund sites, says Robert Cianciarulo, chief of the Massachusetts Superfund Section for EPA. He notes that the last time a site was added to the Bay State's Superfund list was in 2006.
Only three sites have made that list in the last 10 years, he adds.
"Our practices have really changed, in that we're not creating new Superfund sites the way we have historically," said Jo Anne Shatkin, CEO of CLF Ventures, the non-profit consulting arm of the Conservation Law Foundation. "Despite the fact that we have so many sites here and so many sites that still need to be cleaned up, we have made progress."
Still, some worry that further budget cuts could take the sting out of the state and federal agencies that serve as environmental watchdogs, slowing down mitigation efforts even further.
"If EPA doesn't have the resources to investigate problems and enforce the law, it takes away the incentive for industries to clean up their own problems," Hopkins said. "We need to have a dedicated source of funding to get this job done in a timely way."
Even Schlichtman agrees with that.
"We don't have another 50 years to clean up the messes we are creating now," he said. "We have to take action to prevent this large scale pollution, or we're not going to be around at the end of the century."
SIOCON, Zamboanga del Norte—Canadian mining firm TVI Resources has finally agreed to take penance for violating the rights of the Subanen people and pay fines the tribal way.
TVI's compensation for its “faults” came nearly 15 years after it started operating here.
“This is our way of penance for desecrating the sacred Mt. Canatuan. It's an atonement for our sins,” said Joel Alasco, manager of the company's community relations and development office.
At the start of the seven-day “boklug,” the Subanen's way of atonement for sins, on Tuesday, TVI officials publicly acknowledged the authority and leadership of Timuay Jose “Boy” Anoy.
A meeting with elders had earlier been called. It was hosted by the council of chieftains of the Seven Rivers.
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GAO report The environmental impacts of OHV use, both direct and indirect, have been studied and documented over the past several decades. In fact, in 2004, the Forest Service Chief identified unmanaged motorized recreation as one of the top four threats to national forests, estimating that there were more than 14,000 miles of user-created trails, which can lead to longlasting damage. Potential environmental impacts associated with OHV use include damage to soil, vegetation, riparian areas or wetlands, water quality, and air quality, as well as noise, wildlife habitat fragmentation, and the spread of invasive species. For example, studies on the impacts of OHV use indicate that soil damage can increase erosion and runoff, as well as decrease the soil's ability to support vegetation. Additionally, research has shown that habitat fragmentation from OHV use alters the distribution of wildlife species across the landscape and affects many behaviors such as feeding, courtship, breeding, and migration; habitat fragmentation can also negatively affect wildlife beyond the actual amount of surface area disturbed by roads. In 2007, the U.S. Geological Survey reported that as a result of OHV use, the size and abundance of native plants may be reduced, which in turn may permit invasive or nonnative plants to spread and dominate the plant community, thus diminishing overall biodiversity. Another potential impact of OHV use is damage to cultural resources, including archaeologically significant sites such as Native American grave sites, historic battlefields, fossilized remains, and ruins of ancient civilizations. OHV use on federal lands generally increased from fiscal year 2004 through fiscal year 2008, according to a majority of field unit officials from the Forest Service, BLM, and Park Service. Most field unit officials reported that environmental impacts associated with OHV use occurred on less than 20 percent of the lands they manage, although a few field unit officials reported that 80 percent or more of their lands are affected. Most field unit officials also indicated that social and safety impacts occasionally occurred on their lands. Most field unit officials from all three agencies indicated that environmental impacts of OHV use occur on less than 20 percent of the lands they manage; a few field unit officials, however, reported that 80 percent or more of their lands are affected by OHV-related environmental impacts.7 Forest Service and BLM field unit officials were more likely to report greater percentages of land with environmental impacts than Park Service field unit officials. The OHV-related environmental impacts that field unit officials identified as most widespread were soil erosion, damage to vegetation, wildlife habitat fragmentation, and the spread of invasive species. For example, officials from the Tonto National Forest in Arizona noted that the main impact associated with OHV use in the forest has been soil erosion, particularly in areas with highly erodible soils (see fig. 4). Additionally, officials from BLM's Phoenix District in Arizona noted that OHV use has fragmented desert tortoise habitat because the tortoise can be disturbed by OHV noise. Other reported environmental impacts included damage to riparian zones and harm to threatened or endangered species. Specifically, 31 field unit officials (7 percent of units that reported having OHV use) indicated that at least one environmental impact of OHV use affected more than 80 percent of their lands. The severity of certain OHV-related environmental impacts, such as soil damage, may also depend on the ecosystem in which OHV use occurs (see fig. 5). For example, BLM officials from the El Centro Field Office in southern California explained that the Imperial Sand Dunes are dynamic and soil damage from OHV use tends to be minimal, since most tracks are quickly erased by the wind. In contrast, certain desert ecosystems, including those in Arches National Park , have sensitive soils, and recovery from OHV-related disturbance to soils and plant life can be very slow. Additionally, Forest Service officials from the Manti-LaSal National Forest in central Utah stated that soil erosion is a major environmental impact associated with OHV use on their forest. Damage to the forest's soils often occurs from OHV use in the late fall (after the first snow), when the ground is wet but not frozen. While officials at the Manti-LaSal National Forest said that these damaged areas could recover in about a year with rehabilitation efforts, the areas often take 4 to 5 years to recover because the forest lacks staff to rehabilitate the lands more quickly. Similarly, Park Service officials in Big Cypress National Preserve said that the environmental impacts primarily associated with OHV use include disturbance to soils and vegetation, as well as disruption to the hydrology of the wetland ecosystem. These officials further stated that while plant life regenerates fast, ruts from OHV use can persist for more than a decade. Social and safety impacts related to OHV use occasionally or rarely occur on federal lands; although, an annual average of about 110 OHV-related fatalities occurred nationwide from fiscal year 2004 through fiscal year 2008 according to data provided by field unit officials. Forest Service and BLM field unit officials reported a higher frequency of OHV-related social and safety impacts than did Park Service field unit officials. The most often reported of these social and safety impacts were conflicts between OHV and nonmotorized users, displacement of nonmotorized users, conflicts with private landowners, and irresponsible OHV operation. For example, Forest Service officials at the Manti-LaSal National Forest said that motorized recreationists have taken over trails managed for nonmotorized use, resulting in conflicts between motorized and nonmotorized users. Additionally, BLM officials at the Prineville District in central Oregon noted that private landowners adjacent to federal lands, frustrated with OHV users driving on their lands, have taken enforcement into their own hands by placing cables and rocks across trails to prevent unauthorized OHV use. BLM officials at the El Centro Field Office also said that many OHV-related violations are due to irresponsible behavior, such as failing to have a safety flag on an OHV or driving an OHV while under the influence of alcohol. Nearly all reported OHV-related fatalities occurred on Forest Service and BLM lands. Although a majority of field unit officials from all three agencies reported having no OHV-related fatalities from fiscal year 2004 through fiscal year 2008, some field unit officials did report fatalities—a maximum total of about 570 during that time frame at 117 field units. Specifically, Forest Service field unit officials reported about 250 fatalities at 68 field units, BLM about 320 fatalities at 45 field units, and Park Service 5 fatalities at 4 field units. While most field units that had OHV-related fatalities reported 5 or less, a few field unit officials reported between 10 and 75 fatalities. At a national level, the Forest Service's and BLM's management of OHVs is broadly guided by department-level strategic plans, as well as by morespecific agency-level plans. These plans, however, are missing some key elements of strategic planning—such as results-oriented goals, strategies to achieve the goals, time frames for implementing strategies, or performance measures to monitor incremental progress—that could improve OHV management. The Park Service has no extensive planning or guidance for managing OHV use, but this absence seems reasonable given that Park Service regulations limit OHV use to only a few units and that OHV use is not a predominant recreational activity on Park Service lands. The Department of Agriculture's strategic plan includes a goal to protect forests and grasslands. Within the context of this goal, the plan specifically mentions OHV management, identifying unmanaged motorized recreation as one of four key threats to national forests. The plan also identifies a performance measure to develop travel plans—which designate roads, trails, and areas that will be open to motorized travel—for all national forests, with a target of completing these plans by 2010. In addition to this department-level plan, the Forest Service has an agency-level strategic plan that identifies a goal of sustaining and enhancing outdoor recreation opportunities and, in particular, improving the management of OHV use. The Forest Service's strategic plan also reiterates the performance measure identified by the department-level plan—to develop travel management plans for all forests that designate OHV roads, trails, and areas. While the agency plan includes a goal—improving the management of OHV use—and one strategy to achieve the goal—designating motorized roads, trails, and areas—the plan does not identify strategies to address— or time frames to implement—other important aspects of OHV management as identified in the executive orders, such as implementing motorized-travel designations on the ground, communicating with the public, monitoring OHV trail systems, or enforcing OHV regulations. Given that the Forest Service has identified unmanaged motorized recreation as one of the top four threats to national forests, the agency's strategic plan provides insufficient direction on this management challenge. Similar to the Forest Service, BLM's management of OHV use is guided by departmental planning. The Department of the Interior's strategic plan identifies a broad goal of improving recreation opportunities for America , and BLM has two plans expanding on this goal for OHV-related activities. BLM's first plan, the “National Management Strategy for Motorized Off- Highway Vehicle Use on Public Lands,” was published in 2001 as a first step in developing a proactive approach to on-the-ground management of OHVs. The second plan, BLM's “Priorities for Recreation and Visitor Services,” was developed in 2003 and reconfirmed in 2007 as the agency's plan for recreation management, including OHV management. This recreation plan identifies numerous goals for OHV management, as well as strategies the agency can use to achieve each goal. For example, the plan identifies a goal of improving on-the-ground travel management and identifies three strategies to achieve that goal—conducting trails surveys to determine maintenance needs; implementing best management practices such as signs, maps, and the presence of agency staff in the field; and monitoring social outcomes and environmental conditions along trails. Despite identifying numerous goals and strategies to achieve the goals, BLM's recreation plan does not identify any time frames for implementing the strategies or any performance measures for monitoring incremental progress.8 For example, while the agency identifies a strategy of implementing best management practices, the agency identifies neither performance measures that could track the use of best management practices—such as the percentage of routes with signs or the number of field offices with up-to-date maps—nor time frames by which some of these best management practices should be implemented. Without performance measures and time frames, BLM cannot ensure that it is making progress on achieving its goals in a timely manner. Actions that agencies' field units reported taking to manage OHV use include supplementing federal funds with authorized outside resources (such as state grants), communicating with and educating the public, enforcing OHV regulations, and engineering and monitoring OHV trail systems. Additional efforts could improve communication with the public about OHV trails and areas and enforcement of OHV regulations. In addition, a majority of field unit officials reported that they cannot sustainably manage existing OHV areas; sustainable management would include having the necessary human and financial resources available to ensure compliance with regulations, educate users, maintain OHV use areas, and evaluate the existing OHV program. A limited number of staff for OHV management was identified as a great challenge for a majority of Forest Service field unit officials, most BLM field unit officials, and some Park Service officials. Field staff who work on OHV issues work in various capacities, such as managing volunteers, creating route systems, maintaining routes, educating users, and writing state grant applications, but most units do not have such staff. For example, at BLM's Phoenix District Office, OHV management staff maintain an ambassador program, which coordinates volunteers to educate users and promote safe, sustainable OHV use in the area. Managing this program requires one full-time manager plus 10 to 20 percent of the time of two additional staff. Officials from four field units we visited stated that although volunteers and partnerships can enhance OHV management, taking advantage of their labor requires a significant Conclusions Over the past 5 years, OHV use has increased on federal lands and has emerged as a national issue. Federal land management agencies have only recently begun to respond to this trend by revising their plans and how they manage OHV use, but they are having to do so in an environment of constrained budgetary and staff resources and other competing management priorities. Although they reported taking a variety of actions to manage OHV use in this environment, agency field unit officials reported that they cannot sustainably manage their OHV route systems. The likelihood that the Forest Service and BLM, in particular, will succeed in their efforts to enhance management of OHV use could be increased by improving the agencies' planning to include key strategic planning elements. Such enhancements could also help the agencies to more effectively address and manage some of the challenges that their field unit officials reported in managing OHV use on their lands, such as insufficient staffing levels and financial resources. In addition, developing more userfriendly maps and signs for their route systems and seeking more appropriate fines to deter violations of OHV regulations could provide all federal land users, including OHV users, a more enjoyable, quality experience while also potentially lessening environmental, social, and safety impacts resulting from OHV use. The GAO report states: In addition, a majority of officials reported they cannot sustainably manage their existing OHV use areas; sustainable management would include having the necessary human and financial resources to ensure compliance with regulations, educate users, maintain OHV use areas, and evaluate the OHV program. CRS Report for Congress July 11, 2006 Order Code RL33525gh th Recreation on Federal Lands Critics of OHVs raise environmental concerns, including the potential for damage to land and water ecosystems and wildlife habitat; noise, air, and water pollution; and a diminished experience for recreationists seeking quiet and solitude. Two executive orders define and generally guide administering OHV use on federal lands. The first (E.O. 11644, Feb. 8, 1972) defines an off-road vehicle, now commonly referred to as an off-highway vehicle, as “any motorized vehicle designed for or capable of cross country travel on or immediately over land, water, sand, snow, ice, marsh, swampland, or other natural terrain,” with exceptions for any registered motorboat or authorized or emergency vehicles. It was issued to “establish policies and provide for procedures that will ensure that the use of off-road vehicles on public lands will be controlled and directed so as to protect the resources of those lands, to promote the safety of all users of those lands, and to minimize conflicts among the various uses of those lands.” The order directed each agency to develop and issue regulations to carry out this purpose and to provide for the designation of areas and trails on which OHVs may be permitted, and areas in which such vehicles would not be permitted. Agencies were to monitor the effects of OHV use and amend or rescind area designations or other actions taken pursuant to the order as needed to further the policy of the executive order. A subsequent executive order (E.O. 11989, May 24, 1977) amended the 1972 order to exclude military, emergency, and law enforcement vehicles from the definition of off-road vehicles (to which restrictions would apply). It provided authority to immediately close areas or trails if OHVs were causing or would cause considerable damage on the soil, vegetation, wildlife, wildlife habitat, or cultural or historic resources of particular areas or trails. Areas could remain closed until the manager determined that “the adverse effects have been eliminated and that measures have been implemented to prevent future recurrence.” Also, each agency was authorized to adopt the policy that areas could be closed to OHV use except for those areas or trails that are specifically designated as open to such use. This meant that only open areas would have to be marked, a lesser burden on the agencies. BLM and FS managers formulate guidance on the nature and extent of land uses, including OHV use, through regulations, national policies, land and resource management plans, and area-specific decisions. In 2004, the NPS conducted an internal survey of current OHV use, authorized and unauthorized, and the extent of OHV damage (if any) at NPS units to respond to concerns raised by Bluewater Network.2 Currently, NPS is developing regulatory guidance and planning documents for individual park units, and considering what elements of OHV management may best fit under a national OHV management strategy. Meanwhile, on November 29, 2005, Bluewater Network and two other conservation groups sued DOI and NPS over alleged OHV damage to park resources. On October 19, 2005, the NPS also released draft Management Policies for public review through February 18, 2006,3 part of ongoing efforts to review and revise policies guiding management throughout the National Park System, including changing recreational uses and evolving technologies.4 One much discussed proposed change would require “balance” between conservation and enjoyment of park resources, whereas current policy states that “conservation is to be predominant” in conservation/enjoyment conflicts (§ 1.4.3). The extent to which this and other changes represented a shift in emphasis for management of motorized and other recreation is unclear. However, NPS subsequently made extensive changes to its draft policies based on analysis of over 45,000 comments. On June 19, 2006, NPS released a revised draft 2006 Management Policies that largely restores current policy language and its emphasis on conservation (§ 1.4.3).5 The 109th Congress is considering legislation and conducting oversight on issues pertaining to recreation on federal lands. Several major issues are covered in this report, particularly motorized recreation on BLM and FS lands; use of personal watercraft and snowmobiles in certain National Park System units; overflights of national park units; and expansion of the National Trails System. Other issues addressed cover recreation within the National Wildlife Refuge System; recreation at federal (Corps and Bureau) water sites; recreation fees; and Colorado River management within Grand Canyon National Park . While this report focuses on recreation issues on federal lands, it does not cover additional issues affecting these lands comprehensively. For background on federal land management generally, see CRS Report RL32393, Federal Land Management Agencies: Background on Land and Resources Management, coordinated by Carol Hardy Vincent. Overview information on numerous natural resource use and protection issues is provided in CRS Report RL32699, Natural Resources: Selected Issues for the 109th Congress, coordinated by Nicole Carter and Carol Hardy Vincent. For information on NPS issues, see CRS Report RL33484, National Park Management, coordinated by Carol Hardy Vincent. Information on BLM and Forest Service lands is contained in CRS Issue Brief IB10076, Bureau of Land Management (BLM) Lands and National Forests, coordinated by Ross W. Gorte and Carol Hardy Vincent. For information on appropriations for federal land management agencies, see CRS Report RL33399, Interior, Environment, and Related Agencies: FY2007 Appropriations, coordinated by Carol Hardy Vincent and Susan Boren. Current Issues Motorized Recreation on BLM Land (by Carol Hardy Vincent) Background. The growing and diverse nature of recreation on BLM lands has increased the challenge of managing recreation and other land uses, and managing different types of recreation. Access to BLM lands for a variety of recreational purposes is viewed as important for fostering public health, public support for land management, and a stable economic base for communities that depend on recreation and tourism. It also has enhanced interest in protecting the ecological integrity of federal lands from environmental harm as a result of recreational use. Motorized OHV use, including use of dirt bikes and all-terrain vehicles, is a major recreational use of BLM lands that has been controversial. While motorized user groups often have opposed restrictions on OHV use, many environmentalists have been concerned about harm to natural and cultural resources. In some areas, OHV use may conflict with other types of recreation, such as hiking, that seek quiet and solitude on agency lands. There are also differing views on how effectively OHV authorities are being enforced. While BLM employs a variety of means of enforcement, including monitoring, law enforcement, signing and mapping, and emergency closures of routes, enforcement may be impeded in some locations due to their remoteness, insufficient signs, inadequate staff and resources, and other factors. Administrative Actions. Guidance on OHV use on BLM lands is provided in law, executive orders, and agency regulations and policies. Under agency regulations (43 C.F.R. § 8340), BLM has been designating public lands as open, limited, or closed to OHV use. As of October 31, 2005, the following designations had been made: open, where OHV use is permitted anywhere, 81.1 million acres; limited, where OHV use is in some way restricted, 126.7 million acres; and closed, where OHV use is prohibited, 11.6 million acres. The remaining 42.1 million acres of BLM land (mostly in Alaska ) are not currently designated. Other regulations govern OHV use in particular areas. For instance, on August 18, 2005, BLM issued final supplementary rules for its lands in Oregon and Washington , which include guidance on OHV use. The FY2007 BLM budget justification describes BLM's “most pressing challenge” as “comprehensively managing travel, off highway vehicles (OHVs), and public access in the West” (p. III-128). In FY2007, BLM plans to develop approximately 67 travel management plans, which will identify and designate roads and trails for motorized travel, and to begin implementation when the plans are CRS-5 6 The BLM Strategy and related documents are available at [http://www.blm.gov/ohv/]. 7 Available at [http://www.blm.gov/mountain_biking/]. 8 Available at [http://www.id.blm.gov/publications/data/recvisit.pdf]. 9 Available at [http://www.id.blm.gov/publications/data/recvisit.pdf]. 10 Available at [http://resourcescommittee.house.gov/archives/109/nprpl/071305.htm]. completed. The agency requested $63.8 million for recreation management generally for FY2007, a 2% reduction from the FY2006 level of $65.1 million. In passing H.R. 5386, the House approved $67.0 million for recreation management in FY2007, a 3% increase over FY2006 and a 5% increase over the Administration's request. BLM has issued two national strategies dealing with transportation on its lands. The National Management Strategy for Motorized Off-Highway Vehicle Use on Public Lands6 has multiple purposes, including to guide land managers in resolving OHV issues; to promote consistency of OHV decision- making; to highlight needed staff and funding for OHV management; to reduce conflicts among land users; to promote responsible OHV use and reduce habitat degradation; and to lead to an update of OHV regulations (which has not occurred to date). The National Mountain Bicycling Strategic Action Plan7 addresses mountain bicycling and other musclepowered mechanical transport. Further, to guide BLM managers in taking actions affecting recreation during FY2003-FY2007, in May 2003 BLM issued The BLM's Priorities for Recreation and Visitor Services.8 BLM revised its land use planning handbook in 2005 regarding motorized and non-motorized recreation.9 The agency makes OHV designations during the planning process, on an area-by-area basis, and such designations often have been contentious and complex. Although the agency is in the midst of a multi-year effort to develop and update land use plans, many plans do not currently address OHV use and other relatively recent issues. In some cases, the BLM and FS jointly address OHV use on their lands. For instance, an interagency plan governs OHV use on lands in Montana , North Dakota , and South Dakota . Joint management approaches, where federal lands are intermingled, can promote consistency and public understanding of OHV guidance. However, BLM and FS lands are different, and they are governed by separate authorities, making complete consistency on vehicular travel management difficult to achieve. Legislative Activity. A July 13, 2005, House Resources joint subcommittee hearing examined motorized recreational use on federal lands.10 Agency representatives discussed the increased popularity of OHV use on federal lands, development and implementation of travel management plans, and challenges of managing OHVs. Other witnesses testified on availability of federal lands for OHV use, and the effects of OHV use on human health, the economy, the environment, and other forms of recreation. Some pending measures affect OHV use in particular areas. For instance, H.R. 3603 contains provisions related to OHV use in central Idaho . They include conveying BLM land to the State of Idaho to establish a motorized recreation park, CRS-6 11 Off-Highway Vehicle Recreation in the United States , Regions and States (USDA-FS Southern Research Station, June 2005). Available via the FS website at [http://www. treesearch.fs.fed.us/pubs/21307]. 12 70 Fed. Reg. 1023, Jan. 5, 2005. Also available via the FS website at [http://www.fs. fed.us/emc/nfma/includes/rule%20.pdf]. 13 Detailed information and documents concerning the 2005 final rule are available via the FS website at [http://www.fs.fed.us/emc/nfma/index2.html]. 14 70 Fed. Reg. 68264-68291, Nov. 9, 2005. establishing a special management area on certain BLM and FS lands to provide opportunities for motorized and other recreation, and authorizing up to $1.0 million for the Secretary of Agriculture to grant to the State of Idaho for the off-road motor vehicle program. Motorized Recreation in the National Forests (by Ross W. Gorte) Background. The national forests are managed by the USDA Forest Service (FS) for a variety of uses, including many types of recreation — sightseeing, OHV use, backpacking, etc. — while preserving the productivity of the lands. Recreation use continues to grow, with OHV use among the fastest growing uses.11 The various uses and values of the national forests sometimes conflict with one another. For example, timber harvesting and OHV use may affect birdwatching and sightseeing, and can degrade water quality in certain settings. Decisions about what uses are allowed, and when and where, are made in comprehensive land and resource management plans prepared for each unit of the National Forest System, and at the project level. Because of multiple efforts to modify the planning regulations, many plan revisions were delayed. New planning regulations have recently been finalized,12 and plan revisions are now expected to proceed.13 Administrative Actions. Federal guidance on OHV use in E.O. 11644 and E.O. 11989 was incorporated into FS regulations, at 36 C.F.R. Part 295. Despite this guidance, not all forest plans have identified areas as open or closed to OHVs, and local practices as to OHV use vary. In 2004, the FS Chief identified unmanaged recreation — “increasing use of the national forests for outdoor activities ... , including the use of off-highway vehicles” — as a threat to the nation's forests and grasslands. In particular, OHV use has created many unauthorized roads and trails, which can be unsafe and harmful to other resources. In response, the FS has finalized new regulations to require forest plans to identify a system of roads, trails, and areas for motorized vehicle use and prohibit the use of OHVs and other motorized vehicles outside the designated system.14 Implementing directives are expected to be published for public comment during 2006, and decisions governing motorized uses are then to be made in forest planning (with public involvement) over the next four years. Opinions are divided over the importance and impact of the regulations. Some assert that the regulations do not go far enough, preferring that all OHV uses be prohibited in the national forests, because OHVs can (and sometimes do) damage CRS-7 15 65 Fed. Reg. 15077, effective April 20, 2000. national forest lands and resources. Others counter that the regulations penalize the majority of OHV users that obey the current rules and restrict off-highway uses at a time when other landowners and other federal and state agencies are reducing recreational access to their lands. The FY2007 FS budget proposes cutting recreation funds. Recreation management would be funded at $250.9 million, a $7.9 million (3%) reduction from the FY2006 level of $258.8 million. Trails funding would be $60.3 million, a $13.9 million (19%) reduction from the FY2006 level of $74.2 million, with a greater reduction (in dollars and percentage) in trails construction than in maintenance. Legislative Activity. The House-passed FY2007 Interior appropriations bill, H.R. 5386, restored or increased FS recreation and trails funding, compared to the request. Recreation management was approved at $262.0 million, $3.2 million (1%) above FY2006 and $11.1 million (4%) above the request. Trails funding was approved at $73.4 million, $0.8 million (1%) below FY2006 (all in construction) and $13.1 million (22%) above the request (increasing both construction and maintenance). On July 13, 2005, two subcommittees of House Resources held a joint hearing to examine motorized recreation use on federal lands. (See “Legislative Activity” under BLM, above.) To date, no comprehensive legislation addressing OHV use in national forests generally has been introduced in the 109th Congress. Hazard Mitigation Assistance (HMA) The Fiscal Year 2011 (FY11) Hazard Mitigation Assistance (HMA) application period opened on June 1, 2010 and the FY11 Hazard Mitigation Assistance Unified Guidance is now available. The FY11 Hazard Mitigation Assistance Unified Guidance is available in the FEMA Library. The FY10 Hazard Mitigation Assistance Unified Guidance is still available in the FEMA Library but does not apply to the FY11 HMA application cycle.
Let [the laity] once clearly perceive that [the common law's] grand principle is to make business for itself at their expense, and surely they will cease to grumble. - Charles Dickens, 1852 A cartel is a syndicate formed to prevent competition and to maximise benefits, including profits, via a monopoly. In a sense, the legal cartel may be seen as a giant bureaucracy in which the needs of the members - power, status, money, winning - may supersede the ostensible mission of the organisation, justice. "The one great principle of the English law," Charles Dickens wrote in Bleak House , "is to make business for itself. There is no other principle distinctly, certainly, and consistently maintained through all its narrow turnings. Viewed by this light it becomes a coherent scheme, and not the monstrous maze the laity are apt to think it. Let them once clearly perceive that its grand principle is to make business for itself at their expense, and surely they will cease to grumble. " The Rules of the Game . Dr Edward de Bono* says: in Europe a certain [company] division shared a lawyer with another division. In the USA the equivalent division had 50 full-time lawyers ... if you can get more profit out of a lawsuit than out of industrial production then that is the way the rules of the game are written". [* Sources mentioned in the text are listed at the end of the book]. Judge Richard Posner has been Chief Judge of the US Court of Appeals for the Seventh Circuit (Illinois, Wisconsin, Indiana) since 1981. He is also an economist, and is thus inclined to subject the law to useful economic analysis. He says the "law" to which the title of his book, Overcoming Law , refers "is a professional totem signifying all that is pretentious, uninformed, prejudiced, and spurious in the legal tradition". Self-interest . "The history of the legal profession," Judge Posner says, "is to a great extent, and despite noisy and incessant protestation and apologetics, the history of efforts by all branches of the profession, including the professoriat and the judiciary, to secure a lustrous place in the financial and social-status sun." And: " Self-interest has played as big a role in legal thought as in medical thought ... the [legal] profession was an intricately and ingeniously reticulated though imperfect cartel" until competition began to weaken it [at least in the US] about 1960. Power . I note in chapter 41, How the Cartel Obstructs Reform, that a Sydney lawyer, Kerrie Henderson, reported the Australian High Court as stating in 1988 that "there is a paramount interest in the administration of justice which requires that cases be tried by courts on the relevant and admissible evidence". Henderson commented: "The call to 'the interests of justice' asserts the primacy of the legal system as a social institution - the High Court's 'paramount interest in the administration of justice' and in so doing also reinforces the standing of the courts and the judiciary as the organs through which that paramount interest is expressed. Such powerful tools are rarely voluntarily weakened ... " Origins of the Cartel . The legal cartel seems to have first been formed by some two dozen lawyers and judges in Westminster Hall, London, early in the 13th century. A contemporary, Judge Henry de Bracton (d. 1268), says some of the judges of this period were ignorant and corrupt. Truth . Euroscepticism, if not provincial narcissism, was a factor in the English psyche then as now. One of the cartel's first decisions was perhaps its most significant: it declined to follow European courts in their new method of making a judge responsible for finding the truth. (see chapter 2: The Unimportance of Truth.) In discounting the importance of truth, the cartel left the way open for defence lawyers to invent a series of truth-defeating devices in the 18th, 19th and 20th centuries. An Inner Cartel . What may be termed an inner cartel, equivalent to modern senior barristers and appellate judges, was formed about the middle of the 13th century. This was the lucrative order of Serjeants-at-law. Theodore Plucknett says: "The Serjeant's emoluments ... must have been enormous ... The creation of a Serjeant obliged him to provide a feast comparable to a king's coronation, to distribute liveries and gold rings in profusion, and to maintain the proceedings for seven days." The Serjeants had a monopoly of inventing the common law. In a remarkable statistic, J.H. Baker says: "[The] refinement [of the common law] as a body of rational principles in the 13th and 14th centuries was chiefly the accomplishment of the elite body of judges and advocates who belonged to the order of Serjeants-at-Law; a body which, in over six centuries of history, numbered less than 1000 members." Depending on death rates, the inner cartel may thus at times have consisted of as few as a dozen or twenty lawyers and judges. Isolation . Legal academics were not admitted to the outer cartel for five centuries. Baker says: "The strength and unity of this profession explain how the reasoning of a small group of men in Westminster Hall grew into one of the world's two greatest systems of law. For this peculiarly English professional structure was wholly independent of the university law faculties, where only Canon law and Roman Civil law were taught, and this factor as much as any other ensures the autonomous character of English law and its isolation from the influence of continental jurisprudence. " In short, the cartel protected the common law from the notion that truth is important to justice; to this day, many lawyers and judges are blissfully ignorant of continental jurisprudence. Intimacy . There is no cartel in Europe; European lawyers and judges appear to understand that lawyering is lawyering and judging is judging, but common law legal academics don't seem to be troubled by the "intimate" relationship between common lawyers and judges. Theodore Plucknett says the 13th century "saw the rise of a group of practitioners before the King's courts ... In such a state of affairs there must arise the question of the relations between bench and bar. Not only is there the purely formal relationship to be settled, but there is the even more fundamental psychological attitude of bench and bar to be considered. When the same half-dozen judges are constantly being addressed by the same score or so of practitioners, these two small groups cannot help influencing each other ... In the middle ages ... the Serjeants during term time lived together in their inns and discussed their cases informally together simply as Serjeants, without distinction between those on the bench and those at the bar ... In the course of the 14th century the Serjeants [became] a close guild in complete control of the legal profession ... By the close of the 14th century the judges are all members of the order of Serjeants, and Serjeants alone can be heard in the principal court, that of Common Pleas" (civil cases). They kept that monopoly until 1846. Complexity . Plucknett says common lawyers were the "dominant interest" in Parliament by the 14th century. He says: "Bench, bar and Parliament, therefore, were alike under the influence of the conservative, professionalised lawyer to whom the complexities and technicalities of the law were a peculiar and valuable learning." Indeed it was. In ambiguity lies power. And money. The more complex and technical the law could be made, the greater the fee the lawyer-priest could charge to interpret it. The roots of modern lawyers' fees and the high cost of law go deep, back to the self-interested cartel in the 13th century. Opposition to Reform . Plucknett continues: "What is more, these very men also acquired control of legal education as well. The inevitable result was the disappearance of a liberal outlook upon law, and the loss of contact with other systems ... instead of this broad learning they turned to the narrow and tangled studies of procedure and pleading. "It was the common lawyers who were mainly instrumental in making parliamentary supremacy a fact, but, as Maitland has said, 'the supremacy of Parliament may have been worth the price paid for it; nonetheless, the price was high'. The price consisted in the extreme centralisation of justice, the decline of old local institutions, the subjection of custom to the common law, the growth of immense quantities of technicality, opposition to reform, and the rejection of the broader and more liberal attitude towards law that showed so clearly in Bracton." Elements of the cartel thus controlled the law and Parliament. They achieved another quantum leap in technicality in the 18th century, when defence lawyers invented the extreme adversary system and five rules for concealing evidence. How the cartel continues to obstruct reform is examined in the final chapter. Tyler and Cade . Lawyers' technicalities and perhaps the activities of a few psychopaths may partly explain why, historically, lawyers have never enjoyed great public acclaim. Resentment against lawyers is said to have been a cause of Wat Tyler's revolt of the peasants in 1381, and a breakdown in the administration of justice was a cause of Jack Cade's rebellion in 1450. Shakespeare (c. 1592) has Cade saying he had once signed a document and "was never mine own man since", and agreeing that the first thing to do is "kill all the lawyers ". Royal Courts . The royal courts, which operated from the late 15th century, used the European inquisitorial method rather than the English accusatorial method. They thus represented a threat to the common law courts in power and method and also in money: the common law judges got a share of the fines they levied. The cartel thus sought supremacy over the royal courts as well as over the monarch. It won the battle in the 17th century; Parliament arranged to axe the royal courts in 1641 and the king himself in 1649. Exporting the Law . Except for accidents of geography and history, the oddities of the common law would be no more than mildly quaint tourist attractions in a small island off the coast of Europe. England's isolation, instrumental in the stand against truth in the 13th century, enabled it to look beyond Europe in the 17th; 1607 saw the start of a maritime empire; the common law was exported to its colonies. Godbolt and the Witchfinder-General . The quality of legal thinking in the 17th century may perhaps be gauged by a resumption of trial by ordeal in the period between the cartel's triumph over the royal courts and the killing of the king. In 1645-6 a judicial commission under a lawyer-MP, John Godbolt, "swam" and hanged scores of alleged witches. Godbolt's Witchfinder-General, Matthew Hopkins, had such a nose for witches that he was suspected of being one himself. He was tried by cold water in 1647, floated, and was hanged, but the cartel looked after Godbolt: Parliament appointed him judge of common pleas in 1647. Hale . Sir Matthew Hale (1609-76) was a flexible type of lawyer. He had no difficulty in accommodating himself to the republic when Charles I was executed, nor to the monarchy on its restoration. He contrived to be an MP, Serjeant-at-law, and a Justice of the Common Pleas in the one year, 1654. Magnus Magnusson says he was "a believer in witchcraft", and the Concise Dictionary of National Biography (CDNB) notes that he presided at the conviction of two witches in 1662. He became Chief Justice of the King's Bench in 1671. Highway Thieves in the Inner Cartel . The diarist, Sir John Evelyn (1620-1706), was a Serjeant and, from 1685 to 1687, a commissioner of the Privy Seal. In a speech on legal ethics in August 1997, Nicholas Cowdery QC, Director of Public Prosecutions in NSW, (pop. March 1997 6,260,900), from 1994, quoted Evelyn's entry for 26 November 1686. It apparently concerns civil rather than criminal matters. Thus: "I din'ed at my L.Chancelors , where being 3 other Serjants at Law, after dinner being cherefull and free, they told their severall stories, how long they had detained their clients in tedious processes, by their tricks, as if so many highway thieves should have met and discovered the severall purses they had taken: This they made but a jeast of: but God is not mocked:" Cowdery commented drily: "It would seem, however, that God has been a little slow to address the problem and the community has run ahead of him or her." But Evelyn's sinister document goes rather further than mockery, or lack of it, of an inscrutable deity. The Lord Chancellor was (and is) the highest judicial functionary in England; his apparent acceptance of theft from clients by members of the inner cartel suggests that their criminal behaviour was known and condoned at the highest level of the cartel late in the 17th century. Within a century, judges had allowed these "highway thieves" to take over control of criminal and civil trials. More Tricks . Six years later, in 1692, Parliament legislated to curtail the activities of actual highway thieves. This had extraordinary consequences; it enabled defence lawyers to invent a grossly excessive version of the adversary system and to invent magic tricks 3, 4, 5, 6, 7, 8, and 9. The Legislature . The cartel retained its power in legislatures. In the US being a lawyer is almost a condition of entry into politics. In England, the Lord Chief Justice was a politician for several centuries. The last, and typical of the genre, was Tom Inskip, Viscount Caldecote (1876-1947). He was a Conservative MP 1919, Solicitor-General 1922-28 and 1931-32, Attorney-General 1928-29 and 1932-36, Minister for Defence Co-ordination 1936-39, Secretary of State for Dominions 1939-40, Lord Chancellor 1939-40, and Lord Chief Justice 1940-46. The CDNB notes that when [the sexually depraved] Lord Goddard succeeded him as Lord Chief Justice in 1946, he was the "first non-political holder of the office". David Rose noted in 1996 that "there are more than a hundred barrister MPs" among some 600 members of the House of Commons. He said "the influential Tory Chairman of the Commons Select Committee on Home Affairs, Ivan Lawrence QC MP ... believes English criminal justice is 'democracy at work', and thus 'streets ahead of any other system'." The Inner Cartel . The inner cartel today approximates to appellate judges and senior lawyers, e.g. constitutional lawyers and Queen's Counsel in former English colonies. I of course write as an honorary member of the inner cartel, appointed thereto as "Whitton QC' in 1983 by the then Premier of NSW, the Hon Neville Kenneth Wran QC, for sterling work in reporting every trivial, irrelevant and footling detail of a Royal Commission in which he was embarrassingly accused, falsely as it happily turned out, of colluding with a corrupt magistrate to fix a case for a sporting identity. Advocates and Judges . Plucknett says the system of choosing judges "from among the Serjeants" has persisted with little modification in common law countries, and that "its great characteristic is the intimate connection between bench and bar ... This co-operation ... is of the utmost importance for the working of the common law system". Not to mention the cartel. (Emphasis added.) As noted, the trouble is that lawyering and judging are fundamentally different. Advocates are partisan; judges are supposed to be detached, disinterested, impartial. The advocate seeks to win. Socrates (469-399 BC) said casuistry (intellectual dishonesty) is a knack; Judge Posner says bright law students pick it up very quickly. In civil law countries, aspiring professional judges are trained from the beginning in the judicial function, separately from lawyers. Common law judges are amateurs; as advocates elevated, they have no training to speak of. Sir Garfield Barwick (1903-97, Chief Justice of the High Court of Australia 1964-81), was the quintessential advocate. After his death, Clyde Cameron, who became Barwick's friend after he left the court, said: "I'd never known anyone who is able to so easily explain in a way that is so uncontroversial that a piece of white paper is jet black and a piece of black paper is snow white." Barwick appeared to continue his advocacy of tax avoidance when he became Chief Justice; his decisions cost the revenue and people not in a position to avoid tax hundreds of millions. Dismantling the Cartel . Michael Mansfield QC, who represented five of the Birmingham Six at their successful appeal, apparently believes the inner cartel should be dismantled. He said in 1993: "I would like to see a system in which judges are not culled almost exclusively from the ranks of the Bar but come from all walks of life. Being a judge should be a normal career structure like any other which you decide on when you leave school. It should be no different to deciding to become an engineer, a doctor or a social worker and judges should be open to public scrutiny and accountable, subjected to the control of a Ministry of Justice. Of course, that is precisely what many of the Law Lords want to avoid because there will be no guarantee that they are the ones who finish up with the power and the jobs. However, we shouldn't have to wait for even more miscarriages before these people begin to feel the wind of change on the back of their necks ... Such a proposition as mine is neither outrageous nor unique. In France a similar system already operates and it operates well." Mansfield noted that French advertising hoardings carry an invitation: "WHY NOT BE A JUDGE?" The Australian Law Reform Commission effectively recommended in July 1997 that, after eight centuries, the cartel be dismantled, i.e. law students planning careers as judges should be trained separately from advocates. However, Justice Murray Gleeson, Chief Justice of NSW, appears to believe that judges should continue to be appointed from the Bar and that senior judges should control whatever training they may then get. Speaking of judicial education in October 1997, he said: " ... this is a relatively new area of activity for judges and administrators and its implications are still being worked out. In England, where there is a Judicial Studies Board, there has been debate about the possibility of both formal training and performance review, and the implications that may have for judicial independence which entails, amongst other things, the independence of judges from one another. Both in England and in New South Wales the issue of independence has been handled by an insistence that the senior judiciary should control judicial training and education ... The judiciary should insist upon maintaining control of judicial training, but it should be prepared to state its case, publicly, for financial support [from the executive government]." There are a number of problems with Justice Gleeson's view that senior judges should have a monopoly of training judges. Senior judges are themselves untrained in judging and are probably largely ignorant of the origins of the common law. And what would they teach? That the common law is the best system? As noted in chapter 4, Justice Gleeson's colleague on the NSW Court of Appeal, Justice Michael Kirby, said in April 1994: "People tend to forget that criminal trials do not involve a search for the truth." But a month later, as noted in chapter 5, Justice Gleeson said the administration of justice does involve a "search for the truth". Justice Kirby was right, but Justice Gleeson was the senior judge. The argument from independence also appears to have no legs: as members of the inner cartel, judges have never been independent of lawyers. Training them in judicial training schools separately from lawyers would give them that independence.
California's Revised Energy Planning Guide for Local Governments
What is it?
The California Energy Commission has recently released the 2011 Energy Aware Planning Guide , an update to a 1993 version . The guide is geared towards local governments and planning organizations including cities, counties, and regional transportation districts or any other local entity that influences energy usage in buildings, land use, transportation, water delivery and waste processing. The guide's goal is to provide technical information to local governments seeking to improve energy efficiency, reduce energy use and greenhouse gas emissions, and enhance renewable sources of energy.
Why is it Important?
Recent California legislation – the Global Warming Solutions Act and the Sustainable Communities and Climate Protection Act 375 – are starting to impact energy usage in California and local governments play a big role in influencing energy demand. Examples include local government's influence on building code enforcement, land use planning, public transit and sometimes local governments run an electric and/or gas utility. This is in addition to the local governments own energy usage. The Guide provides processes, tools and templates to help local government's make strategic energy plans and implement them.
How is it Helpful?
The Guide starts with a systematic process for creating an Energy Action Plan to inventory sources and uses of energy and identify opportunities for improvement. The Guide then presents many strategies to reduce energy use. Ideas include parking supply management, ridesharing, planting shade trees, implementing solar energy and water reuse and recycling. The Guide then ends with metrics and guidelines for quantifying the impact of the recommended strategies. All of these ideas and examples can save a local government time and effort – generally in short supply during this era of budget deficits - in reducing energy usage for its own operations and its residents and businesses.
New Federal Agreement to Support Water Resources Management To address the nation's growing water challenges and guide critical water management decisions, NOAA, the U.S. Army Corps of Engineers, and U.S. Geological Survey are forming a federal partnership to unify and leverage each agency's resources including science, information, programs and capabilities. Following brief remarks, speakers will address questions.
What:
Signing ceremony for interagency Memorandum of Understanding enhancing water management information and flood forecasting
When:
Wednesday, May 11; 2:00 p.m. ET
Where:
Georgetown Waterfront Park, Washington, D.C. (northwest corner of the park, along Water St. and northwest of 33rd St.; metered parking is an option along Water St.)
Who:
Jane Lubchenco, Ph.D.,under secretary of commerce for oceans and atmosphere and NOAA administrator
Marcia McNutt, Ph.D., director, U.S. Geological Survey
The Honorable Jo-Ellen Darcy, assistant secretary of the Army for Civil Works
FEMA Dam Safety Publications FEMA P-679DVD and FEMA P-730CD New Releases! The Department of Homeland Security's Federal Emergency Management Agency (FEMA) is pleased to announce that the following FEMA National Dam Safety Program (NDSP) publications are now available, at no cost, from the Publications Warehouse.
Technical Manual: Outlet Works Energy Dissipaters, Best Practices for Design, Construction, Problem Identification and Evaluation, Inspection, Maintenance, Renovation, and Repair, FEMA P-679DVD
Geotextiles in Embankment Dams, FEMA P-730CD
One of the goals of the NDSP is to encourage design and construction practices that reduce the risks to life and property from dam failure in the United States. FEMA's publication of these two important technical documents for dam design and construction professionals, inspectors, and operation and maintenance personnel is a major ongoing commitment to achieving this goal. To order your copy of FEMA P-679DVD or FEMA P-730CD from the Publications Warehouse, call 1 (800) 480-2520 or fax your request to (240) 699-0525. Both FEMA P-679 and FEMA P-730 will be available online by the fall 2011. To view or download other FEMA publications, please visit the FEMA Library, http://www.fema.gov/library/ . To view or download other NDSP publications and products or to sign up for updates on dam safety publications, news, and events, visit Dam Safety Publications and Resources, http://www.fema.gov/plan/prevent/damfailure/publications.shtm
May 17, 2011
A new collaboration between environmental experts and industry is showing Tucson businesses that going green doesn't mean going broke.
In the 34 years since the mechanism for states to assume the so-called “404 program” of federal wetlands permitting was created in 1977, many other states have considered it, but only two, Michigan and New Jersey, have completed the process.
State assumption allows a state to regulate wetlands and waterbodies and to issue, condition or deny permits for work in those natural resources. At first blush, state takeover would seem like low-hanging fruit in states' efforts to eliminate multiple regulatory review layers. However, a 2008 EPA study found that although numerous states have evaluated assumption -- and several have moved significantly down the path -- most abandoned the effort for a number of reasons:
Resources: Lack of state funding to implement the program and unavailability of Federal implementation grants (unlike the 402 program);
Statutory Changes : State laws had to be enacted or amended, and the political will necessary to make such changes often fades in light of environmental NGO opposition;
Corps Involvement: Rivers & Harbors Act §10 permitting authority remains with the Corps, thus not eliminating redundancy in ecosystems involving both wetlands and navigable/tidal waterways;
EPA Involvement: EPA regulations still require EPA review of permits issued by a state even under an assumed program when those permits involve, among other things, potential impacts to ESA threatened or endangered species, NHPA protected properties, waters of another state, and discharges to “critical areas” (e.g., state/federal parks, wilderness areas, refuges, etc.).
Federal Agency Authorization Disputes : At least until recently, there was uncertainty as to whether an ESA §7 consultation requirement (with USFWS and NMFS) had to be met before EPA could grant approval of a state's application to assume the 404 program. A December 27, 2010 letter from EPA's Assistant Administrator for Water indicates that EPA has won that tug of war -- no ESA §7 consultation is required.
Also impacting states' decisions regarding assumption of the 404 program is the continuing uncertainty surrounding the scope of the Corps' jurisdiction following the Supreme Court's decisions in SWANCC and Rapanos . EPA and the Corps have attempted to address this issue in various guidance documents. See e.g., “Joint Memorandum” (January 15, 2003)(68 Fed. Reg. 1991) and “Clean Water Act Jurisdiction Following the U.S. Supreme Court's Decision in Rapanos v. United States & Carabell v. United States ” (12/2/08).
An April 2011 joint Corps/EPA proposed superseding guidance , notes that “Corps Districts will utilize this guidance to implement Clean Water Act section 404, 33 U.S.C. 1344.” While there is no mention in the guidance of its applicability to state-assumed programs, it is likely that EPA (and the Corps) will require that such guidance, once finalized, be adhered to in any EPA-approved state assumption of the CWA 404 program. Given recent reports that the April 2011 proposed guidance will dramatically expand the scope of federal jurisdiction over wetlands and waterbodies, states will undoubtedly continue to struggle to identify the benefits in assuming the CWA 404 program.
As part of newly-elected Republican Governor Paul Page's overall regulatory reform initiative, the Maine Department of Environmental Protection is planning to seek authority (pursuant to 33 U.S.C. §§ 1344(g) and (h)) to implement the dredge and fill program in lieu of the Army Corps. In the 34 years since the mechanism for states to assume the so-called “404 program” of federal wetlands permitting was created in 1977, many other states have considered it, but only two, Michigan and New Jersey, have completed the process.
22. [PDF] Career Technical Education Standards - Standards and Framework G8.3 Understand the definition of a watershed and how it is used to measure water quality. G8.4 Understand effective water management and conservation ... http://www.cde.ca.gov/re/pn/fd/documents/careertechstnd.pdf#search=watershed&view=FitH&pagemode=none 23. [MS Word] History-Social Science Framework Draft Chapter 4 - Curriculum ... The Civil War should be treated as a watershed event in American history. It resolved a challenge to the very existence of the nation, demolished the ... http://www.cde.ca.gov/ci/hs/cf/documents/chapter4.doc 24. [PDF] Roundtable Report - Facilities Another watershed moment,. Other/Multiple: Proposition 13 in 1978, further increased the state's fiscal role, and thus, its influence on design. ... http://www.cde.ca.gov/ls/fa/sf/documents/roundtablereport.pdf#search=watershed&view=FitH&pagemode=none 25. [PDF] History-Social Science Framework - Curriculum Frameworks and ... California's wild rivers and watersheds and the long-term consequences of ...... The Civil War should be treated as a watershed in American history. It ... http://www.cde.ca.gov/re/pn/fd/documents/hist-social-sci-frame.pdf#search=watershed&view=FitH&pagemode=none 26. [PDF] Science Framework for California Public Schools - Curriculum ... lected in watershed districts, pumping of groundwater, import of water ... the disturbance or development of land in a watershed area, runoff of water from ... http://www.cde.ca.gov/ci/cr/cf/documents/scienceframework.pdf#search=watershed&view=FitH&pagemode=none 27. [MS Word] California Career Technical Standards - Curriculum Frameworks G8.3 Understand the definition of a watershed and how it is used to measure water quality. G8.4 Understand effective water management and conservation ... http://www.cde.ca.gov/be/st/ss/documents/ctestandards.doc
Current Update on EEI
Education & the Environment Initiative (EEI) Units Approved!
The California State Board of Education unanimously approved the adoption of the Education and the Environment Initiative Curriculum on Wednesday, January 6, 2010. The goal of EEI is to increase environmental literacy for California K-12 students by teaching Science and History-Social Science academic content standards to mastery within an environmental context. EEI is a unique opportunity to formally include environment-based education into California's classrooms. PDF versions of all 85 units are available to download at: http://www.calepa.ca.gov/education/eei/curriculum/
Division of Molecular and Cellular Biosciences: Investigator-initiated research projects (MCB)
Directorate for Biological Sciences
Division of Molecular and Cellular Biosciences
Full Proposal Deadline(s) (due by 5 p.m. proposer's local time):
September 06, 2011
May 21, 2012
January 28, 2013
Delays on additions to Forest Service's firefighting fleet unacceptable, Sen. Dianne Feinstein says
In a bluntly worded letter, Sen. Dianne Feinstein (D-Calif.) criticizes delays in adding night-flying aircraft. Using helicopters after nightfall might have stopped the spread of 2009's Station fire during its first day.
Clean Water Act Jurisdiction
Twice in the last ten years, the U.S. Supreme Court has issued rulings resulting in confusion over the scope of the federal Clean Water Act. In the wake of SWANCC v. U.S. Army Corps of Engineers (2001) and Rapanos v. United States (2006), landowners, environmental advocates, and regulators have faced uncertainty about whether many types of wetlands, small and intermittent streams, and other waters are subject to federal jurisdiction. This has resulted in an increase in regulatory delay and expense and undercut federal enforcement. Members of Congress have introduced new legislation to restore jurisdiction over many of the waters whose protection was eliminated or cast into doubt by these rulings; and the Environmental Protection Agency and U.S. Army Corps of Engineers (the federal regulatory agencies) have issued multiple joint guidance documents to assist their respective staffs. Today, the lower federal courts continue to grapple with how to interpret and apply the Rapanos ruling.
Priority Areas of Expertise and Resources:
In 2006, ELI filed a "friend of the court" brief with the U.S. Supreme Court in Rapanos v. United States. ELI's amicus curiae brief in the critical Rapanos case represented ELI's first (and, to date, only) participation in litigation. Justice Kennedy cited ELI’s brief favorably in his Rapanos concurrence, the opinion from the ruling that most legal observers agree articulates the principal test for Clean Water Act jurisdiction.
In 2007, ELI released the Clean Water Act Jurisdictional Handbook , an accessible resource that explains the law, compiles the relevant scientific studies, and provides a set of jurisdictional checklists. The Handbook will assist anyone faced with a jurisdictional question involving a wetland or stream to understand which legal and scientific factors can support a finding of Clean Water Act jurisdiction.
In 2011, ELI plans to issue the second edition of the Clean Water Act Jurisdictional Handbook. ELI also intends to release a new study of limitations on states' authority to protect wetlands and other waters that are potentially no longer subject to federal Clean Water Act jurisdiction, as well as a new assessment of vulnerable wetlands types in those states.
The National Wetlands Newsletter , a publication of ELI, has provided extensive coverage of the Rapanos decision and its effects. For example:
States: Searching for a Significant Nexus Using Proximate Causation and Foreseeability Principles (Excerpt Part I) (2011). Lawrence R. Liebesman, Rafe Petersen, and Michael Galano look at applying the principles of proximate causation and foresseability to Justice Anthony M. Kennedy's significant nexus test to help clarify jurisdictional waters under the 2006 Rapanos decision. (33, 1:10).
Rapanos v. United States: Searching for a Significant Nexus Using Proximate Causation and Foreseeability Principles (Excerpt: Part II) (2011).
Lawrence R. Liebesman, Rafe Petersen, and Michael Galano continue their article and focus on proximate causation and the Rapanos guidance issued by the U.S. Environmental Protection Agency and U.S. Army Corps of Engineers in 2007. (33(20): 14).
Happy Anniversary, Rapanos...Now What? (2007). Bruce Myers and Roxanne Thomas survey the legal tests used in determining jurisdiction in a post- Rapanos setting. (29(4): 14).
The Environmental Law Institute (ELI) makes law work for people, places, and the planet.
Vision Statement
ELI's Vision calls for “a healthy environment, prosperous economies, and vibrant communities founded on the rule of law.” What ELI does to help guide society toward that vision is described in its mission statement:
Mission Statement
ELI fosters innovative, just, and practical law and policy solutions to enable leaders across borders and sectors to make environmental, economic, and social progress. ELI:
Builds the skills and capacity of tomorrow's leaders and institutions
Researches and analyzes complex and pressing environmental challenges
Promotes and disseminates the best thinking through print and electronic media
Convenes people with diverse perspectives to build understanding through robust debate
More About Us
Since 1969, ELI has played a pivotal role in shaping the fields of environmental law, policy, and management, domestically and abroad. Today, we enter our fifth decade as an internationally recognized, non-partisan research and education center working to strengthen environmental protection by improving law and governance worldwide.
We deliver insightful and impartial analysis to opinion makers, including government officials, environmental and business leaders, academics, members of the environmental bar, and journalists. ELI is a clearinghouse and a town hall, providing common ground for debate on important environmental issues.
The Institute advances innovative and practical solutions to environmental challenges through its Publications and Associates group. We publish the Environmental Law Reporter ®, The Environmental Forum® , the National Wetlands Newsletter , and books on environmental law and policy. We educate and build bridges among the various environmental stakeholders through ELI's membership program, which convenes environmental professionals from all sectors and offers seminars on timely topics presented by leading experts and practitioners.
The Institute's Research and Policy group produces research reports and policy recommendations on critical areas of environmental governance. Our work is primarily focused on protecting water resources, land, and biodiversity; safeguarding the global commons (earth's climate and oceans); and improving environmental law and its implementation in the U.S. and internationally. Education and training programs for public officials, judges, citizens, and factory managers are a large part of ELI's agenda.
The Institute is governed by a board of directors who present a diverse mix of leaders within the environmental profession and others who support strengthening environmental law and policy. Support for the Institute comes from individuals, foundations, government, corporations, law firms, and other sources.
The Environmental Law Institute (ELI) makes law work for people, places, and the planet.
Vision Statement
ELI's Vision calls for “a healthy environment, prosperous economies, and vibrant communities founded on the rule of law.” What ELI does to help guide society toward that vision is described in its mission statement:
Mission Statement
ELI fosters innovative, just, and practical law and policy solutions to enable leaders across borders and sectors to make environmental, economic, and social progress. ELI:
Builds the skills and capacity of tomorrow's leaders and institutions
Researches and analyzes complex and pressing environmental challenges
Promotes and disseminates the best thinking through print and electronic media
Convenes people with diverse perspectives to build understanding through robust debate
More About Us
Since 1969, ELI has played a pivotal role in shaping the fields of environmental law, policy, and management, domestically and abroad. Today, we enter our fifth decade as an internationally recognized, non-partisan research and education center working to strengthen environmental protection by improving law and governance worldwide.
We deliver insightful and impartial analysis to opinion makers, including government officials, environmental and business leaders, academics, members of the environmental bar, and journalists. ELI is a clearinghouse and a town hall, providing common ground for debate on important environmental issues.
The Institute advances innovative and practical solutions to environmental challenges through its Publications and Associates group. We publish the Environmental Law Reporter ®, The Environmental Forum® , the National Wetlands Newsletter , and books on environmental law and policy. We educate and build bridges among the various environmental stakeholders through ELI's membership program, which convenes environmental professionals from all sectors and offers seminars on timely topics presented by leading experts and practitioners.
The Institute's Research and Policy group produces research reports and policy recommendations on critical areas of environmental governance. Our work is primarily focused on protecting water resources, land, and biodiversity; safeguarding the global commons (earth's climate and oceans); and improving environmental law and its implementation in the U.S. and internationally. Education and training programs for public officials, judges, citizens, and factory managers are a large part of ELI's agenda.
The Institute is governed by a board of directors who present a diverse mix of leaders within the environmental profession and others who support strengthening environmental law and policy. Support for the Institute comes from individuals, foundations, government, corporations, law firms, and other sources.
It is absurd to suppose that in 1970, years before the advent of the global warming scare, Congress, when it enacted Clean Air Act, also authorized EPA to regulate greenhouse gases. Determining climate policy is not EPA's job. Deciding when and how greenhouse gases should be regulated is above EPA's pay grade.
Why should I consider becoming a Minnesota Master Naturalist Instructor?
There is no cost to becoming a Minnesota Master Naturalist Instructor. Minnesota Master Naturalist Instructors will generate programmatic funds for their sponsoring organization by receiving a portion of participant tuition ($50 per participant is provided to the instructors' employer).
Minnesota Master Naturalist Instructors can train current volunteers, attract new volunteers, and strengthen community environmental education programs. They will be able to meet and work with other instructors across the state and become part of a statewide effort to increase natural resource volunteering in citizen science, interpretation, program support, and stewardship throughout Minnesota.
Minnesota Master Naturalist capstone projects will benefit your organization by providing creative ideas and improved environmental education programming.
Up until 2008 we knew of a few Master Naturalist or Master Watershed Steward Programs that were connected both with volunteer monitoring and with Extension. Those were listed along with other volunteer monitoring programs on our website . Then in 2008, we learned of many more Master Naturalist programs across the United States - many with Extension and volunteer monitoring connections. So, we developed a listing of these programs to provide easy access to them and link them with the Extension Volunteer Monitoring Network. Please let us know if you know of a program not listed here. Also visit the Alliance of Natural Resource Outreach and Service Programs (ANROSP) website to learn more about these programs.
Great Delta Toilet Bowl
Each day up to one billion gallons of partially treated sewage is flushed into the Delta. MORE
Sac Regional Wastewater Treatment Plant
The Central Valley Regional Water Quality Control Board voted unanimously to require Sacramento to upgrade its wastewater treatment facility to reduce harmful discharges. MORE
A federal court approved the settlement between the Coalition and the Department of Fish and Game related to the management of striped bass in the Delta. MORE
Science Watch
While hundreds of millions of dollars have been spent on Delta research, the science underlying key water policy and management decisions in the estuary are fraught with uncertainty and lack a solid foundation in peer-reviewed science. MORE
California salmon season to be fully restored for 2011
Reports throughout the state have shown a resurgence for 2011 salmon runs. MORE
Major Policy Reports
Major Delta policy reports continue to point to a number of factors which must be addressed if the health of the estuary is to be restored. MORE
Green infrastructure is an approach to wet weather management that is cost-effective, sustainable, and environmentally friendly. Green Infrastructure management approaches and technologies infiltrate, evapotranspire, capture and reuse stormwater to maintain or restore natural hydrologies. See examples of green infrastructure and design approaches .
At the largest scale, the preservation and restoration of natural landscape features (such as forests, floodplains and wetlands) are critical components of green stormwater infrastructure. By protecting these ecologically sensitive areas, communities can improve water quality while providing wildlife habitat and opportunities for outdoor recreation.
On a smaller scale, green infrastructure practices include rain gardens, porous pavements, green roofs, infiltration planters, trees and tree boxes, and rainwater harvesting for non-potable uses such as toilet flushing and landscape irrigation.
Strategic Agenda To Protect Waters and Build More Livable Communities Through Green Infrastructure
On April 29, 2011 Deputy Administrator Perciasepe announced the release of EPA's new Strategic Agenda to Protect Waters and Build More Livable Communities through Green Infrastructure (PDF) (5 pp, 349K) , which outlines the activities that the Agency will undertake to help communities implement green infrastructure approaches. EPA's strategy focuses on clarifying how green infrastructure can and should be used within the regulatory and enforcement contexts, outreach and information exchange, financing, and tool development and capacity building. Deputy Administrator Perciasepe also announced EPA's green infrastructure community partnership effort by introducing the first 10 communities (PDF) (1 pp, 131K) that will work with the Agency on green infrastructure implementation issues. Concurrent with the release of the Strategic Agenda, EPA's Office of Water and Office of Enforcement and Compliance Assurance issued a joint memorandum (PDF) (5 pp, 343K) encouraging communities to use green infrastructure to manage wet weather and meet Clean Water Act Requirements.
Coming Together for Clean Water - Read about and participate in the discussion on EPA's planning process for our clean water programs
Watershed U.
Watershed U. - A Watershed-Specific Training Program for Better Watershed Management
Unlike these other watershed training programs, Watershed U. focuses on specific, local watersheds. Our programs cover the basics of hydrology and ecology, water supply and flood management, water quality protection, and stakeholder processes. We develop the course with input from local stakeholders, to make sure it fits your needs. We generate understanding of how these elements work in the specific watershed.
In conducting watershed management, organizations must cross boundaries. They may have competing interests, little knowledge of each other's concerns, and limited communication skills. They often lack a common language. Watershed U. helps stakeholders create that language.
What can Watershed U. do for you?
Deliver a training program tailored for your watershed
Focus on the most important issues in your watershed
Increase understanding : previous Watershed U.'s showed a 100% increase in understanding of watershed issues
Improve communication among stakeholders
Act as a springboard for stakeholder driven management
If you are interested in bringing Watershed U. to your southern California community, contact Sabrina Drill, Natural Resources Advisor, at sldrill@ucdavis.edu , 323-260-3404.
Watershed Stewards Academy
The Watershed Stewards Academy is an initiative of the San Joaquin River Stewardship Program to train community leaders called Master Watershed Stewards. The role of the Master Watershed Stewards is to engage and educate citizens, schools, businesses, farmers and organizations about the San Joaquin River and California Water Resources. They will plan and implement a wide variety of projects including education and outreach programs, natural resource restoration, river clean up, Clean Water Team activities, invasive plant removal, NatureMapping and clean storm water programs. The goal is to increase awareness of the many beneficial effects of the restoration of the San Joaquin River and the importance of water resources for the the future of the Central Valley, promote dialogue among community members and encourage informed involvement and responsible stewardship.
Master Watershed Stewards will participate in an intensive training program. 6 courses and the completion of a successful action project will be required for certification.
Classes include:
California Water Resources
Urban and Agricultural Water Resources
San Joaquin River Restoration
Natural Resource Guidelines for Citizen Monitors
Community Outreach and Empowerment
Planning Natural Resource Projects and Activities
Actions projects may include:
Clean Storm Water
Natural Resource Restoration
Community Outreach
School Outreach
Clean Water Team
Invasive Species Removal
NatureMapping
River Cleanup
Salmonids in the Classroom
2011 Dates:
September
13, 15, 20, 22, 27, 29
Location:
Center for Advanced Research & Technology (CART)
2555 Clovis Ave.
Clovis, CA 93612
Master Watershed Stewards will be supported by:
Natural Resource and California Water Resource Professionals: Providing instruction and technical expertise in natural resource management and water resource management
Agricultural Community Leaders: Providing instruction and technical expertise in the beneficial use of California Water Resources and California Agriculture Best Management Practices
Tool Box for Sustaining Action: How-to-Guides, Resources Library, Tools & Equipment, Inventory of Contacts for Technical Assistance, Web Page
Academy Leadership Team : Composed of Stewardship Program staff and Agriculture and Natural Resource professionals to provide guidance and connect Master Watershed Stewards with the San Joaquin River Restoration Program
If you want to assume an active role in the restoration of the San Joaquin River and are willing to make a commitment to become a Master Watershed Steward contact the San Joaquin River Stewardship Program: (559) 289-8874, sastarcher@gmail.com.
Legal
FEMA National flood insurance Program
The Coalition for a Sustainable Delta has filed a lawsuit in federal district court against the Federal Emergency Management Agency (FEMA) for violating the federal Endangered Species Act (ESA) through its National Flood Insurance Program (NFIP), which encourages development of flood plain habitats that may affect listed species without consulting with federal wildlife agencies.
The Coalition for a Sustainable Delta has settled a lawsuit in federal district court against the California Department of Fish and Game (CDFG) for violating the federal Endangered Species Act (ESA) through its enforcement of State sport fishing regulations that protect the non-native striped bass at the expense of several native endangered and threatened species, including the delta smelt.
The Coalition has joined other water users in filing lawsuits against federal agencies challenging regulatory restrictions placed on the water pumping operations of the State Water Project and Central Valley Project. The severe water supply restrictions imposed under Biological Opinions issued under the Endangered Species Act are designed to protect the delta smelt and various species of salmon, which are federally protected species that reside in the Sacramento-San Joaquin Delta. The restrictions, which fail to comply with the requirements of the National Environmental Policy Act and the Endangered Species Act and are not based on the best available science, have greatly reduced water supplies for 25 million Californians and millions of acres of productive San Joaquin Valley farmland.
Wanger decision results in increased pumping through June
On May 25, 2010, Judge Wanger issued an order barring the National Marine Fisheries Service from implementing two actions that restrict water exports from the Central Valley Project and State Water Project pumping plants in the south Delta. The Court repeatedly criticized the federal government?s biological opinion and actions included in the reasonable and prudent alternative, characterizing portions of those documents as "unsupported by reasonable explanation," "simply indefensible," "inexplicable," and "not rational nor scientifically justified." It is estimated that the order will result in the delivery or an additional 50,000 acre-feet of water in the next three weeks.
In another victory for water users, on May 27, 2010, Judge Wanger issued an order declaring unlawful several portions of the biological opinion and reasonable and prudent alternative prepared by the United States Fish and Wildlife Service to protect delta smelt. The Court held that the federal government should have considered impacts on the human environment when implementing the pumping restrictions and that the specific restrictions imposed by the federal government were not "adequately justified by generally recognized scientific principles." In addition, Judge Wanger held that the federal government failed to use the best available science in analyzing and addressing take of delta smelt at the project pumps, which in the Court's view "raises the spectre of bad faith" on the part of the federal wildlife agency. The parties, including the Coalition, have agreed to work together to develop a temporary plan with regard to short-term Delta water operations. If an agreement cannot be reached, another hearing before Judge Wanger will take place to decide how the water projects will be operated as a result of the Court's decision.
WATER QUALITY
The Coalition has filed a lawsuit against the City of Stockton and San Joaquin County for discharging toxic chemicals and other pollutants into the Delta. The legal action, under the federal Clean Water Act and Endangered Species Act, targets the municipal storm sewer system operated by the City and County, which has discharged pollutants in violation of applicable permits limits resulting in degraded water quality in the Delta and adverse impacts on fish species that reside in the Delta, including delta smelt and salmon.
The Coalition entered into a settlement agreement with Mirant Delta LLC related to its operation of two power plants in the Delta. These power plants utilize water from the Delta to condense steam used to rotate turbines that generate electricity; the process, known as once-through cooling, involves intake structures that can inadvertently harm fish when water is pumped into the plants. The settlement provides for increased monitoring of the aquatic impacts of power plant operations and a specified timeframe to complete consultation with the federal wildlife agencies regarding the impacts of power plant operations on endangered and threatened fish, including the delta smelt.
Title 27: Unified Program . Title 27, Division 1, General Functions and Responsibilities, Subdivision 4, Sate Delegation, Chapter 1, Unified Hazardous Waste and Hazardous Materials Management Regulatory Program (Effective May 14, 1999).
Fact Sheets . On this page you will find 1995 and 1997 fact sheets.
Quality Improvement Team Handbooks . Information about Senate Bill 1082 (Calderon, Chapter 418, Statutes of 1993) directed Cal/EPA to improve the quality, efficiency, and cost effectiveness of our programs while simultaneously increasing the level of environmental protection.
Famed naturalist John Muir captured the vital importance of education about the environment when he said, "Tug on anything at all and you'll find it connected to everything else in the universe." Imagine the possibilities if that understanding began, for students, as early as Kindergarten and continued through high school. With the Education and the Environment Initiative (EEI) Curriculum, that vision is well on the way to becoming a reality.
Field-tested in Kindergarten to 12th grade classrooms from San Diego to California's North Coast, the 85 EEI Curriculum units cover selected academic content standards in both Science and History-Social Science. Each EEI Curriculum unit is designed to teach one or more standards to mastery.
The State Board of Education (SBE) unanimously approved all 85 EEI Curriculum units. With SBE's stamp of approval, the 85 EEI curriculum units are now available for use in California's classrooms.
The first environment based curriculum approved by the California State Board of Education.
Teaches students about their relationship with the environment and how humans interact with natural systems.
Teaches select California academic standards to mastery.
Does not place an extra burden on teachers.
Makes use of, and works well with, adopted California Department of Education instructional materials.
Includes “Extension and Unit Resources” pages with ideas and links to community resources, including environmental education providers, businesses, and/or agencies.
Learning Objectives for the 85 EEI Curriculum Units
The Model Curriculum Plan (PDF, 1 MB) outlines the proposed methodology, scope, and sequence for the EEI Curriculum pursuant to the law's requirements.
During the development of the Model Curriculum Plan, input was solicited from state agencies, education organizations, business groups, universities, and environmental organizations.
In addition, an Educator Needs Assessment was sent to 10,000 teachers and numerous focus group meetings and discussion sessions were conducted to gather information regarding design elements for the EEI Curriculum. Design alternatives were developed as a result of these meetings.
The results of the Educator Needs Assessment indicated that teachers would require the EEI Curriculum to address grade and discipline-specific standards. In response, the Model Curriculum was designed to fit with teachers' existing lesson plans without increasing instructional content. Each lesson may stand alone or be used in combination with other units. It provides a scope and sequence for teaching the EP&Cs through a learning continuum from kindergarten through 12th grade.
The Model Curriculum Plan was reviewed by State of California environmental organizations, Curriculum and Supplemental Materials Commission liaison, EEI Education Partnership, and educational entities.
Bringing the Environment into Classrooms in a Meaningful Way!
The NOAA California Bay Watershed Education and Training (B-WET) Program provides funds to support environment-based education throughout the watersheds of San Francisco Bay, Monterey Bay, and Santa Barbara Channel.
Funded projects provide " meaningful " (pdf) watershed educational experiences to students, teachers, and communities.
Recognizing that an educated community is the key to understanding and sustaining the Nation's ocean and coastal environments, NOAA has developed B-WET into a national program .
2011 World Environmental and Water Resources Congress
Location: Palm Springs, CA
SPONSOR
American Society of Civil Engineers' Environmental & Water Resources Institute
LOCATION
Palm Springs Convention Center
Palm Springs, CA
DETAILS
The World Environmental & Water Resources Congress is an important opportunity for professionals in the environmental and water fields to convene and focus on topics of the day. This year's technical program focuses on “Bearing Knowledge for Sustainability”. It is important that the environmental and engineering community integrate sustainability, in dealing with today's issues whether they be technical, economic, social, environmental or political. To that end a number of symposia are being offered including:
* Arid Lands Symposium
* Climate Change Symposium
* Sustainability Symposium
* 6th World Water Forum Symposium: North American Regional Event (tentative)
The congress will also feature our traditional technical tracks such as urban water resources, dam safety, watershed management, systems engineering, water and wastewater engineering, international issues and projects, and a strong local program focused on southwest environmental water issues such as the restoration of the Salton Sea, the Bay Delta Program, and state of the art infrastructure projects.
Combating the Wildfire Threat with Commonsense Solutions
Given your interest in federal land management, I want to tell you about an event I held regarding the Catastrophic Wildfire Community Protection Act , legislation I have introduced to combat the wildfire threat to communities in our area and across America. Living in Northern California, you know all too well the danger wildfires pose to our lives and property. For too long, frivolous lawsuits from fringe environmental activists have prevented the necessary thinning of our forests. It is essential that we liberate local fire prevention efforts by providing the people living in at-risk communities a greater role in protecting themselves. The Catastrophic Wildfire Community Protection Act would do exactly that by allowing critical forest thinning projects to go forward in a timely manner, and authorizing at-risk communities to implement the emergency action plans that they developed to reduce the threat of catastrophic fire. Click here to get more in-depth information on my legislation.
The event was held on the property of Moak family, who instead of evacuating during the 2008 fires, remained behind to defend their property. The surrounding area of Concow was decimated by those fires with over 100 residences lost, serving as a tragic example of the need for significant change in forest management policy. Fortunately, the Moaks were successful in protecting their property. Sadly, however, the 2008 fires took the lives of 12 individuals in Northern California and burned more than a million acres. You can read the full text of my prepared remarks below:
First off, I would like to thank Pete Moak for hosting us here today. As you can see around you, Pete was in quite a fight a few years ago to protect his home and property. Fortunately he was successful in defending his property but the sad part is that the fire that threatened this community and Pete's home could have been significantly lessened in the first place.
The 2008 fire season saw more than a million acres of our forests burned, the tragic loss of several wildland firefighters, the evacuation of thousands and the loss of hundreds of homes and businesses. Sadly, nearly three years later, the forest management situation has yet to improve, leaving the threat of another devastating wildfire season just around the next corner.
We cannot control the weather, lightning strikes, or an unfortunate human-induced spark, but we can control the overstocked and unhealthy forests that fuel these fires. Despite the enactment of numerous legislative and administrative actions to address this fuel, our forests and communities remain at-risk to the next lightning storm or stray spark.
Which brings us here today. In response to these conditions and the inability of previous efforts to reduce this dangerous fuels build-up. I have introduced the Catastrophic Wildfire Community Protection Act. This legislation builds on and expands existing authorities – such as those authorized by the Healthy Forests Restoration Act of 2003 – to achieve fuels treatments in our at-risk communities to reduce the risk of wildfire through implementation of collaboratively developed fuels reduction and forest thinning projects. This bill also establishes an emergency process to expedite these projects should the county, in concurrence with the state, declare an emergency due to the threat of wildfire.
Most North State residents fully understand the reality facing the forests in their backyard. Unfortunately, balanced forest management continues to be opposed by people residing in cities far away from both the forests they supposedly aim to “protect” and the danger facing these communities Under current law, these fringe groups are allowed to –for the cost of a postage stamp – file lawsuits against any forest management project on federal land that they happen to spot in the Federal Register. These actions occur notwithstanding the input and collaboration from professional foresters and other similarly-trained experts, thus allowing these minority views to displace the science-based efforts of the many individuals who hold a vested interest in sound forest management and reducing the dangerous fuel load around their communities.
It is my hope that this legislation can cut through this stalemate and help reduce the immediate risk affecting our forest communities. I will work with my colleagues in the House to move this legislation as quickly as possible. President Obama has spoke about ‘restoring science to its rightful place.' I hope that President Obama and the Senate will join me in allowing commonsense forest management and science to prevail in response to the risk of catastrophic wildfire.
WoodyBiomass: San Joaquin Valley, CA. Akeida Capital Management own Merced Power (El Nido) & Chowchilla Biomass after big EPA fines for original owner.
Posted 8 days ago
WoodyBiomass: USDA FSA announce first BCAP Project Area where growers will be eligible to receive funding for producing energy crops. http://j.mp/mt8TZb
Posted 11 days ago
WoodyBiomass: Visalia, CA. EdeniQ & Logos Technologies to build pilot scale cellulosic biorefinery. http://j.mp/iHfwvS (Business Journal)
Posted 11 days ago
California Partnership Academies (CPA) - The CPA model is a three-year program (grades ten-twelve) structured as a school-within-a-school. Academies incorporate integrated academic and career technical education, business partnerships, mentoring, and internships.
Woody biomass in forests is a huge potential resource in California. Many forests are at great risk of wildfire or disease due to interruptions in the natural fire cycle. Ecological restoration and fuels reduction projects create large volumes of woody biomass. This material is often burnt in piles in the forest when it could be used to make products or energy. Woody biomass utilization offers land managers an opportunity to dispose of material in a cost effective manner and reduce emissions while creating local economic development.
The Woody Biomass Utilization Group at UC Berkeley works in 3 main areas:
The UC Woody Biomass Utilization Group has worked with many applicants to the Forest Service Woody Biomass Utilization grant program. Between 2007 and 2010 we helped 15 small businesses, non-profits and tribes to secure over $4.4m though this program. Equipment purchased included woody biomass harvesting and processing equipment. The result is an increased infrastructure in California to process and add value to woody biomass from National Forest System lands. Check out our Grants pages for information on this and other programs.
WoodyBiomass: San Joaquin Valley, CA. Akeida Capital Management own Merced Power (El Nido) & Chowchilla Biomass after big EPA fines for original owner.
Posted 8 days ago
WoodyBiomass: USDA FSA announce first BCAP Project Area where growers will be eligible to receive funding for producing energy crops. http://j.mp/mt8TZb
Posted 11 days ago
WoodyBiomass: Visalia, CA. EdeniQ & Logos Technologies to build pilot scale cellulosic biorefinery. http://j.mp/iHfwvS (Business Journal)
Posted 11 days ago
Grants
There are a number of grants available that are relevant to woody biomass utilization projects. This section explains and identifies relevant programs. Although there are many woody biomass to energy grant and secured loan programs from the Department of Energy and USDA there are actually very few programs that can benefit smaller and non energy projects.
Grant programs are constantly changing and we aim to keep you up to date with the latest developments in the most relevant programs.
USDA Forest Service TMU Woody Biomass Utilization Grant Program
This is a national program that has run on an annual basis since 2005. It is managed by the State and Private Forestry Technology Marketing Unit located at the Forest Products Laboratory in Madison, WI.
For more information on this grant click here also check the TMU homepage . We have compiled maps that show the locations of successful projects for the grant in 2007 , 2008 , 2009 and 2010 .
The program changed radically in 2011 to only fund engineering studies of wood to energy projects.
USDA Farm Service Agency Biomass Crop Assistance Program (BCAP)
BCAP provides financial assistance to producers or entities that deliver eligible biomass material to designated biomass conversion facilities for use as heat, power, biobased products or biofuels. Initial assistance will be for the Collection, Harvest, Storage and Transportation (CHST) costs associated with the delivery of eligible materials.
California Association of Resource Conservation and Development Councils (CARC&DC) Biomass Technical Assistance Grant
This grant was aimed at biomass conversion technologies which utilize large amounts of wood fuel from national forests and other areas to reduce wild fire hazzards, especially in the wildland urban interface. The program ended in December 2010.
California's RREA program takes an integrated approach to educational outreach. Outreach groups include range and forest landowners, government agencies, interest groups, and policy makers. The most critical environmental issues targeted by this program include:
• Conservation and enhancement of wetlands/riparian resources
• Endangered species/biodiversity
• Atmospheric pollution/global climate change
• Erosion/nonpoint source pollution
• Water quality/quantity
These issues require integrative approaches from diverse perspectives and innovative solutions.
Through the limited federal funds allocated to RREA, we leverage the research results using our Cooperative Extension delivery network.
Cooperative Extension, the principal outreach arm of the Division of Agriculture and Natural Resources, includes more than 250 specialists on the Berkeley, Davis and Riverside campuses, as well as 200 county academic appointees, or advisors, in the state's communities.
The results of this delivery system, featured on this Web site in the stories of California's landowners, demonstrate the continued success of the original vision for the public university system “on behalf of the people.”
California Watershed Assessment Manual (Volumes I and II )
The Region 9 Water Quality program is a partnership linking the Land Grant Institutions of American Samoa , Arizona , California, the Commonwealth of the Northern Mariana Islands , the Federated States of Micronesia, Guam , Hawaii, Republic of the Marshall Islands , Navajo Nation, Nevada and the Republic of Palau .
Government Activity in Water & Environmental Issues - RWQ002 [ PDF ]
Safe Drinking Water - A Common Concern for. . . - RWQ003 [ PDF ]
Reclaiming Wasterwater for Benificial Uses - RWQ004 [ PDF ]
Small Scale Animal Waste Management - RWQ005 [ PDF ]
Detecting Leptospira in Water: Preliminary Results from a Regional
Collaboration, University of Hawaii and University of Nevada [ PDF ]
Southwest States releases
Nitrate Index Tool Available For Growers - SWWQ001 [ PDF ]
Do Pet Recreation Areas Affect Water Quality? - SWWQ002 [ PDF ]
Catch the Rain! Rainwater Harvesting Activities 4-H2O: A Guide for 4-H Leaders and Teachers. [Order Online here ]
Drinking Water & Human Health
Households that maintain their own water supply system, such as a well or a rainwater collection system, do not fall under the jurisdiction of the Safe Drinking Water Act. These predominantly rural households are responsible for the safety of their own drinking water supply. Accordingly, their informational need is significantly greater than their counterparts served by public water systems. Cooperators from the Land Grant universities and colleges that make up the Region 9 Water Program address informational needs at the consumer level by providing unbiased research-based information to the consumer through publication and outreach education.
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Water Conservation & Agricultural Water Management
Agricultural water management entails making decisions on irrigation and, if necessary, drainage practices on farms. In this context, water conservation means irrigating in a manner that results in low surface runoff from the field, and only the amount of water necessary to leach excessive salts moving below the crop root zone. Water management decisions include choices of irrigation systems (i.e. furrow, sprinkler, drip, etc.) and programming the time and amount of irrigation. Region 9 is engaged in research and provides science-based educational materials directed toward achieving optimal agricultural water management. The information is also useful for irrigation management in urban settings.
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Watershed Management
Watershed management recognizes that the water quality of our streams, lakes, and estuaries results from the interaction of upstream features. Activities of all land uses within watersheds impact the water quality of down gradient water bodies. Point and nonpoint sources of pollution in a watershed contribute nutrients, bacteria, and chemical contaminants to U.S. waterways. Watershed management encompasses all the activities aimed at identifying sources and minimizing contaminants to a water body from its watershed.
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AmeriCorps USA Watershed Stewards Project
Mission Statement: The AmeriCorps Watershed Stewards Project mission is to conserve, restore, and sustain anadromous watersheds for future generations through education and high quality scientific practices.... more »
Programs/Resources: Watershed Education
Contact: Education Team Leader, 707-725-8601, wsp.etl@ccc.ca.gov
Barry R. Kirshner Wildlife Foundation
Mission Statement: The Barry R. Kirshner Wildlife Foundation was founded in 1994. It is conveniently located just minutes south of Chico in Durham; it is the only organization of its kind in California, north of Sacramento. The mission of the found... more »
Programs/Resources: Endangered Animals-Wildlife Education
Contact: Roberta Kirshner, Executive Director, 530.345.1700, admin@kirshner.org
Big Chico Creek Ecological Reserve
Mission Statement: The mission of the CSU, Chico Research Foundation's Ecological Reserve System and especially the Big Chico Creek Ecological Reserve is to preserve critical habitat and to provide a natural area for environmental research and educa... more »
Programs/Resources: Ecological Research, Nature Observation Hike
Contact: Jeff Mott, Director, 530.898.5010, jmott@csuchico.edu
Big Chico Creek Watershed Alliance
Mission Statement: The mission of the Big Chico Creek Watershed Alliance is to protect and enhance the ecological integrity and economic vitality of the Big Chico Creek watershed through cooperative efforts. In partnership with landowners, interest... more »
Programs/Resources: Youth Stream Team
Contact: Susan Mason, 530.892.2196, coordinator@bigchicocreek.org
Butte Environmental Council
Mission Statement: We encourage the preservation, conservation, and restoration of the Earth's natural resources in northern California through education, advocacy, and referral services. ... more »
Programs/Resources: Natural Resource Advocacy & Education Programs for Butte County
Contact: Mary Muchowski, Education & Outreach Coordinator, 530-891-6424, marym@becnet.org
Central Modoc River Center
Mission Statement: The mission of the River Center is to foster natural resource stewardship and promote the sustainability of the local community.... more »
Programs/Resources: Central Modoc River Center Education Program
Contact: Valerie Lantz, 530-233-5085, the.river.center@frontiernet.net
Chico Creek Nature Center
Mission Statement: Our mission is to enhance the quality of all life by promoting understanding, awareness, appreciation, and knowledge of our environment through environmental education in Bidwell Park. It is the philosophy of the Chico Creek Natur... more »
Programs/Resources: Environmental Education Program
Contact: Tom Haithcock, Executive Director, 530-891-4671, info@bidwellpark.org
Coleman National Fish Hatchery - U.S. Fish & Wildlife Service
Mission Statement: The Coleman National Fish Hatchery was established in 1942 to mitigate the loss of natural salmon to historic spawning areas. The hatchery spawns Chinook salmon and steelhead which migrate up the Sacramento River from the Pacific... more »
Programs/Resources: Coleman Fish Hatchery Happenings
Contact: Sharon Gower, 530.365.8622, sharon_gower@fws.gov
Coloma Outdoor Discovery School
Mission Statement: Coloma Outdoor Discovery School celebrates the culture, music, and folklore of the California Gold Rush using lessons of the past to awaken students' interest and sense of responsibility for the environment. Coloma Outdoor Disco... more »
Programs/Resources: Coloma Gold Rush/Living History Program, Coloma Outdoor Discovery School, Coloma Outdoor Discovery School Science Program, Coloma Outdoor Discovery School Team Discovery Ropes Challenge
Contact: Kindra Garcia, 530-621-2298, kindra@cods.org
CREEC 2
Mission Statement: CREEC 2 supports environmental education networking for the nine northeastern counties in California. We sponsor curriculum workshops, disseminate environmental education information regarding exemplary curricula, grant opportun... more »
Contact: Cassandra Simons, 530.225.0111, csimons@shastacoe.org
Programs/Resources: Natural & Local History Tours - Oroville
Contact: Rex Burress (for tours) or Margaret Fowler, 530-533-5936 or 530-532-9777, kandmfowler@comcast.net
French Creek Outdoor School
Mission Statement: French Creek Outdoor School is located at the JH Guest Ranch in the beautiful Scott Valley, on the eastern slopes of the Russian Wilderness area. The hiking trails and meadows give panoramic views of the high peaks in the Russian ... more »
Contact: Jason Singleton, 530.842.8400, jsing@sisnet.ssku.k12.ca.us
GLOBE Program
Mission Statement: GLOBE (Global Learning and Observations to Benefit the Environment) is a worldwide hands-on, primary and secondary school-based science and education program. GLOBE's vision promotes and supports students, teachers and scientists ... more »
Programs/Resources: Elementary Globe, Fresno GLOBE Program Teacher Training, GLOBE - NASA Ames Research Center, GLOBE - Sonoma County Office of Education, GLOBE - University of California at Santa Cruz, GLOBE - University of Redlands, GLOBE Educational Services, GLOBE for Los Angeles
Contact: Nan McClurg, GLOBE North America Regional Desk Office, 800-858-9947 (8 AM - 5 PM, Mountain Time), united-states@globe.gov
Gray Lodge Wildlife Area -Department of Fish and Game
Mission Statement: To manage California's diverse fish, wildlife and plant resources and the habitats upon which they depend for their ecological values and for their use and enjoyment by the public. Located approximately 60 miles north of Sacrament... more »
Programs/Resources: Exploring The Wetlands, The Nature Bowl, Wetland Discovery Nature Trail, Wildlife Observation Hikes
Contact: Lori Dieter, 530-846-7505, ldieter@dfg.ca.gov
Hat Creek Radio Observatory
Mission Statement: The Hat Creek Radio Observatory (HCRO) is located in Hat Creek, California and is home of the Allen Telescope Array (ATA).The ATA is a joint project between the SETI Institute and the Radio Astronomy Lab. The ATA is currently unde... more »
Programs/Resources: Radio Astronomy
Contact: Rick Forester, 530.335.2364, rick@hcro.berkeley.edu
Klamath Basin National Wildlife Refuges Complex
Mission Statement: The mission of the (National Wildlife Refuge) System is to administer a national network of land and waters for the conservation, management, and where appropriate, restoration of fish, wildlife, and plant resources and their habi... more »
Contact: Michele Nuss, (530)-667-2231, michele_nuss@fws.gov
Lake Oroville State Recreation Area
Mission Statement: Through interpretive and educational programs, the public gains appreciation and insight into California's natural and cultural riches. Through leadership and example, the Department will mentor practices to sustain these riches ... more »
Programs/Resources: Environmental & Cultural Education Outreach Program
Contact: Michael Hubbartt, (530) 538-2219, mhubbartt@parks.ca.gov
Lassen County Office of Education - Outdoor Education
Mission Statement: The mission of the Lassen County Office of Education is to provide essential and necessary resources, services, support, and leadership to all public schools in Lassen County that will assist in the improvement of programs and dev... more »
Programs/Resources: 5th Grade Day in the Forest, 6th Grade Outdoor School
Contact: Gwen Pacheco, 530-257-2196 x3039, gpacheco@lassencoe.org
Lassen Volcanic National Park
Mission Statement: The National Park Service preserves unimpaired the natural and cultural resources and values of the national park system for the enjoyment, education, and inspiration of this and future generations. The Park Service cooperates wit... more »
Programs/Resources: Earth & Plant Science Curriculum Materials, Ranger Led Education Programs
Contact: Steve Zachary, 530-595-4444, steve_zachary@nps.gov
Lava Beds National Monument
Mission Statement: The National Park Service preserves unimpaired the natural and cultural resources and values of the national park system for the enjoyment, education, and inspiration of this and future generations. The Park Service cooperates wit... more »
Programs/Resources: Geology & History Programs
Contact: Angela Buckley, Education Coordinator, (530) 667-8119, Angela_Buckley@nps.gov
McLaughlin Reserve
Mission Statement: The mission of the Natural Reserve System (the McLaughlin Reserve being on of the NRS reserves) is to contribute to the understanding and wise management of the Earth and its natural systems by supporting university-level teaching... more »
Programs/Resources: Science and Stewardship Programs at the McLaughlin Reserve
Contact: Cathy Koehler, 707-995 9005, mclaughlin@ucdavis.edu
Modoc National Wildlife Refuge
Mission Statement: Modoc is one of over 500 refuges in the National Wildlife Refuge System - a network of lands set aside specifically to conserve fish, wildlife and plants. Managed by the U.S. Fish & Wildlife Service, the System is a living heritag... more »
Programs/Resources: Modoc National Wildlife Refuge Education Programs
Contact: Steve Clay, 530-233-3572, Steve_Clay@fws.gov
Nawa Academy
Mission Statement: Nawa Academy is a non-traditional boarding school that prepares students with diverse learning needs to meet the challenges and complexities of the future. Through an experiential approach to learning, a creative and caring facult... more »
Contact: David Hulll, Executive Director, 800-358-NAWA or 530-359-2215, info@nawa-academy.com
Northcoast Regional Land Trust
Mission Statement: The Northcoast Regional Land Trust is dedicated to the protection and enhancement of farms, forests, rangelands, and wild areas in perpetuity. Our vision is to create a sustainable community with a vibrant economy and landscape. ... more »
Programs/Resources: Canoe the Slough, Cows & Cattails, Interpretive Hikes, Marsh Monitoring
Contact: Lindsay Magnuson, (707) 822-2242, l.magnuson@ncrlt.org
Northern California Natural History Museum
Mission Statement: The mission of the Northern California Natural History Museum is to create a life-long learning environment that enables people to explore, interpret, and celebrate the magnificent natural heritage of our region through science, r... more »
Contact: Greg Liggett, Executive Director, 530-898-4121, gliggett@ncnhm.org
Pacific Gas and Electric Company's Energenius® Program
Mission Statement: To help young energy users to become "Energeniuses" which are people who use energy efficiently and safely.... more »
Programs/Resources: Energenius® Bill Buster Program, Energenius® E Program, Energenius® Habits Program, Energenius® Kindergarten Program, Energenius® Programs
Contact: Pam Murray, 415-972-5416, PMW2@pge.com
RARE- The Recycle and Rubbish Exhibit , Associated Students - CSU-Chico
Mission Statement: The Recycling And Rubbish Exhibit (R.A.R.E.) is a two part program that offers Butte County residents of all ages a chance to learn about the dynamics of trash, recycling, composting, and American society's attitudes toward waste ... more »
Programs/Resources: RARE - The Recycle and Rubbish Exhibit
Contact: Mandi McKay, 530-898-3368, rare@csuchico.edu
Redding Electric Utililty - School Program
Mission Statement: Redding Electric Utility (REU) offers free safety and conservation classes for 4th and 5th grade students in our service area. We also offer conservation and life skills classes for High School Students. Our Goal is very straight... more »
Programs/Resources: Electrical Safety and Conservation
Contact: Adrian Mallery, (530) 339-7300, amallery@reupower.com
River Partners
Mission Statement: The mission of River Partners is to create wildlife habitat for the benefit of people and the environment. River Partners protects the environment by implementing large scale restoration along streams and rivers. We work on the ma... more »
Programs/Resources: River Partners Watershed Education
Contact: Mona Cross, 530-894-5401, info@riverpartners.org
Sacramento National Wildlife Refuge
Mission Statement: Welcome to the Sacramento National Wildlife Refuge Complex, located approximately 90 miles north of the city of Sacramento. The Complex consists of five national wildlife refuges (NWR) and three wildlife management areas (WMA) tha... more »
Programs/Resources: Discover Wetlands - Environmental Education Activities, Junior Duck Stamp Receiving Site, Marsh Madness & California Waterfowl Association (CWA), Wild About Wetland Study Kits
Contact: Jennifer Stockton, 530-934-2801, Jennifer_Stockton@fws.gov
Sacramento River Discovery Center
Mission Statement: The Sacramento River Discovery Center will use educational displays, exhibits, hands-on instructional programs, watershed rehabilitation opportunities and other means to enhance the public's understanding, appreciation, wise use, ... more »
Programs/Resources: SRDC Educational Programs, SRDC Teacher & InternTraining
Contact: Carlene Cramer, 530-527-1196, srdc@tehama.k12.ca.us
Sacramento Zoo
Mission Statement: To inspire appreciation, understanding and respect for all living things through stimulating education, wholesome recreation and innovative species management.... more »
Programs/Resources: Operation Adaptation Wildlife Show at the Sac Zoo, Sacramento Zoo E-Feature, Sacramento Zoo Field Trips, Sacramento Zoo Loan Kits, Sacramento Zoo Outreach Program: Hip Habitats, Cool Critters, Sacramento Zoo Safari of the Senses, Sacramento Zoo Teacher Workshops, Teen Volunteer Program, ZooMobile Outreach, Sacramento
Contact: Education Department, 916-264-8814, ageiger@cityofsacramento.org
Science Works Hands-On Museum
Mission Statement: Southern Oregon's world class science museum features innovative exhibits, science shows and exploration for all ages. Our Mission: To inspire wonder and stimulate creative exploration through fun interactive science and the art... more »
Programs/Resources: Chemistry Matters, Discovery Labs
Contact: Skoshi Wise, Director of Education, 541-482-6767 ext 26, skoshi@scienceworksmuseum.org
Sequoia Park Zoo
Mission Statement: To inspire wonder, understanding and respect for the natural world by providing fun, rewarding educational experiences that encourage meaningful connections between animals, humans and our environment.... more »
Programs/Resources: Forest Ed-ventures at Sequoia Park Zoo, School Field Trip
Contact: Amber Neilson, 707-441-4217, education@sequoiaparkzoo.net
Shady Creek Outdoor School
Mission Statement: Mission: To facilitate a learning environment that inspires an enthusiasm for learning and fosters community and environmental stewardship. Since 1969, Shady Creek Outdoor School (Formerly Woodleaf Outdoor School) has provided w... more »
Programs/Resources: Outdoor Education - Residental School
Contact: George Stratman, Director, 530-822-2948, georges@sutter.k12.ca.us
Sierra Nature Notes
Mission Statement: Sierra Nature Notes is a web publication sponsored by the non-profit Yosemite Association. Written by researchers, our articles are first-person accounts of current environmental studies being done in the Sierra. Our emphasis is o... more »
Contact: George Durkee, 209-586-1652, edit@SierraNatureNotes.com
Siskiyou County Office of Education-Science & Watershed Education
Mission Statement: The Siskiyou County Office of Education provides services and specialized resources to schools on a countywide basis. The French Creek Outdoor School & Day Camps, Aquarium Incubator Project and Larry Wehmeyer Pond Project are pro... more »
Programs/Resources: Science & Watershed Program
Contact: Jason Singleton, 530-842-8402, jsing@sisnet.ssku.k12.ca.us
Sisson Museum & Mt. Shasta Trout Hatchery
Mission Statement: Mount Shasta City was known as the town of Sisson until it was renamed in 1924. The museum building was erected in 1906 and served as the main hatchery building of the California Department of Fish and Game Mount Shasta Fish Hatch... more »
Programs/Resources: Fish Hatchery Tour
Contact: Wanda Welbourn, 530-926-5508, sissonmuseum@sbcglobal.net
Spring Rivers Foundation
Mission Statement: Spring Rivers Foundation was established with two broad goals in mind: (1) to improve stewardship for the diverse native aquatic wildlife species in the Intermountain area of Northeastern California, and (2) to nurture the connec... more »
Programs/Resources: Our Watershed-A Living Classroom
Contact: Jeff Cook, 530.335.5446, jeff@springrivers.com
The Chico Museum - Far West Heritage Association
Mission Statement: The mission of the Chico Museum is to preserve, exhibit, and interpret the history and culture of Chico, Butte County and northern California. Through fascinating exhibits on endless topics of local history and interest, and thro... more »
Programs/Resources: Chico: A Place in Time 1830-2000, Chinese Taoist Temple, Maidu Artifacts
Contact: Jim Lynch, 530-892-1525, jimlynch@farwestheritage.org
The Shasta Conservation Fund
Mission Statement: The Shasta Conservation Fund is a non-profit organization fostering the conservation and wise use of natural resources for the residents of Shasta County.... more »
Contact: Leslie Bryan, 530-365-7332 x 215, leslie@westernshastarcd.org
The Siskiyou Environmental Education Center (SEEC)
Mission Statement: The mission of the Siskiyou Environmental Education Center is twofold. We provide diverse opportunities for EE Master's students to develop teaching and communication skills related to a career in environmental education. We also ... more »
Programs/Resources: Natural Science Study Kits
Contact: Susan Koralek, 541-552-6876, seec@sou.edu
Trinity County Resource Conservation District
Mission Statement: To assist people in protecting, managing, conserving, and restoring the natural resources of Trinity County through information, education, technical assistance, and project implementation programs. ... more »
Programs/Resources: AmeriCorps Watershed Stewards Project Site, Environthon, Range Camp, RCD Speakoff Contest
Contact: Pat Frost, District Manager, 530.623.6004, pfrost@tcrcd.net
Turtle Bay Exploration Park
Mission Statement: Turtle Bay Exploration Park educates visitors of all ages with entertaining and stimulating exhibitions and programs that interpret the complex relationships between people and their environments. Using the unique cultural, histo... more »
Programs/Resources: Turtle Bay Education Programs
Contact: Jan DeHate, 530-242.3108, jdehate@turtlebay.org
United States Forest Service, Pacific Southwest Region
Mission Statement: Multiple use on public lands managed by the United States Forest Service.... more »
Programs/Resources: Klamath National Forest, Lassen National Forest, Mendocino National Forest, Modoc National Forest, Plumas National Forest, Shasta Trinity National Forest
Contact: Brenda Kendrix, Community Relations, 707-562-9011, brenda_kendrix@fs.fed.us
Upper Sacramento River Exchange
Mission Statement: Promoting healthy watersheds through stewardship, education, restoration and community involvement.... more »
Programs/Resources: Science and Watershed Education Program
Contact: Vince Cloward, 530-235-2012, info@riverexchange.org
Western Shasta Resource Conservation District
Mission Statement: The mission of the Western Shasta Resource Conservation District is to collaborate with willing landowners, government agencies, and other organizations to facilitate the conservation or restoration of Western Shasta County's natu... more »
Programs/Resources: Conservation Planning Workshops, Watershed Education Lending Library, Watershed Educational Programs
Contact: Leslie Bryan, 530-365-7332 x 215, leslie@westernshastarcd.org
Whiskeytown Environmental School
Mission Statement: To provide a quality environmental education program which develops increased awareness and appreciation of our natural environment, fosters social responsibility for effectively managing and preserving our natural resources, and ... more »
Programs/Resources: Clear Creek Field Experiences, WES/Residental Outdoor Science School
Contact: Cassandra Simons, 530-225-0111, csimons@shastacoe.org
Whiskeytown National Recreation Area - National Park Service
Mission Statement: Located 8 miles west of Redding, Whiskeytown National Recreation Area is located at the juncture of the Klamath Mountain range and the northern edge of the Sacramento Valley, making it home to a special collection of animal and pl... more »
Programs/Resources: Gold Rush - Camden House & Gold Panning, Kayak Tours
Contact: Clinton Kane, Interpretation, (530) 242-3451, clinton_k_kane@nps.gov
CA Environmental Ed. Interagency Network (CEEIN)
Information on California state departments, boards, and commissions with oversight responsibility to protect California's environment.
About CEEIN
The California Environmental Education Interagency Network (CEEIN) is a state government consortium of environmental educators representing departments, boards, and commissions of the California Department of Education (CDE), California Environmental Protection Agency (Cal/EPA), The Resources Agency of California (RA), and the Department of Food and Agriculture (DFA). CEEIN fosters broad understanding of the State's environmental and cultural resources while affirming that education is essential to the development of understanding and respect for the environment. The CEEIN partnership provides a forum for its members to share resources, programs, and materials with California's public schools and students in kindergarten through university. This partnership is solidified by a memorandum of understanding, which has been signed by the state Superintendent of Public Instruction and the secretaries of Cal/EPA, RA, and DFA. CDE hosts the CEEIN Web site as one of its responsibilities on the partnership. The site was previously hosted by CalEPA through 2009.
The primary goals of CEEIN are to develop a unified response to the environmental education needs of California's educators and local governments, and to assist with statewide educational reform movements. Additionally, a "leadership by consensus" approach was devised to maintain the spirit of an open forum whereby the responsibility for meetings and projects are shared by all CEEIN agencies. The lead agency is designated every two years.
CEEIN subcommittees include Administration and Organization; Communications and Outreach; Diversity, Leadership, and Legislation; and Public and Private Partnerships.
CEEIN accomplishments include the Curricula and Compendia Project, supporting the California Regional Environmental Education Community (CREEC) network, establishing an outreach program that includes development and distribution of the CEEIN brochure, conducting workshops designed specifically for educators, and staffing exhibits booths at environmental conferences and fairs.
CEEIN members meet monthly to discuss and share information about national and statewide environmental education efforts. These monthly meetings allow participants to network with their counterparts at the other boards, departments, and commissions on a regular basis. Discussions enable the various participants to rapidly exchange information and increase the breadth of information dissemination. This communication enables members to maximize their efforts and minimize redundancy.
January 20, 2011 – Cal/EPA, 1001 I Street, Conference Room 230
February 17, 2011 – Cal/EPA, 1001 I Street, Conference Room 230
March 17, 2011 – Cal/EPA, 1001 I Street, Conference Room 230
*April 14, 2011 – Note: moved to second Thurs. due to Earth Day – Cal/EPA, 1001 I Street, Conference Room 230
May 19, 2011 – Cal/EPA, 1001 I Street, Conference Room 230
June 16, 2011 – Cal/EPA, 1001 I Street, Conference Room 230
July 14, 2011 – CDE, 1430 N Street, Conference Room 4305
NO August 2011 meeting
September 15, 2011 – CDE, 1430 N Street, Conference Room 4102
October 20, 2011 – CDE, 1430 N Street, Conference Room 4102
November 17, 2011 – CDE, 1430 N Street, Conference Room 4102
Information on California state departments, boards, and commissions with oversight responsibility to protect California's environment.
Curriculum Guides
Education and the Environment Initiative (Outside Source)
The mission of the Education and Environment Initiative is to develop a unified strategy to bring education about the environment into school districts using the Model Curriculum Plan and California's Environmental Principles and Concepts.
A Child's Place in the Environment (ACPE) (Outside Source)
ACPE is a series of six environmental education curriculum guides for elementary school teachers that integrates science, English-language arts, and selected children's literature and culminates with student projects, which enhance their environment and provide experiences in service learning. Guides correlate to California's content standards in science and English-language arts. Sample assessment questions for ACPE (Outside Source) are available for review.
The California Endangered Species Resource Guide identifies rare, threatened, and endangered species in all 58 counties of California. It is available through CDE Press by calling 800-995-4099 and ordering publication number 009779.
Resources from CEEIN Members
The following is a list of resources available from CEEIN members.
California Department of Education
Environmental Education Program
Mathematics and Science Leadership Office
1430 N Street
Sacramento, CA 95814
Phone: 916-327-4408
Fax: 916-323-2833
Web site: California Department of Education
Resources:
Free sample lessons and student assessment items for grades one through six from the exemplary elementary curriculum series A Child's Place in the Environment (Outside Source)
High quality EE resources can be searched at California's one-stop-shop for EE on the CREEC network (Outside Source)
California Endangered Species Guide, (Item # 9779) available from CDE Press at 800-995-4099
Office of the Ombudsman
1001 I Street
Sacramento, CA 95814
Phone: 916-322-6925 or 916-323-6791 (Office of the Ombudsman)
Fax: 916-322-4737
Web site: California Air Resources Board (Outside Source)
Resources:
Know Zone (Outside Source) Web pages for kids, students, and teachers
Online fact sheets for schools on integrated pest management (IPM) of cockroaches (PDF) (Outside Source) and Argentine ants (PDF) (Outside Source)
Online facts sheets on pesticides and child safety (Outside Source). Using insect repellents safely, tips for handling pesticides, and related topics.
Online information and referrals for integrated IPM in schools (Outside Source). Includes general information on reduced-risk pest management strategies.
Home2Ocean (Outside Source). Education resources for keeping pesticides out of waterways online.
Department of Toxic Substances Control
Education Unit
P.O. Box 806 (FLR 22-1)
Sacramento, CA 95812-0806
Phone: 916-323-9482
Fax: 916-327-0978
Web site: Department of Toxic Substances Control (Outside Source)
Resources:
The Hazard House Workbook (Outside Source) for youth groups, includes leader and member manuals and posters.
1719 24th Street
Sacramento, CA 95816
Phone: 916-341-3100, 800-952-5627
Fax: 916-323-4989
Web site: California Conservation Corps (Outside Source)
Resources:
Tutors/Mentors; After-School Programs; Conservation and Recycling Presentations; Partnership Opportunities
California Energy Commission
1516 Ninth Street MS-29
Sacramento, CA 95814
Phone: 916-654-4989
Fax: 916-653-5590 and #8211; Attention: Media and Communications Office
Web site: California Energy Commission (Outside Source)
Resources:
Energy For Keeps - Electricity and Renewable Energy Teacher Guidebook (Outside Source)
The Energy Commission has one of the most comprehensive energy information sites on the Internet including Energy Quest (Outside Source). A complete energy education resource for students, teachers, and parents.
Department of Boating and Waterways
2000 Evergreen Street, Suite 100
Sacramento, CA 95815-3888
Phone: (888) 326-2822
Fax: 916-263-0357
Web site: Department of Boating and Waterways (Outside Source)
1416 Ninth Street, Room 117
Sacramento, CA 95814
Phone: General Information 916-653-6420; Aquatic WILD (888) 945-3334 or 916-653-6132
Fax: 916-653-1856
Web site: Department of Fish and Game (Outside Source)
Project WILD (Outside Source) for kindergarten through grade twelve. Teacher guides (available free through Aquatic WILD Workshops) and other Council of Environmental Education program materials.
P.O. Box 944246
Sacramento, CA 94244-2460
Phone: Project Learning Tree 916-653-7958
Fire Prevention 916-653-9952
Fax: 916-653-6378
Web site: Department of Forestry and Fire Protection (Outside Source)
Resources:
Project Learning Tree (Outside Source). Curriculum materials for kindergarten through grade twelve educators (obtained only by attending a workshop).
P.O. Box 942896
Sacramento, CA 94296-0001
Phone: State Park Store 916-653-4000 General Information 916-653-6995
Fax: 916-654-6374 Education Web Site (Outside Source)
Web site: Department of Parks and Recreation (Outside Source)
P.O. Box 942836
Sacramento, CA 94236-0001
Phone: Publications Office 916-653-1097
Public Affairs Office, Education Program 916-653-9892
Fax: 916-653-4684 Education Web Site (Outside Source)
Web site: Department of Water Resources (Outside Source)
Resources:
Teachers Guides, Student Workbooks, Posters, and Videos; order using the on-line Water Facts and Fun Catalog (Outside Source)
Communities: A review of curricula on natural and built environments; order using the on-line Water Facts and Fun Catalog (Outside Source)
1220 N Street
Sacramento, CA 95814
Phone: Invasive Species Campaign 916-654-0768 Public Affairs 916-654-0462
Fax: 916-657-4240
Web site: California Department of Food and Agriculture (Outside Source)
Topical compilations containing descriptive evaluations of high quality, supplemental, environmental education curricula for kindergarten through grade twelve.
Communities: A review of curricula on natural and built environments
Available for free through the Department of Water Resources water education form (Outside Source)
Compendium for Energy Resources (PDF; Outside Source)
This compendium is an easy-to-use guide to environmental education materials focusing on energy resources.
Integrated Waste Management and Used Oil
Information on quality instructional materials, which have been teacher-evaluated.
(Call CDE Press at 1-800-995-4099 and ask for publication number 009721)
Water Resources
Available for free through the Department of Water Resources water education form (Outside Source)
The Office of Civil Rights (OCR) has not adequately adjudicated Title VI complaints - those addressing allegations of discrimination against communities of citizens affected by environmental rules promulgated by the EPA. Only 6% of the 247 Title VI complaints have been accepted or dismissed within the Agency 20-day time limit. OCR's backlog of Title VI cases stretches back to 2001. At the time of the report's publication, there were numerous cases that have been awaiting action for up to four years. Two cases have been in the queue for more than eight years.
OCR has struggled to track, investigate, and resolve Title VII cases - those addressing Equal Employment Opportunity (EEO) violations inside the Agency - in a timely or effective manner. OCR's Title VII function is know for poor inestigative quality and a lack of responsiveness. It has not been able to perform its most fundamental Title VI administrative tasks related to filing mandatory reports and process complaints and writing final agency decisions.
OCR has not completed compliance checks of EPA grantees, in a timely or effective manner, to ensure that grantees are not engaging in discrimination in their work.
OCR has not consistently filed its statutory affirmative employment reports over the past five years, although the 2010 MD-715 was submitted on time. In the area of Affirmative Employment and Diversity, OCR did not even complete its annual Management Directive 715 (MD-715) EEO report (a basic administrative task required of all Federal agencies) for 2006, 2007, and 2008.
According to the report: "This situaton has exposed EPA's Civil Rights programs to significant consequences [that] have damaged its reputation internally and externally. Much of this owes to OCR's challenges at the leadership levels over a period of years."
Report recommendations include:
Complete efforts to fill OCR's leadership positions expeditiously with qualified, experienced, and motivated civil rights professionals. A competent leadership team will enable OCR to implement all of the other needed changes, while building credibility.
Reevaluate all staff job roles and formally document required skills, competencies and experiences for each role. With well-defined job roles, OCR can evaluate its current workforce against the requirement and identify gaps.
Develop and execute a workforce plan that includes creation of well-defined career paths, employee performance management processes, new training programs and employee recruiting and selection processes.
The report concludes: "Building a more capable workforce from top to bottom will enable EPA and OCR to address its significant day-to-day operating issues and implement the other more strategic changes that are required."
The entire debate on the lokpal bill has, unfortunately, become concentrated on the inclusion of the prime minister, members of Parliament and the higher judiciary in the ambit of the lokpal. These are vital issues, but not the only ones. Where does the common man go, for instance, when junior functionaries extort and do not deliver?
The lokpal, as per the government draft, will have jurisdiction only over Group A central government officers. How many times does a common man have to deal with Group A officers, whether in the income tax, excise or customs departments or in the railways? The common man deals with much junior officers in these departments. At the same time, the aam aadmi has to deal with several official departments like ration, water, electricity and licensing.
The contention of the government for keeping all government employees out of the lokpal's and lokayukta's ambit is that since there are 4 million central government employees, 2 million public sector employees and 8 million state employees, it cannot check their corruption. It would require a huge workforce. That isn't a valid excuse to give up and leave holes in delivery services.
Internationally, one anti-corruption staff is provided for every 200 government employees. Against this, there are just 15 anti-corruption officers to check 85,000 Delhi Police staff. The Central Bureau of Investigation has only 3,000 staff in its anti-corruption wing to check corruption of 4 million central government and 2 million public sector employees. The corrupt know that corruption is low risk with high gains.
A question is being raised that if you put a large number of people in the anti-corruption set-up, how can you ensure their integrity? The integrity of an organisation does not depend upon the size of that organisation. It depends upon its internal systems. The Delhi Metro, with a staff size of 7,000 people, has delivered a world class metro only because the it has better systems, not because of its staff numbers.
Further, the government's lokpal bill has some strange proposals. As soon as a citizen makes a complaint to the lokpal against any public servant, the latter will have a right to file a cross-complaint against the citizen straight with the special court, without any preliminary enquiry by any agency, that the complaint is false or frivolous. The government will provide a free advocate to the public servant to file this case. The citizen will have to defend himself on his own in the special court.
While the government's lokpal bill will have jurisdiction over a miniscule number of officers, it will have jurisdiction over all community initiatives, NGOs and citizen groups in the country — whether funded by the government or not. Even unregistered groups of people in remote villages are covered under the ambit of the government's lokpal. So, in a remote village, if a group of youngsters, using the Right To Information, detects corruption in the panchayat, the lokpal will not have jurisdiction over the sarpanch or the block development officer but only over the complaining youngsters.
Also, there is stiffer punishment for the complainant than the corrupt government servant. If the special court concludes that the complaint is frivolous or false, the citizen faces a minimum of two years of punishment. But if the corruption charges against a government servant are proved, there is a minimum of six months of punishment for the corrupt government servant.
According to the government's lokpal bill, before filing an FIR and before prosecuting a corrupt officer, the lokpal will have to issue a show cause notice to him and present all evidence to the accused. Does the police issue a show cause notice to a burglar asking him why an FIR should not be filed against him?
( Arvind Kejriwal is a social activist. Kiran Bedi is a social activist and a former police officer. Both are Magsaysay Award winners and members of the joint drafting committee of the lokpal bill )
Resource Record Details
Directory of FEMA Earthquake Partners
This Directory of FEMA Earthquake Partners provides contact information for more than 300 organizations and individuals involved in earthquake mitigation at the federal and state levels and in the non-governmental sector. The Directory is organized into the following sections: Section I: Introduction, Section II: FEMA Earthquake Partners, Section III: In House Resources, and Section IV: List of Acronyms.
DENVER — Anti-tax activist Douglas Bruce denies he practiced law without a license, according to a document received Thursday by the Colorado Supreme Court.
The high court i ssued in May an order for Bruce to show cause why he shouldn't be enjoined from the unauthorized practice of law. He was served with the order in June had until Thursday to respond.
“[T]his proceeding is illegal and is being conducted without legal jurisdiction,” Bruce wrote.
He generally denied all claims that he acted as an attorney in two lawsuits that were filed by supporters against the city of Colorado Springs. Bruce, who got a law degree in 1973 and once served as prosecutor in Los Angeles, specifically denied that he is “an inactive California attorney.” According to the California state bar website, the status of his law license there is “resigned.”
He questioned whether he was being entrapped into practicing law without a license by responding to the show-cause order. He also demanded extensive discovery and a jury trial with a governor-appointed judge.
Hearings in unauthorized practice of law cases are usually heard before Colorado Supreme Court Presiding Disciplinary Judge William Lucero, with the Office of Attorney Regulation Counsel presenting the case for the state.
The Department of Homeland Security's Federal Emergency Management Agency (FEMA) is pleased to announce the release of the updated Directory of FEMA Earthquake Partners , June 2011.
The updated Directory of FEMA Earthquake Partners provides current contact information for more than 300 organizations and individuals involved in earthquake mitigation at the federal and state levels and in the non-governmental sector. Section II of the Directory provides contact information (organization, web page link, name and title of key staff, staff email, and staff telephone number, if available) for the following groups:
National Earthquake Hazards Reduction Program (NEHRP) Agencies
Advisory Committee on Earthquake Hazards Reduction
FEMA Regional and Headquarters Earthquake Program Managers
State Earthquake Program Managers
Regional Earthquake Consortia
Seismic Safety Commissions, Committees, and Councils
Universities and Academic Research Centers
Non-Governmental Partners
Section III of the Directory lists the in-house resources of FEMA's partners, such as journals, magazines, or newsletters, through which FEMA can promote its earthquake publications and resources, best practices, and news of important events and activities.
Not all of the organizations listed under Non-Governmental Partners have a mission based on earthquake mitigation. Some organizations are included because their constituents, such as homeowners, school children, and property insurers, will benefit from or have a significant interest in earthquake mitigation. The Directory is intended to be a “living” document, and will be updated on a regular basis. If you believe your organization should be included in the Directory, or if you have an update to an organization or individual already listed in the Directory, please email Francoise Arsenault .
To view or download other NEHRP publications and products or to sign up for updates on earthquake risk mitigation publications, news, and events, visit Earthquake Publications and Tools .
Press Release 11-134
NSF and USAID Jointly Launch International, Interagency PEER Program to Advance Science Collaboration With the Developing World
USAID's Partnerships for Enhanced Engagement in Research (PEER) will leverage NSF investments in research to address global development challenges
July 7, 2011
Partnering for Sustainability
Corporate social responsibility is becoming more of a strategic advantage as organizations look to align themselves with partners that embrace good corporate citizenship. The Global Reporting Initiative (GRI) definition of CSR is: “a firm's accountability to internal and external stakeholders for organizational performance towards the goal of sustainable development.”
A rising social consciousness is inspiring the best companies to be premier corporate citizens, not only to provide exceptional value to customers but also to volunteer their time, money and resources to support local communities. But what should you consider when evaluating potential business partners?
Is there a culture of sustainability?
Look for partners that have a culture of social responsibility. Culture embodies the values, mindsets and behaviors of people in that organization. Start by looking at the senior leadership team as they are ultimately responsible for an organization's CSR performance. This team is responsible for entrenching CSR practices, measures and objectives throughout the company. Sustainability is top-led by actions. While many things can influence a culture of social responsibility, the single most important one is leadership – what leaders do and say – in that order.
Is there a CSR scorecard?
Organizations that are truly committed to a CSR strategy will have a corporate scorecard that tracks CSR priorities against results year-over-year. In addition to covering economic growth (the foundation of any sustainable organization), the CSR scorecard should also address environmental and social goals. This establishes a triple bottom line approach to doing business. Here's a potential framework and a few key questions to ask to get started:
Environmental sustainability. Is the organization committed to environmental change and do they have the strategy and metrics in place to measure progress? Is their environmental performance strategy disclosed? What does it cover – energy consumption, CO 2 efficiency, paper consumption, water consumption, recycling, others?
Community welfare. Does your potential business partner align their community investment strategy to their strategic business and financial priorities? Does the organization provide an opportunity for employees to play positive roles in social, environmental or other causes? Do they track donation amounts and volunteer hours?
As an example, we have opted for a comprehensive global CSR philosophy focused on “doing good” in the communities in which we work, live and serve. Since 2007, more than 3,900 of our contact center team members in the Philippines have volunteered over 26, 000 hours to build homes in the two TELUS Gawad Kalinga Villages, clean up rivers, conduct medical missions, give lectures on healthy living and hold livelihood sessions. Likewise, in Central America, our team members have donated over 10,000 hours in the last two years to build and improve schools for young children. These activities not only contribute to the community but also to the welfare and engagement of our employees.
Workplace well-being. Does your potential business partner bolster employee engagement with a focus on recognition, career and performance development? Do they have wellness targets – for example, how many employees take advantage of onsite fitness facilities or well-being programs? Are there employee engagement targets (often measured by what employees do and say)? For example, do employees say good things about the company? Would they recommend the company to others? Would it take a lot for them to consider leaving the company? Also, how much budget is set aside for employee learning and recognition? And more important, are these targets met each year?
Governance, integrity and transparency. Finally, how integrated, strategic and accountable are their CSR efforts within the direction of their business? And how much of this is made transparent and disclosed? At TELUS, for example, we use the Global Reporting Initiative (GRI-G3) reporting guidelines to help direct our own disclosure.
Why this matters
Your business partners are an extension of your own business, so ensuring their CSR programs are viable for the longer term helps everyone fulfill their commitments in both economically good and challenging times. Partnering for sustainability also benefits all stakeholders involved. For the CEO, CSR strengthens brand and reputation; for employees, it increases engagement and employer respect; and for customers, it enhances trust and willingness to do more business. In today's business climate, evaluating the social and environmental sustainability practices of your potential partners could go a long way to enhancing economic success.
July 7, 2011
NEHRP Recommended Seismic Provisions for New Buildings and Other Structures
Solicitation Number: HSFEHQ-11-R-0044 Agency: Department of Homeland Security
Office: Federal Emergency Management Agency
Location: Mitigation Branch
Solicitation Number : HSFEHQ-11-R-0044 Notice Type : Award Contract Award Date : June 24, 2011 Contract Award Number : HSFEHQ-11-C-0044 Contract Award Dollar Amount : $795,988 Contractor Awarded Name : National Institute of Building Sciences Synopsis : Added: Mar 25, 2011 4:06 pm
This Sources Sought is for 'Market Research' only. The purpose of this Sources Sought is to determine if there are qualified firms interested in this requirement. All interested and qualified parties are requested to submit required information by the closing date listed below.
The Department of Homeland Security, Federal Emergency Management Agency, Mitigation Directorate-Building Sciences Branch, is seeking qualified large or small businesses to continue FEMA's support of the model codes and standards development processes and to support related activities such as outreach and education to ensure that seismic hazards continue to be adequately addressed. The specific purpose of this effort is to support and encourage the adoption and enforcement of the seismic portions of the nation's model codes and standards. The reason for addressing one specific portion of the code is that as part of its role in the National Earthquake Hazards Reduction Program (NEHRP), FEMA is committed to supporting this nation's seismic codes and standards to keep them among the best in the world. This support has been manifested in the development and continued triennial updating of the NEHRP Recommended Seismic Provisions for New Buildings and Other Structures , the latest version of this document being the recently released 2009 edition (FEMA P-750), related training and design materials (FEMA P-751-753), and a simplified introduction (FEMA P-749). Development of the 2014 edition has also now begun. This support has also been manifested in the development and publication of various FEMA guidance documents on existing buildings, such as the Prestandard and Commentary for Seismic Rehabilitation of Buildings (FEMA 356).
The North American Industry Classification System (NAICS) code for these services is 541330 - Engineering Services. The Small Business Size Standard is $4.5 million average receipts per year over the last three years. The Small Business Administration may be used to verify business size.
This sources sought notice is for information and planning purposes only. The government will not pay or otherwise reimburse respondents for information submitted.
It is anticipated that a single contract will be awarded. Based upon evaluation of responses received by the closing date, the government reserves the right to set-aside any and all procurements that may result hereunder for small business concerns, the incumbent; or to open the follow-on solicitation to full and open competition.
Minimum capabilities must include documented evidence or experience and expertise in the following areas:
•1) Develop, submit and follow a Project Work Plan for this contract;
•2) Update and support the FEMA/BSSC Code Resource Support Committee (CRSC) to ensure that it continues to be staffed with appropriate experts from the seismic design and code development communities;
•3) Monitor and support submitted code changes based on the most recent edition of the NEHRP Recommended Seismic Provisions and other FEMA publications to ensure that the IBC, IEBC , IRC and other model codes will continue to be substantially equivalent to the NEHRP Recommended Seismic Provisions as directed under Executive Order 12699 as well as other FEMA design guidance publications for new and existing buildings ;
•4) Continuing to monitor the IBC, IEBC and IRC code change process to ensure that code changes submitted by other parties do not reduce the effectiveness of those model codes and to ensure that they will continue to be substantially equivalent to the NEHRP Recommended Seismic Provisions as directed under Executive Order 12699 as well as other FEMA design guidance publications for new and existing buildings , including FEMA 356;
•5) Continue to monitor the updates of consensus standards such as ASCE 7, 31, and 41 to ensure that these standards will continue to be substantially equivalent to FEMA's design guidance for new and existing buildings ;
•6) Perform outreach activities to encourage the adoption and enforcement of adequate building codes at the State and local level as part of FEMA's commitment to pre-disaster mitigation, especially for communities participating in FEMA's Pre-Disaster Mitigation initiative, including assisting local community code officials in adopting and enforcing a suitable code and assisting in the interpretation of that code as it is used by the local community.
•7) Develop and disseminate code-related outreach and education materials to encourage the proper use of building codes to reduce future earthquake losses.
•8) Continue to support training initiatives based on FEMA products that benefit the State and local adoption and enforcement of adequate seismic building codes.
All interested persons or businesses with these capabilities who are interested in performing the proposed effort are invited to submit your capability statements. Capability Statement is limited to 15 pages or less; please do not include marketing materials. Responses should be single spaced and single sided, using Times New Roman, 12-point font, and should not include attachments or appendices. Please list your company points of contact including e-mail, regular mail address, and telephone number(s). Please identify your business size, and classification.
This notice is not a request for competitive proposals. A determination by the Government not to compete this proposed requirement based upon responses to this notice is solely within the discretion of the Government. Information received will be considered solely for the purpose of determining whether to conduct a competitive procurement.
Whistleblower protections to be included in Criminal Justice Bill 2011
Take action - United We Serve - Learn more about programs that offer volunteer opportunities to protect the environment.
Learn about Your Right to Know - Right-to-know laws provide information about possible chemical exposures. Discover resources EPA provides the public in the spirit of right-to-know.
Search for and Comment on Regulations - Our proposed regulations are almost always open to the public for comment. Your participation leads to better regulations.
At Work - Information about preventing pollution in your workplace, and raising awareness of health and safety issues.
At School - Whether you are a student or a teacher in a class about the environment, EPA has lots of educational resources to offer you.
While Shopping - Find helpful information on how to choose makes and models that will reduce pollution, save energy and money.
In Your Community - Learn how to protect your neighborhood's natural resources, and get information on air and water quality in your community. Search your ZIP code area for information about facilities, emissions, and more.
Community Health - Learn about actions your community can take on concerns about environmental public health issues.
On the Road - Consumer information about the environmental impacts of transportation plus tips on cleaner cars, saving gas and improving mileage, boating pollution prevention tips, and more.
Think Globally - Learn about environmental issues that impact our world.
Act Locally - Learn about programs, opportunities, and tools to help you get involved and make a difference in your community.
Children's Health - Information on how to protect children from toxins, the sun, lead, and other potential environmental health threats.
Natural Disasters and Weather Emergencies : Homeowners, parents, caregivers, and others - preparing for natural disasters can greatly reduce the risks to health and the environment. Learn how you can reduce risks of contamination caused by hurricanes or floods, and stay safe when you lose power or there's an accidental spill.
#1 Safety Tip: Generator exhaust is toxic. Always put generators outside well away from doors, windows, and vents. Read more from CPSC
The National Science Foundation (NSF) and the United States Agency for International Development (USAID) today launched an international joint initiative to address global development challenges.
PEER, "Partnerships for Enhanced Engagement in Research," capitalizes on competitively-awarded investments to support and build scientific and technical capacity in the developing world.
NSF Director Subra Suresh, USAID Administrator Rajiv Shah and White House Office of Science and Technology Policy Director John P. Holdren spoke at an event held at the National Science Foundation this morning to celebrate this innovative partnership and to roll out the PEER program.
"I am delighted to see these two agencies collaborating to further President Obama's goals of strengthening America's science and technology enterprise and applying its outputs to challenges both domestic and global," said Holdren, assistant to President Obama for science and technology. "This partnership will help particularly with the application of science, technology and innovation to accelerate global development, with huge benefits for industrialized and developing countries alike."
"This is a win-win partnership," said NSF Director Subra Suresh, "The U.S. scientific community benefits from more robust international partnerships and an increased awareness of how research can be used to address global development challenges. Our foreign partners benefit from the expertise and enthusiasm of the U.S. scientific community, the engagement of U.S. universities, and an understanding that science can build bridges."
Six USAID-funded pilot projects through PEER explore research challenges related to ecosystems, climate change, seismology, hydrology and biodiversity in Tanzania, Bagladesh, Mali, Kenya and Burkina Faso and are linked with NSF investments.
The principal investigators of one project--Michael Steckler from Columbia University and his international collaborator Syed Humayun Akhter from the University of Dhaka in Bangladesh--attended the program launch and described their project, which explores life on a tectonically-active delta employing a convergence of earth science and geohazard research.
The attached video slideshow spotlights all six PEER pilot projects.
PEER will employ a merit review process similar to the one used to evaluate proposals by NSF when it chooses among proposals to fund extraordinary science and engineering. USAID announced that it has selected the National Academy of Sciences to administer the PEER program and has allocated $7 million for the initiative. This will be strategically coupled with merit-reviewed, NSF-funded research at U.S. institutions to address challenges at the interface of water, renewable energy, food security, climate change and disaster mitigation with an expected leveraging of $25 to $50 million.
"We're trying to actually change the way people think about what development is, what it could be and how we can create the kinds of solutions that inspire others to care and to address the needs of the billions of people who live without the benefits of two centuries of science and technology," said Shah. "And with the success and lessons learned from our six pilot projects, and the strength and expertise of those assembled here today, one can be sure, we're well on our way."
The EPA gets sued on a regular basis by environmental groups complaining about a lack of enforcement, a process that routinely requires legal settlements and significant taxpayer expense. Investors Business Daily's report today suggests that taxpayers may be funding more of the process than they know. Among the recipients of grants from the EPA are some of the same groups it faces in courtrooms:
One organization involved in the suit, the Environmental Defense Fund, has a long history of taking the EPA to court. In fact, a cursory review finds almost half a dozen cases in the past 10 years.
The odd thing is that the EPA, in turn, has handed EDF $2.76 million in grants over that same period, according to an IBD review of the agency's grant database.
This strange relationship goes well beyond EDF. Indeed, several environmental groups that have received millions in EPA grants regularly file suit against that same agency. A dozen green groups were responsible for more than 3,000 suits against the EPA and other government agencies over the past decade, according to a study by the Wyoming-based Budd-Falen Law Offices.
Surprised? Probably not, and for good reason. The EPA doesn't exactly discourage such lawsuits; in fact, the agency funded a handy guide instructing people how to go about suing them over ennvironmental enforcement. And, as IBD notes, the group that publishes the guide has received nearly $10 million in EPA grants over the past decade.
Here's another unsurprising surprise: the EPA usually winds up paying the legal fees associated with these suits. The Equal Access to Justice Act created what a former Bush official calls “sweetheart suits,” a lucrative business that ends up transferring funds from the federal government to activist groups … and their lawyers. It's a free ride for plaintiff attorneys, since the EPA doesn't get damaged by the process. In fact, the suits generally force the EPA to do what they want to do anyway, using the courts to grant them jurisdiction and authority that Congress withholds. It's not for nothing that the EPA funds guides on how to sue them most effectively.
It's a win-win for regulators. They get more power, make themselves less accountable to Congress, and fund groups they like outside of Congressional appropriations, especially now that pork-barrel spending has fallen out of favor. Trial lawyers get rich, too, a particular benefit for Democrats, who rely on that lobby for heavy political donations. The only people who lose are the taxpayers getting their pockets picked and the businesses that end up on the wrong end of the expanding regulatory state.
In accordance with Section 122(i) of the Comprehensive Environmental Response, Compensation, and Liability Act, as amended (“CERCLA”), 42 U.S.C. 9622 (i), notice is hereby given of a proposed administrative settlement for recovery of Past Response Costs and Future Response Costs, as these terms are defined in the settlement, concerning the Nuclear Metals, Inc. Superfund Site (“Site”) located at 2229 Main Street in Concord, Middlesex County, Massachusetts with Textron Inc., Whittaker Corporation, United States Army, and United States Department of Energy. The settlement requires payment of $4,115,000 in reimbursement of Past Response Costs. The settlement also requires performance of a non-time critical removal action and payment of all Future Response Costs. The settlement includes covenants pursuant to Sections 106 and 107(a) of CERCLA, 42 U.S.C. 9606 and 9607(a). For thirty (30) days following the date of publication of this notice, the Agency will receive written comments relating to the settlement for recovery of response costs (Section XV of the proposed settlement). The Agency will consider all comments received and may modify or withdraw its consent to this cost recovery settlement if comments received disclose facts or considerations which indicate that the settlement is inappropriate, improper, or inadequate. The Agency's response to any comments received will be available for public inspection at the Concord Free Public Library, 129 Main St., Concord, MA 01742 and at U.S. EPA Region 1, 5 Post Office Square, Suite 100, Boston, MA 02109-3912. Show citation box
The proposed settlement is available for public inspection at U.S. EPA Region 1, OSRR Records and Information Center, 5 Post Office Square, Suite 100, Mailcode LIB01-2, Boston, MA 02109-3912, by appointment, (617) 918-1440. Comments should reference the Nuclear Metals, Inc. Superfund Site, Concord, MA and U.S. EPA Region 1 Docket No. CERCLA-01-2011-004, and should be addressed to Audrey Zucker, U.S. EPA Region 1, 5 Post Office Square, Suite 100, Mailcode OES04-2, Boston, MA 02109-3912. Show citation box
A copy of the proposed settlement agreement can also be obtained from Heather Cote, U.S. EPA Region 1, 5 Post Office Square, Suite 100, Mailcode OES04-4, Boston, MA 02109-3912. Additional information on the Nuclear Metals, Inc. Superfund Site and the index to the administrative record for the non-time critical removal action can be found at http://www.epa.gov/region1/superfund/sites/nmi . Show citation box
Dated: March 31, 2011.
Rich Cavagnero,
Acting Director, Office of Site Remediation & Restoration,U.S. EPA, Region 1.
[FR Doc. 2011-16934 Filed 7-5-11; 8:45 am]
Leo Motors improves zinc air fuel cell
7 July 2011
Leo Motors, Inc. has further developed its Zinc Air Fuel Cell (ZAFC) Generator with additional innovations which it believes can enhance the efficiency of and reduce the size and weight of the ZAFC generator. Leo had displayed two electric trucks equipped with the ZAFC system as a range-extender at the EV Korea 2010 Expo. ( Earlier post .)
The refuelable ZAFC oxidizes zinc pellets, generating the power to recharge the Li-ion polymer battery pack. Leo has developed a fuel distribution system for the even distribution of the zinc pellets into the stack. Leo also developed a mechanism to halt power generation when the battery is fully charged, and for collection of the zinc oxide sludge from the stack.
Leo has developed a new type of zinc ball by adding aluminum and magnesium. Leo believes the new balls react to the air and electrolyte better than existing balls, and should generate electricity more efficiently and effectively.
Leo also developed an engineering plastic which reduces the size and weight of the generator, and a new circulator. The circulator enhances the contact between zinc balls and electrolyte. Electrolyte density sensor and electrolyte injector make the new ZAFC Generator use less electrolyte, which makes up more than 60% of the generator's size and weight.
Leo has applied for patents for the new ZAFC technologies.
China and other foreign interests have been significant beneficiaries of stimulus money through the Environmental Protection Agency, to the tune of some $27 million, since the law passed in February 2009.
Congressional investigators with the House Energy and Commerce Committee found that the EPA engaged in practices such as giving a $718,000 grant to the China State Environment Protection Administration to help it comply with the Stockholm and Long Range Transport of Air Pollutants Convention among others.
The EPA also gave a $150,000 grant to Interpol, the international police organization made famous in countless old movies, in “support of a climate-change project which will ensure that markets operate properly, and that fraud is detected promptly with regard to carbon trading.”
But a 5-year, $1.5 million project known as “ Breath Easy Jakarta ”, which intends to help implement the city of Jakarta, Indonesia implement air-pollution prevention has raised the ire of House Republicans led by Energy and Commerce Committee Chairman Fred Upton.
The EPA announced the “Breathe Jakarta” program in February 2010 at a meeting between EPA Assistant Administrator Michelle DePass and the governor of Jakarta, and the administration has already pledged an initial investment of $250,000, according to an EPA request for proposal from earlier this year.
“What kind of message are we sending to out of work families when the Obama administration's response to soaring unemployment and the looming debt ceiling is ‘Breathe Easy, Jakarta,'” Upton told The Daily Caller in an emailed statement. “The days of the EPA acting as a global ATM for the United Nations and foreign governments must come to an end. Our top priority should be helping put folks back to work here in America rather than sending millions overseas to subsidize international companies.”
The United Nations also benefited from the millions in EPA grants, and it's entities received at least two separate grants. According to the Energy and Commerce Committee, the United Nations Environment Programme received approximately $1.2 million to support a “global initiative promoting cleaner fuels and vehicles in developing and transitioning countries.”
While the World Health Organization received a $469,300 grant to “link together existing institutions and personnel to work on shared goals including sound environmental management.”
“It's not surprising that the stimulus did nothing to create jobs in this country because it was funding the Obama environmental agenda overseas,” said Mattie Corrao, executive director of the Center for Fiscal Accountability. “This all comes on the heels of the president saying he has two major regrets, and one of them wasn't the stimulus plan that we have yet to recover from.
“If you look at every indicator that is coming down the pike, every indicator is down.”
According to Corrao, the EPA stimulus grants are a stark example of what the rest of the stimulus was about irresponsible spending.
“What does one expect the Obama administration to do, but to spend money abroad to combat global warming?” asked Judicial Watch President Tom Fitton. “The idea that the stimulus program was about jobs as a big lie used to sell the program, and it's about giving government more money to spend, increasing their budgets, and that's all we've gotten out of it.”
Energy and Commerce Committee Republicans allege that the EPA has been less than transparent in disclosing its grants, and that not all of them have made it on to the agency's website.
Upton has cosigned a letter to EPA Administrator Lisa Jackson together with Reps. Cliff Stearns, R-Fla., chairman of the oversight and investigations subcommittee; Ed Whitfield, R-Ky., chairman of the energy and power subcommittee; and John Shimkus, chairman of the Environment and Economy Subcommittee, demanding answers about why the grants were made.
Longtime EPA critic, Oklahoma Sen. James Inhofe, the ranking member of the Senate Energy and Public Works Committee, told TheDC these grants confirm his long-held contention about earmarks.
“These are bureaucratic earmarks, and these people are not accountable to anyone,” Inhofe said. “That's what our conservative Republicans were too cowardly to admit in talking about this and in telling the public the truth.
“What we're doing is transferring congressional appropriations to bureaucratic earmarks,” Inhofe continued. “That's why Obama pulled all of the strings to get congressional Republicans to stop all of the congressional earmarks.”
What does it mean to "hate the rule of law"? I've used the phrase often, and I've explained it, but we're due for a recap. Time magazine subscribers may wish to pay special attention.
To hate the rule of law doesn't mean to hate the law. Someone can love the law, but hate the rule of it. The rule of law means an obligation to follow the law, whether you like what it says or not. Many lawyers love the law, because it's a puzzle to be solved in their favor, to twist it into an argument backing their preferred case: they cannot stand the idea of just following what the law says. They hate the rule of law.
Shred the Constitution
In the last week we've seen a perfect example of hatred of the rule of law from Richard Stengel, editor-in-chief of Time magazine. Stengel wrote the cover story to Time's recent issue, called " One Document, Under Siege " under the cover of the U.S. Constitution being shredded, with the caption "Does it Still Matter?" In the piece, Stengel does his best to retell the story of the Constitution in such a way that backs up his essential premise, which is perhaps best summed up as: the Constitution has absolutely no meaning outside of what the Supreme Court says it means.
He claimed one of the most obviously false and malicious statements ever written about the Constitution, writing, "If the Constitution was intended to limit the federal government, it sure doesn't say so," despite the fact that the Tenth Amendment does explicitly say so: all powers not delegated to the federal government, by the Constitution, are reserved to the states and the people, respectively. That is nothing but a limitation on federal power. Stengel dishonestly doesn't even mention the Tenth Amendment.
James Madison, famously, said much on the subject, even saying that the Tenth Amendment was superfluous, but that adding it could do no harm. He said in Federalist 45 that the federal government's powers under the Constitution were "few and defined," contrasting to the states' powers as "numerous and indefinite." He said on another occasion that throwing open any matter to federal legislation "would subvert the very foundations, and transmute the very nature of the limited government established by the people of America."
Stengel goes on to imply Article I, Section 8 grants unlimited power through the "necessary and proper" clause, and he even quotes it. But despite quoting it, he somehow misses the part where the "necessary and proper" powers are explicitly linked to "carrying into execution the foregoing powers," that is, the enumerated ones. The Constitution doesn't grant the power to Congress to do anything at all the Congress deems "necessary and proper," it has to relate to one of the other, enumerated, powers.
Again, Madison thought that by specifically drawing up what the federal government could do, this sufficiently implied the federal government could do nothing else . Stengel, however, flips this on its head, implying that because it lists off so many powers, this implies that there are no limits. He never stops to ask: if the government is unlimited, then why explicitly grant specific powers, and add to that any additional powers "necessary and proper" for those specific powers? Why not just write, "the government can do as it wishes," or just not mention powers at all?
And this is, of course, why Madison consented to including the Tenth Amendment in the Bill of Rights, because people like Stengel would so badly misinterpret the document, thinking that the federal government can basically do whatever it wishes, which means that "the Government is no longer a limited one, possessing enumerated powers, but an indefinite one, subject to particular exceptions."
But because Stengel doesn't believe in the Constitution at all, it really doesn't make a difference what Madison wrote, or where he wrote it. Stengel literally ignores the explicit text of the Constitution when it doesn't suit his designs. Let that be a lesson to us.
Federal Power is Whatever We Decide at the Time
And I don't exaggerate: Stengel really believes the Constitution has no meaning, at least, not outside of the Supreme Court. He denies Justice Felix Frankfurter's assertion that "the ultimate touchstone of constitutionality is the Constitution itself and not what we have said about it," saying on This Week : "[Something is] unconstitutional if the Supreme Court decides it's unconstitutional." That's it. There's literally no other way to know. We certainly can't read the Constitution to know. George Will pressed, and asked, "Does Congress have the constitutional power to require obese people to sign up for Weight Watchers?" Stengel replied, "I don't know the answer to that."
Fellow panelist, Georgetown professor Michael Eric Dyson, said he does know the answer: "If they decide that they will, they will have the power to do so."
These people are everywhere, in the media, in the government, and they simply do not believe in the existence of, or government obligation to secure and respect, our rights. In fact, Will might have been the only one of the five on the panel to disagree with Stengel.
In the greatest contemporary example of federal powers, Stengel called the notion that government can't mandate the purchase of health insurance "kind of silly," saying that, well, it crosses state boundaries, so it's justified (just how he justifies using the text of the Constitution to defend a law that hasn't been before the Supreme Court, when he believes only the Supreme Court decides constitutionality, is unknown).
Stengel added, "the government can ask you to do things," to which Will interjected, "It's not asking us, it's mandating." Stengel persisted, "It asks us to pay our taxes. It asks us to register for the draft. It asks us to buy car insurance if we want to drive our car around."
Stengel is here, too, being deceptive: the 16th Amendment explicitly grants the power to mandate that we pay income tax, and Article I, Section 8 explicitly grants the power to collect some other taxes. Following this model, where is a similar section of the Constitution that allows it to force us to buy insurance? And car insurance is not mandated at all: we don't have to drive on the public roads, and many people do not have car insurance. To follow this model, we'd only have to require purchase of insurance from people who were going to use public health facilities. And many people -- including myself -- believe the military draft is entirely unconstitutional, for much the same reason that the health insurance mandate is.
Stengel was falling all over his own arguments, and nowhere was this more clear than when he compared the Constitution to a blueprint for a house: "It doesn't tell you what color curtains to have or whether to have it two stories or three stories." You see, we can make all our own decision that aren't in the blueprint, right down to the number of stories in the house! The problem is, of course, that house blueprints -- like the Constitution -- have far more requirements in them than Stengel wants us to believe.
Yes, the Constitution is very much like a blueprint: there's a whole bunch of specifics you have to follow. You have to keep the home within certain guidelines, you have to include certain features, and you cannot change any of the requirements without approval. Within that blueprint, there's significant room for discretion, but you can't go over the property boundary, you can't dig too deep, you can't build too high, and you have to have a certain number of toilets. If you go outside of those requirements, you will get slapped down. The blueprint is clear and, except through the agreed upon amendment process, immutable.
So yes, that is just like the Constitution.
Amend or Pretend?
Now, these statements by these people should scare you, if it's new to you. But it shouldn't be new to you. There's a huge number of people -- and as Will has pointed out, it's been a battle for a hundred years now -- who simply believe the Constitution doesn't matter, as Stengel believes. It's a document that has no meaning outside of the Supreme Court, and the Court is, of course, free to interpret it however it wishes. According to these people, we literally have no rule of law, but only rule of men.
Dyson was the panel's defender of one of the oldest assaults on the Constitution: that it must remain flexible so that, for example, blacks could have rights. He -- a black man himself -- even expressed the notion that, "Were it not for some vibrant reinterpretation of that document and appealing to its living legacy, none of us could be here. I wouldn't be here talking to you, not as an equal, at least."
Ignoring Dyson's incredible statement that only a court's interpretation of a written document can foster significant change toward equality, Will asked, "do you amend the Constitution by the casual weak interpretation of it, or do you candidly, when you want to change the structure of the government, change it by the amendment process they provided?" Dyson beagn to respond, but moderator Christiane Amanpour jumped in with, "We're going to discuss that after a break." They never did, unfortunately. Perhaps Dyson kicked her under the table during said break.
But I see no "vibrant reinterpretation." I see the passage of amendments that mandate equal rights for Dyson and everyone else, with or without his pigmentation. I do see decades of the courts ignoring those amendments, but it is nearly impossible to argue that our current interpretations are somehow not directly in line with the original intent of them. I defy Dyson, or anyone else, to tell me how "no State shall ... deny to any person within its jurisdiction the equal protection of the laws" does not mean that on state shall be allowed to deny to any person the equal protection of the laws.
What's really startling is that the reason the 14th Amendment was not interpreted to protect the rights of black people for so many years is because of the rule of men: the Court was -- through racism and fear -- unwilling to interpret the amended Constitution as it was written and intended, to protect the rights of black people the same as white people. Dyson is literally arguing for a system that prevented black people from getting their rights far earlier than they actually did: the rule of men.
Rule of Men Recognizes No Rights
It barely needs stating, to my mind, but I'm obviously wrong, because people like Stengel are all around, so I'll point it out clearly: if only the Supreme Court decides constitutionality, then the government does not recognize any rights at all. We may claim rights, and fictionalize government recognizing them, but if the Court can choose on a whim to recognize them or not, then they aren't rights at all: they are merely privileges it wants to grant us at the time it rules, which it may rescind at its pleasure. If Stengel is right, then Jefferson and Madison are wrong: our government does not exist to secure our rights, and is not limited. Even the Constitution's Preamble itself is wrong, as Stengel's argument is that we have no liberty, and therefore the Constitution cannot exist to secure the blessings of liberty.
The main purpose of the Constitution was summed up in Federalist 10 by James Madison. He remarked on the problem of "faction," which is "a number of citizens ... who are united and actuated by some common impulse of passion, or of interest, adversed to the rights of other citizens, or to the permanent and aggregate interests of the community," and warned that "when a majority is included in a faction, the form of popular government ... enables it to sacrifice to its ruling passion or interest both the public good and the rights of other citizens." He said "the great object to which our inquiries are directed" was "to secure the public good and private rights against the danger of such a faction, and at the same time to preserve the spirit and the form of popular government."
The whole point was to protect us from majorities taking our rights. And the rule-of-law haters like Dyson and Stengel and a hundred years of progressives before them, want to push us directly into that model, where the Constitution literally doesn't matter. It's just something to be molded into whatever we wish it to mean at the time, such that it protects no rights whatsoever, provides no guarantees of any kind, and ends the cause of true justice.
Summation
I could go on and on, and pick apart the statements from Stengel and Dyson, each one, slowly and brutally. But it'd be fruitless; there's so much there and I have so little time. Instead, I'll just leave with one of the most brilliant statements on the Constitution you'll ever hear on Sunday morning talk, from George Will:
... the framers of the Constitution wanted to strengthen the federal government, but they knew that government is a. necessary, and b. inherently dangerous. And therefore, in the act of creating a more competent federal government, they sought to limit it.
James Madison, the architect in the definitive commentary on the Constitution, the Federalist Papers, specifically in Federalist 45, said, the powers delegated to the federal government by the proposed Constitution are few and defined. That's either true or it's not. ...
It's one thing to say it's open to interpretation, which it obviously is. It's very open-textured language. ... I mean, when you say unreasonable searches and seizures, what's reasonable? We argue about that. But to say that the Constitution is a living, evolving document ... is almost oxymoronic. A Constitution is supposed to freeze things. It is an anti-evolutionary device as Justice Scalia has said. It is intended to put certain things beyond the reach of transient majorities. That's the language of Justice Jackson in a famous case.
The point of the Constitution is that majorities are dangerous, and we have to protect against them. Hence, when Oliver Wendell Holmes said, if my fellow citizens want to go to hell, I'll help them, because that's my job, he was saying the Constitution exists to enable majorities. That's exactly wrong.
Posted by pudge at July 06, 2011 12:44 PM | Email This Comments 1. "The natural progress of things is for liberty to yield, and government to gain ground."
"In proportion as you give the State power to do things for you, you give it power to do things to you; and the State invariably makes as little as it can of the one power, and as much as it can of the other."
Both by Thomas Jefferson. Government and its lackeys have been able to twist the argument as you elegantly point out: it's not about what Government cannot do, but about what it can do. The concept of limited Government has become one of limited individual rights.
Posted by: Shanghai Dan on July 6, 2011 03:19 PM 2. This display of statist propaganda confirms that Time Magazine is best used as a fish wrapper or a fire starter. Posted by: KDS on July 6, 2011 03:24 PM 3. Pudge, as usual, takes quotes out of context and confuses disagreement with his personal extremist libertarian philosophy (a disagreement shared by the vast majority of Americans) with "hatred" of the "rule of law".
A quick read of the article addresses all of pudge's rants. No serious author, including Stengel, equates saying the constitution is living and evolving with saying we can ignore it. There is, of course, plenty of debate over what words like "commerce among the states" mean in the context of a changing world, so we turn to the Supreme Court to state the interpretation we will collectively accept, as a practical matter if not in belief. While in theory the Supreme Court could try to ignore the Constitution, most people realize you need an umpire to have a game, and the Supreme Court is the best umpire we got. And, of course, ultimately the system would collapse (perhaps violently) if enough people lost respect for their government's legitimacy.
Nothing new here. Move on.
Posted by: Bruce on July 6, 2011 05:10 PM 4. Bruce: Pudge, as usual, takes quotes out of context ...
Bruce, as usual, is lying. If you could back that claim up, you would, and we all know it, Bruce.
... and confuses disagreement with his personal extremist libertarian philosophy (a disagreement shared by the vast majority of Americans) with "hatred" of the "rule of law".
Shrug. If could rebut my arguments, you would. You didn't even attempt it. It's funny, though, that you consider James Madison, George Will, the virtual whole of the Tea Party, the majority of the Republican Party, and a huge number of independents as followers of "extremist libertarian philosophy."
You're simply wrong that a "vast majority" of Americans hate the rule of law (as I define it, and as it clearly applies to Stengel and Dyson, not to mention Justice Stephen Breyer and others). There's no evidence of this. There is evidence, of course, that they support views that I believe violate the rule of law, but you're assuming they know that it violates the rule of law. Most people, when you sit them down and point out what the law actually says and how it came to be, are willing to switch their views, or to believe that we should change the law.
This is precisely why Stengel lied in his Time article, when he said the Constitution doesn't limit the powers of the federal government. He knows that the text and history of the Constitution are against him, so he has to try to deceive his readers into believing that wanting the government to do whatever it believes is in the "general welfare" is not illegal, even though it often clearly is.
A quick read of the article addresses all of pudge's rants.
Such as? Oh, right, you can't give a single example. Funny that.
No serious author, including Stengel, equates saying the constitution is living and evolving with saying we can ignore it.
Except he actually claims it , as I demonstrated, and you didn't rebut. He doesn't say it directly, of course, but he says the Constitution doesn't limit the federal government, so therefore we can ignore the parts where it does; and he says that the Supreme Court determines constitutionality, so therefore, literally, the Constitution doesn't matter.
To say this doesn't lead to "we can ignore the Constitution" is nonsense.
There is, of course, plenty of debate over what words like "commerce among the states" mean in the context of a changing world, so we turn to the Supreme Court to state the interpretation we will collectively accept, as a practical matter if not in belief.
Of course there is debate over what "commerce among the states" means. But Stengel literally said the Constitution puts NO LIMITS on the federal government; so, to him, it literally DOES NOT MATTER what "commerce among the states" means at all, because if Congress does it, it's therefore constitutional. Stengel's argument necessarily leads to this conclusion, and Dyson said it explicitly.
And, of course, there is no rational argument anywhere that the power to REGULATE commerce implies a power to FORCE PARTICULAR commerce. That's just bullshit, and everyone knows it.
While in theory the Supreme Court could try to ignore the Constitution, most people realize you need an umpire to have a game, and the Supreme Court is the best umpire we got.
Sure, but as every baseball fan knows, umpires sometimes get things wrong. Stengel, however, believes the Supreme Court is definitionally NEVER wrong.
And, of course, ultimately the system would collapse (perhaps violently) if enough people lost respect for their government's legitimacy.
That is where the left is pushing us. They don't want us to lose all faith in government, of course, but their actions are pushing us down that path just the same.
As I clearly demonstrated, and you spent no time even attempting to rebut, these people literally and explicitly believe the rule of law is a bad thing: they want to be ruled by men, not law. That is what "hatred of the rule of law" means. You complain about my terminology, but, again, you don't even attempt to demonstrate that these people want to be ruled by the law, rather than men. Granted, it would be a hard case to make, what with Stengel explicitly stating that men get to make all the rules, regardless of the Constitution, if they so choose.
Stengel, again, lies to our faces about what the Constitution literally and explicitly says in order to convince us that his view has some intellectual legitimacy. It does not.
And you don't even believe it, either, else you'd actually make an argument against what I wrote instead of just pretending that I didn't make, and back up, any points.
You're not fooling anyone, Bruce.
Posted by: pudge on July 6, 2011 05:31 PM 5. The following sums up the plight of leftists who push their agenda on SP and other media sources. They are not fooling anyone, see below with the following example...
(Hat tip: John @ Powerline.com)
LIBERALS: WRONG AGAIN. DO THEY CARE?
It is a phenomenon we see over and over again: a liberal will make a wild accusation or engage in defamatory speculation about a political opponent. The accusation will then be taken up by left-wingers across the internet and, if it looks promising, it will be repeated in far-left newspapers like the New York Times. Liberals everywhere will eat it up and elaborate on it. Then, in due course, it will be proved entirely baseless.
What happens next? Do liberal web sites, columnists and reporters retract their fictitious claims and apologize? Hardly ever. By the time the truth comes out, they have moved on to some new libel or conspiracy theory. The truth remains a stranger to most of the readers who rely on such dishonest sources for information.
A case in point happened in February, in connection with the Left's hysterical attacks on Governor Scott Walker's administration in Wisconsin. A popular theme on the Left was that the Koch brothers, Charles and David, were somehow behind Walker's desire (and that of the Republican legislature) to balance Wisconsin's budget. Some lefty-I'm not sure who came up with it first-seized on an obscure provision in the Governor's budget proposal to suggest that the whole essence of the budget was a "payoff" to the Kochs' company, Koch Enterprises. Here is how the theory went on the Daily Kos:
1) Koch Brothers get their puppet Governor Walker in power
2) Governor Walker gins up a crisis
3) Democrats and Progressives take the bait and counter-protest on collective bargaining
4) Governor Walker will compromise on collective bargaining if the rest of the budget is passed as is
5) Bill passes, with trojan horse give-a-way to the Koch Brothers nested in
6) Koch Brothers will buy Wisconsin state-owned power plants for pennies on the dollar in closed unsolicitated [sic] bids for which there will be no oversight
7) Koch Brothers get the best vertical monopoly in a generation
Posted by: KDS on July 6, 2011 07:27 PM 6. Excellent piece, pudge! It incorporates much of what I have been trying to get across to folks for years. If people, especially those that are not particularly political, would read the Constitution--I mean really read it--and apply the context of the situation and times in which it was written to their reading, they would never vote for another "liberal"/Democrat/neo-fascist again. Posted by: Geoff Morse on July 6, 2011 09:42 PM 7. Excellent analysis. I would submit that there are two factors working against our constitutional republic:
1) The tendency for a government to take as much power as possible, until it becomes a tyranny; and
2)Human nature, which is intrinsically lazy and does not like to do for itself what it can get someone else to do for it.
Government is more than happy to oblige... for a price. This is why it was said that eternal freedom requires eternal vigilance. Not only against our government, but against ourselves.
Posted by: ERNurse on July 7, 2011 12:05 AM 8. Pudge,
I've been reading your blogs for a few years. I think this is some of your best work. Please continue.
Central and Southern California community groups file a federal lawsuit to force action on a 17-year-old complaint to the EPA about toxic waste dumps. By Ashlie Rodriguez, Los Angeles Times
July 7, 2011
Central and Southern California community groups filed a complaint about toxic waste dumps with the Environmental Protection Agency 17 years ago and never received a response. Tired of waiting, they have filed a federal lawsuit.
Kettleman City, Buttonwillow and rural areas of Imperial County are home to the only toxic waste dumps in the state. Grassroots community groups say that locating the dumps only in low-income and predominantly Latino areas violates Title VI of the 1964 Civil Rights Act, which prohibits any recipient of federal money from discriminating on the basis of race or national origin.
EPA Administrator Lisa Jackson and the Obama administration "have failed to deliver on their promise to protect the civil rights of America's low-income and communities of color who suffer environmental injustice," said Maricela Mares Alatorre, a member of El Pueblo Para el Aire y Agua Limpio of Kettleman City, one of the community groups involved in the suit. "Despite her claims that environmental justice is one of her top priorities, her agency's conduct and record on civil rights is pathetic, embarrassing, and against the law."
El Pueblo, along with Padres Hacia una Vida Mejor of Buttonwillow, are asking a judge to order the EPA to act on the complaint, which was filed in 1994 against the California Department of Toxic Substances Control, which issues permits for toxic waste dumps. The community groups say the department, which receives federal funding, must stop the "pattern and practice of racially discriminatory permitting and enforcement of toxic waste laws," said Brent Newell of the Center on Race, Poverty & the Environment and the lead attorney for the groups.
Deborah O. Raphael, director of the Department of Toxic Substances Control, did not respond to the lawsuit's allegations but said the department is "committed to taking a careful look at ways to improve our permitting process, giving consideration to the concerns raised in the complaint."
Newell said the discriminatory practices began in 1985, after the California Waste Management Board (now CalRecycle) hired a Los Angeles consulting firm, Cerrell Associates, to help identify potential sites for toxic waste facilities. Communities least likely to mount opposition to such sites, according to Cerrell's study, were rural; were made up of poor residents who work in farming or ranching; had little education or involvement in social issues; and were receptive to promises of economic benefits. Since it was written, the Cerrell report has been at the center of controversy over alleged "targeting" based on race and class.
Under the Civil Rights Act, Newell said, the federally funded Department of Toxic Substances Control should ignore the Cerrell report and issue permits more equitably. He added that a group doesn't need to show an agency intentionally discriminated, just that its actions have a disparate impact and adverse effect on a community.
"The disparate and adverse effect is plain and obvious because all these facilities are in low-income, Latino communities," Newell said.
Jennifer Andrews, a spokeswoman for Waste Management Inc., which owns the Kettleman City dump, said allegations of discrimination are "entirely untrue."
"We looked for areas that were geographically suited for landfill use," Andrews said. She said the Kettleman City land was a designated landfill site before Waste Management bought it.
The EPA said in a statement that it could not comment on pending litigation.
New EPA regulations could cast a pall on Obama's campaign
The California complaint is one of 32 pending since the 1990s. Over the years, only one complaint has been resolved, and nearly 100 others were dismissed.
WASHINGTON — In the next weeks and months, Lisa Jackson, the Environmental Protection Agency administrator, is scheduled to establish regulations on smog, mercury, carbon dioxide, mining waste and vehicle emissions that will affect every corner of the economy.
She is working under intense pressure from opponents in Congress, from powerful industries, from impatient environmentalists and from the Supreme Court, which just affirmed the agency's duty to address global warming emissions, a project that carries profound economic implications.
The new rules will roll out just as President Barack Obama's re-election campaign is getting under way, with a White House highly sensitive to the probability of political damage from a flood of government mandates that will strike particularly hard at the manufacturing sector in states crucial to the 2012 election. No other Cabinet officer is in as lonely or uncomfortable a position as Jackson, who has been left, as one adviser put it, behind enemy lines with only science, the law and a small band of loyal lieutenants to support her.
Jackson describes the job as draining but says there are certain principles she will not compromise, including rapid and vigorous enforcement of some of the most far-reaching health-related rules ever considered by the agency.
“The only thing worse than no EPA is an EPA that exists and doesn't do its job — it becomes just a placebo,” she said last week. “We are doing our job.”
Although she has not met with the president privately since February, Jackson said she was confident that he would back her on the tough decisions she had to make. “All of us are mindful that he has a lot of things to do,” she said.
Attacks on her and her agency have become a central part of the GOP playbook, but she said she wanted no sympathy.
“Any EPA director sits at the intersection of some very important issues — air pollution, clean water and whether businesses can survive,” said Jackson, a chemical engineer trained at Tulane and Princeton universities. “No one knows this job unless they've sat in the seat.”
Jackson said she intended to go forward with new, tougher air- and water-quality rules, including those that address climate change, despite congressional efforts to override her authority and even a White House initiative to weed out overly burdensome regulations.
The first of these new rules is expected to be announced Thursday, imposing tighter restrictions on soot and smog emissions from coal-burning power plants in 31 states east of the Rockies. The regulation is expected to lead to the closing of several older plants and will require the installation of scrubbers at many of those that remain in operation.
One former EPA administrator, William Reilly, who served under the first President George Bush, is a sometime adviser to Jackson. He said she was taking fire from all sides.
“She's got three very large challenges,” Reilly said. “First, she's got to administer the Clean Air Act to try to accomplish something for which it was never designed, the control of carbon dioxide, a difficult regulatory challenge in itself. Second, she has to do that and cope with all these other regulations which are not of her making and have come to land on her desk in a climate of intense political polarization and economic distress.
“And the third challenge,” he continued, “is that the White House — any White House — doesn't want to hear an awful lot from the EPA. It's not an agency that ever makes friends for a president. In the Cabinet room, many of the secretaries got along with each other, but they all had an argument with me. It's the nature of the job.”
Even those most supportive of Jackson say that the agency has taken on a virtually unmanageable set of challenges across the range of policy, from mountaintop-removal coal mining to wetlands preservation to the control of toxic emissions from power plants and refineries. She is also in charge of federal restoration efforts in the Gulf of Mexico after the BP oil spill.
“Have they bitten off more than they can chew?” asked Jason Grumet, president of the Bipartisan Policy Center, who has close ties to the White House and the agency. “Yes. But that's a testament to their aspirations, and now reality is setting in.” The reality being that there is often political fallout whenever difficult policy decisions are made and that the timing of Jackson's rule setting could not be more inopportune for the president.
“It's always the case that there are conflicts between good policy and good politics, and the EPA is often the crucible of those challenges,” Grumet said.
One of the toughest pending decisions, he said, concerns a standard for permissible levels of smog-causing compounds including ozone. The agency's scientific advisory panel has recommended setting a high bar that could put hundreds of counties across the country out of compliance with the law, forcing them to take action to reduce emissions, even though the pollutants may be generated beyond their jurisdiction.
Scattered across Santa Clara County — home during our tenure at Stanford — are 23 parcels of land so polluted that they've been targeted for government intervention.These “Superfund sites,”numbering more than 1,250 across the United States and its territories,are contaminated by heavy metals, organic solvents and petroleum residues. Some are at risk of contaminating the drinking water of hundreds of thousands of people; others already have. Some sites are sopolluted that their very soil must be scraped away; others will not befit for human habitation for generations.read more
The House Appropriations Committee today released the fiscal year 2012 Commerce , Justice, Science Appropriations bill, which will be considered in subcommittee tomorrow. The bill funds the Department of Commerce, the Department of Justice, the National Aeronautics and Space Administration (NASA), the National Science Foundation (NSF), and other related agencies.
In total, the legislation contains $50.2 billion in funding. This is a reduction of $3.1 billion or 6% below last year's level, and $7.4 billion or 13% below the President's request for these programs. This total is also 3% below the pre-stimulus, pre-bailout level of 2008.
"This legislation includes funding for some of the most critical aspects of government - the protection of our people here at home, the competiveness of our businesses and industries, and the scientific research that will help America continue to lead the world in innovation. However, given this time of fiscal crisis, it is also important that Congress make tough decisions to cut programs where necessary to give priority to programs with broad national reach that have the most benefit to the American people," House Appropriations Chairman Hal Rogers said.
"I believe the subcommittee mark achieves significant spending reduction goals while at the same time preserving core priorities. Within a tight allocation, we have focused resources on the most critical areas - fighting crime and terrorism; and boosting U.S. competitiveness through investments in science. Despite the difficult choices that were made, this legislation includes a number of positive initiatives to create jobs by promoting economic growth and innovation here at home," Commerce-Justice-Science Appropriations Subcommittee Chairman Frank Wolf said.
Department of Commerce - The bill contains $7.1 billion for the Commerce Department - a reduction of $464 million or 6% below last year's level, and $1.7 billion or 19% below the President's request. This includes funding for the following agencies:
International Trade Administration (ITA) - The ITA administers and enforces U.S. trade laws, and protects U.S. interests and competitiveness abroad. The ITA is funded at $460 million in the legislation -- $10 million above last year's level. The additional funds will support high priority National Export Initiatives to boost U.S. exports and help grow the economy.
Patent and Trademark Office (PTO) - The bill provides $2.7 billion for the PTO - the full requested level. This funding is equal to the estimated amount of fees to be collected by the PTO during fiscal year 2012, and is an increase of $588 million or 28% above last year's level. The bill also includes language that allows PTO to keep and use any fees in excess of the estimated collected amount, subject to standard Congressional approval, and includes language requiring PTO to report on efforts to reduce the patent application backlog
National Institute of Standards and Technology (NIST) - NIST is funded at $701 million in the bill, which is $49 million below last year's level and $300 million below the President's request. Within this total, important core research activities to help advance U.S. competitiveness, innovation, and economic growth are increased by $10 million above last year's level. In addition, funding for the Manufacturing Extension Partnership program - which provides training and technical assistance to U.S. manufacturers - is maintained at last year's level of $128 million.
National Oceanic and Atmospheric Administration (NOAA) - The legislation contains $4.5 billion for NOAA, which is a cut of $103 million below last year's level and $1 billion below the President's request. Within this total, National Weather Service operations and systems are fully funded at the requested level, and an increase of $430 million is included for the Joint Polar Satellite System weather satellite program to ensure the continuation of important weather data collection.
Census Bureau - The Census Bureau is funded at $855 million in the bill, which is a cut of $294 million - or 25% - below last year's level.
Economic Development Administration (EDA) - The bill includes $258 million in funding for the EDA - $26 million below last year's level and $67 million below the President's request. This includes $5 million in grant funding to attract U.S. jobs that have gone to other countries back into the U.S., and $5 million in loan guarantees to help advance innovative manufacturing technologies.
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Department of Justice (DOJ) - The bill funds DOJ at $26 billion, a decrease of $1 billion below last year's level and $2.4 billion below the President's request. This funding level will provide for the continuation of critical legal and security activities at DOJ, while trimming spending in lower priority and non-essential areas. For example, administrative activities at DOJ are funded at $72 million - a cut of $46 million below last year and $62 million below the President's request.
Federal Bureau of Investigation (FBI) - The bill includes $8.1 billion for the FBI - an increase of $149 million above last year's level and $13 million below the request. This includes increases for national security programs, investigations of computer attacks, Weapons of Mass Destruction (WMD) programs, analyst training, and violent crime and gang reduction programs.
Drug Enforcement Administration (DEA) - The DEA is funded at $2.3 billion in the legislation, an increase of $30 million over last year's level and $56 million below the President's request. This includes an increase of $31 million for regulatory and enforcement efforts to combat prescription drug abuse, $15 million (by transfer) to assist states and communities with hazardous material clean-up at meth lab sites, and $10 million for temporary facilities for 100 additional staff at the Southern Border related to counternarcotics efforts.
Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) - The legislation contains $1.1 billion for the ATF, the same funding level as last year and $35 million below the request. The bill also includes long standing funding prohibitions related to firearms privacy and records.
U.S. Marshals Service - The Marshals Service is funded at $1.1 billion in the bill - the same funding level as last year. Within this funding, the legislation gives priority to sex offender apprehension and judicial protection in the Southwest Border region.
Federal Prison System - The Bureau of Prisons is funded at $6.4 billion, which is an increase of $30 million over last year's level and $412 million below the request. This funding will help activate completed prisons to ensure safe and adequate facilities to house the nation's criminal population. The bill also prohibits funding for construction or acquisition of a prison within the U.S. to house Guantanamo detainees.
Grant Programs - The bill includes a total of $1.7 billion for various grant programs, which is $1.1 billion below last year's level and $1.3 billion below the request. In this time of fiscal crisis, the Committee made the tough choice to fund only the highest priority programs with national reach and broad purposes. Within the total, Violence Against Women programs and Missing and Exploited Children programs are funded at last year's levels. Byrne Justice Assistance Grants are funded at $357 million - a decrease of $73 million below last year.
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National Aeronautics and Space Administration (NASA) - NASA is funded at $16.8 billion in the bill, which is $1.6 billion below last year's level and $1.9 billion below the President's request. This funding includes:
- $3.65 billion for Space Exploration which is $152 million below last year. This includes funding above the request for NASA to meet Congressionally mandated program deadlines for the newly authorized crew vehicle and launch system.
- $4.1 billion for Space Operations which is $1.4 billion below last year's level. The legislation will continue the closeout of the Space Shuttle program for a savings of $1 billion.
- $4.5 billion for NASA Science programs, which is $431 million below last year's level. The bill also terminates funding for the James Webb Space Telescope, which is billions of dollars over budget and plagued by poor management.
National Science Foundation (NSF) - The legislation funds NSF at $6.9 billion, the same as last year's level and $907 million below the President's request. Within this funding, NSF's core research is increased by $43 million to enhance basic research that is critical to innovation and U.S. economic competitiveness.
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Other Provisions - The bill includes several general provisions, including:
A prohibition on the transfer or release of Guantanamo detainees into the U.S. Rescissions of over $1 billion in unobligated balances left over from previous years A prohibition on NASA or the Office of Science and Technology Policy from engaging in bilateral activities with China unless authorized by Congress.
Wednesday, July 06, 2011
House appropriations bill would overturn Arizona mining ban
The U.S. House Appropriations Committee released a draft of the FY 2012 Appropriations Act for the Department of the Interior, Environment, and Related Agencies today that would overturn the ban on exploration and mining in northern Arizona [ right, BLM map of withdrawn lands ], that was imposed by Interior Secretary Ken Salazar last month:
ARIZONA MINERAL WITHDRAWAL PROHIBITION SEC. 445.
Notwithstanding any other provision of law, none of the approximately 1,010,776 acres of public lands and National Forest System lands described in Public Land Order No. 7773; Emergency Withdrawal of Public and National Forest System Lands, Coconino and Mohave Counties; AZ (76 Fed. Reg. 37826) may be withdrawn from location and entry under the General Mining Law of 1872 (30 U.S.C. 22 et seq.) except as expressly authorized by a law enacted after the date of enactment of this Act that refers to this section.
Senator James Inhofe, who last October landed on a closed runway that had vehicles and people on it for which he received a remedial training order from the FAA, Wednesday introduced a bill to protect pilots from "agency overreach." Inhofe's remedial training was supplied by an instructor who he'd once taught. The bill would address items ranging from medical certification issues to Inhofe's concern that he waited four months to get voice recordings related to his episode. "I was never fully appreciative," said Inhofe, "of the feeling of desperation until it happened to me." Recordings of the manager whose workers were on the runway as Inhofe landed suggest they also might have felt desperation, but of a different sort. EAA and AOPA are among supporters of Inhofe's bill. Click through for details.
AOPA president, Craig Fuller said his group, "applauds Senator Inhofe" for introducing the legislation and "giving the aviation community much greater certainty about the process of enforcing the regulations by which we fly." Fuller added, "we look forward to working with Senator Inhofe" in support of the bill. EAA president Rod Hightower said, "This bill addresses several inequalities that hamper the ability of aviators to even obtain the necessary information to defend themselves." EAA added its gratitude to the 24 Senators who stood in support of the bill. Said Hightower, EAA "is strongly supportive" of the bill "and urges its members to rally behind the measure."
The bill requires relevant evidence to be supplied to a pilot 30 ays prior to a decision to proceed with an enforcement action. It clarifies "statutory deference" as it relates to NTSB reviews of FAA actions. It "allows for federal district court review of appeals from the FAA, at the election of the appellant." It requires the FAA to improve how NOTAMs are provided with a goal of ensuring that relevant information reaches pilots. It makes privately operated flight service station communications accessible through freedom of information requests. And it requires a review of the FAA's medical certification process with an aim to cut down on misinterpretations that could lead to allegations of falsification.
Digital Rights, Privacy, Social Media and The Cloud: Cocktail for a Meltdown? 4 Ways Not to Drink the Kool-Aid
In the halls of Congress today is circulating an anti-piracy bill which would, according to Wendy Davis at Online Media Daily, "make it difficult for online advertisers and credit card companies to continue doing business on the web".
The bill is aimed at preventing access to the Internet by companies that are "dedicated to infringement" activities--and of course Hollywood is for it, as Hollywood seems to have gotten behind anything and everything that in their perception keeps people from paying fifteen dollars to go see a movie. If the bill passes, card companies would have to stop working with those targeted companies. Even Google and Bing would have to stop showing those suspect companies in their search results.
But who gets to define which sites, and where does this ultimately play out? Are tweets no longer retweetable? Are pictures not to be forwarded? Are sites that link to content on other sites suddenly forced not to? And what kind of entrepreneur will build a service knowing the government could order it banished without adequate recourse?
Lesson: The fate of digital rights needs to play out in the business world, not take the form of a government edict that scares everyone out of using the Internet. The Protect IP Act (S.968) seems like a good place to take a stand (against).
Another case that made this writer's hair stand on end was where a bank had unwittingly sent sensitive PII to a certain gmail account (an amazing thing to begin with!); then sent an email to the gmail account that they must destroy the contents, but the gmail accountholder didn't reply and the bank got hold of Google and the gmail account got shut down. In the meantime, it turns out the accountholder had deleted the messages unopened but could not reply to the bank's later messages because the bank had forced Google to shut down the account to which they were sending correspondence. And to the bank, this person was probably considered unresponsive.
Lesson: If someone powerful enough sends you email you never wanted, and then they feel sorry about it, they can have your gmail account shut down (this is at least partly because Google is free and you have no Service Level Agreement with them).
We have seen the awesome power of Twitter to destroy careers. Witness Weiner and a host of other congress people who really seemed to believe they had control over what they wrote. But again, using a free service like Twitter, you are literally shouting to the heavens whatever you tweet. Twitter owns all your content. Twitter can shut you down or other Twitter users can make you into a meme so fast you will wish you never tweeted. This is because many people cannot distinguish the difference between the Internet, which we all pay for in various ways, and the services that glom onto the Internet to create private playgrounds with advertising. As owners of the playground, they can take your toys and send you home with sand in your eyes.
Lesson: Don't ever write anything on Twitter if you would not be perfectly comfortable with your tweet being read by everyone you know now and have ever known or might like to know at some point in the future--which is kind of a tall order when you think about it. Oh, and Twitter can deep-six you if they don't like you. Does this in any way resemble free speech? No, but that is not Twitter's fault. They never said they were a public service, did they?
Finally, these are Cloud-y days. "All will soon be in the cloud", we hear in a disembodied, kind of echoey, spooky voice. Why? Because the cloud enables developers to cobble together bits and pieces of functionality developed by others and out of these server-based functions, create a new offering. It's as if every developer were a hot-rodder with almost unlimited access to the Auto-Zone parts bin. They will be coming up with some wicked digital hot-rods--and also their share of clunkers. But what do you give up in the cloud? Visibility for one. For individuals, this is not such a big thing perhaps--individuals probably had little visibility into the nature of their digital assets (or lack) to start with.
But for companies, leaving so much computing in the virtual spaces not controlled by them, and in an environment where control is giving way to acceptance, the dangers are not terribly hard to imagine. For companies, losing visibility also means losing control. What happens in a shutdown of that cloud service? What happens when critical pieces of the cloud solutions you have bought into are somehow yanked or changed without your developers having known, or having known, were able to correct for?
Lesson: Play your best cards closer to the vest. Big companies have always wanted to hold on to their data, and now is not the time to farm it out quite so extensively as the Cloud champions would--for their own business-purposes--prefer. I am not here to say "don't use the cloud". I am saying that companies with service offerings using cloud solutions need to support claims of reliability with a redoubled effort--and be prepared to make it right when the cloud shed a little rain on the parade.
So are we headed for a digital meltdown? Not soon. But it does seem like our technology is well ahead of our ability to understand it and to bring it under harness. I would not be at all surprised to learn of a signal event--some massive failure or violation--that rises above the routine and becomes a meme in itself; and at that point such questions that continue to swirl around rights, privacy, the limits of social media and the supporting cloud itself, will become louder and potentially may dampen use of these enabling technologies in a meaningful way. I would like to see that not happen. And perhaps some better general understanding of the issues (witness my small attempt above) can keep people from steering too close to the digital guardrail.
Moving beyond the fundamentals of regulatory compliance requires that professional environmental managers keep abreast of changing regulations, emerging interpretations, interfaces between regulatory programs, and government initiatives.
The RCRA/CERCLA Advanced Topics ™ course complements our Mastering RCRA ™ course, moving beyond the fundamentals of waste classification and waste management to focus more in depth on key compliance challenges.
This course is perfect for environmental professionals taking on a management or leadership role in organizational RCRA/CERCLA compliance programs, compliance consultants, environmental compliance specialists, and others who need a full understanding of these requirements. Students are provided with bound handouts that serve as a valuable desk reference.
Oklahoma's U.S. senators argue for balanced-budget amendment
Oklahoma Sen. Jim Inhofe, R-Tulsa, says he won't vote for a debt ceiling deal without a constitutional amendment. Sen. Tom Coburn, R-Muskogee, didn't make the same ultimatum but said an amendment would be helpful.
BY CHRIS CASTEEL ccasteel@opubco.com 0 Published: July 7, 2011
WASHINGTON — Oklahoma 's senators said Wednesday that a balanced-budget amendment to the U.S. Constitution would be the best way to enforce fiscal discipline in Washington.
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In a speech on the Senate floor, Sen. Jim Inhofe, R-Tulsa , said he wouldn't vote for an agreement to raise the nation's debt ceiling without a balanced-budget amendment. Sen. Tom Coburn, R-Muskogee , didn't make the same ultimatum but said an amendment would be helpful.
The senators' comments came on a day of speeches in the Senate about the nation's $14.3 trillion in accumulated debt and how lawmakers and President Barack Obama should reduce the amount added to the debt.
The president and Congress have to strike a deal within weeks to raise the debt ceiling, the nation's borrowing authority, to avoid potential default on government debt and severe cuts in spending.
“The balanced budget amendment is the only reform that will put our nation on true path to permanent fiscal stability,” Inhofe said, adding that he wouldn't vote for a debt-limit deal that didn't cut spending in the short term, cap spending in the medium term and include a balanced-budget amendment.
Coburn, who blamed Congress for creating “a monster” government full of duplicative programs, acknowledged that it would take five to seven years for a balanced-budget amendment to clear Congress and be ratified by states. But he said an amendment would force discipline in Congress.
“We have all sorts of reasons why we shouldn't have a balanced-budget amendment,” he said. “But not one of them makes sense. Not one of them fits with common sense.”
Some Democratic senators argued that lawmakers didn't need a constitutional amendment to balance the budget.
Sen. John McCain, R-Arizona , said he supported a balanced-budget amendment, but he urged lawmakers not to make passage of an amendment a condition for supporting a debt ceiling deal. McCain said there wasn't enough support in the Senate to pass one but that lawmakers had to solve the immediate problem.
This partnership will reconnect urban communities, particularly those that are overburdened or economically distressed, with their waterways by improving coordination among federal agencies and collaborating with community-led revitalization efforts to improve our Nation's water systems and promote their economic, environmental and social benefits. Specifically, the Urban Waters Federal Partnership will:
Break down federal program silos to promote more efficient and effective use of federal resources through better coordination and targeting of federal investments.
Recognize and build on local efforts and leadership, by engaging and serving community partners.
Work with local officials and effective community-based organizations to leverage area resources and stimulate local economies to create local jobs.
Learn from early and visible victories to fuel long-term action.
This partnership aligns with President Obama's America's Great Outdoors initiative, which calls on agencies to support innovative community efforts to provide safe, healthy and accessible outdoor spaces.
Conserving our natural heritage is an objective shared by all Americans. The Urban Waters partnership will not only give thousands of urban Americans access to the great outdoors in a way they haven't had before, it also creates partnerships between the federal government and American communities on conservation issues. At USDA , the Forest Service and Natural Resources Conservation Service are working in thousands of communities across the country to conserve and revitalize forests and watersheds, many impacting urban areas. At the same time, we're connecting people with our land and resources by promoting outdoor activities and healthier lifestyles. —Secretary Tom Vilsack, United States Department of Agriculture
What Communities are Doing
Communities across the country are coming together
Well-established stakeholder groups toward protection and continuing to revitalize community activities around the Middle Rio Grande Watershed Basin.
Achievements and Accomplishments
Administrator Jackson, EPA staff, and children representing the Blue River Watershed Association at a cleanup in 2009 marking the National Day of Service in Kansas City.
Listening session on urban waters included in 2010 Environmental Justice Showcase
Partnered in 2009 with the University of Missouri - Kansas City to create www.kcwaters.org , a water quality data hosting and sharing site
Broadened monitoring of urban-core streams and lakes in 2010 and added real-time bacteria telemetry monitoring sites throughout the metro.
Right now in cities across the nation, urban waters are being threatened like never before. New and different environmental challenges are appearing everywhere from the Anacostia River in Washington, D.C. to the waterfront in Dubuque, Iowa. The range of challenges we face are going to require both traditional and innovative strategies — and broad partnerships to address the local issues in our communities, and the national issues we all share.
- Lisa P. Jackson, EPA Administrator
In Urban Environments, Small Impacts Add Up
Cities share one key characteristic: they're full of people, buildings and businesses. Because everyone shares the same relative space, air and water, environmental impacts are concentrated in smaller areas, including waterways.
Urban waters take on large amounts of pollution from a variety of sources, including industrial discharges, mobile sources (e.g., cars/trucks), residential/commercial wastewater, trash and polluted stormwater runoff from urban landscapes. As urban populations often share centralized water sources, this pollution creates public and environmental health hazards like lowered drinking water quality and water bodies that aren't safe to swim in.
Also, urban patterns of development often make waterways inaccessible to adjacent neighborhoods. Lack of access limits a community's ability to reap the benefits of living so close to the water, whether through recreation, fishing or access to real estate.
But if maintained properly, urban waters can also yield positive impacts for populations in both urban and upstream communities:
Public spaces along rivers and lakes offer residents opportunities for community gatherings , recreation and environmental education . Boating, swimming, fishing, picnics — places and activities families and neighborhoods can enjoy together.
In addition, increased access to waterways can spur the creation of new jobs and the growth of local businesses , whether cleaning up polluted or abandoned properties, opening businesses along the waterfront or working on water protection efforts like green infrastructure projects.
Why Should This Matter To You?
Water quality touches all of us every day: through the water we drink from the tap, shower and swim in, and use to water our plants and crops with. Your local water utility serves a key role – treating wastewater and drinking water – but ensuring access to clean waters and the land surrounding them starts with you, your neighbors and local community organizations.
Working hand-in-hand, community groups and local residents can help set up water quality monitoring, volunteer cleanup efforts and coalitions to speak out about water quality concerns to community leaders. By pooling efforts, your voice and hard work make the difference to your local waterways and to the community that depends on them.
Where Do We Go From Here?
First, get better informed about urban water issues affecting your community:
As part of the Urban Waters Movement, EPA is seeking to help communities — especially underserved communities — as they work to access, improve and benefit from their urban waters and the surrounding land. Whether as part of a cleanup leading to waterfront development or putting monitoring in place to ensure safe drinking water , community groups across the country have taken the initiative, engaging volunteers, community organizations, and local and state government to make their waters safe for many uses.
By more effectively leveraging existing programs, EPA aims to support projects and build partnerships with a variety of federal, state, tribal, and local partners that foster increased connection, understanding, and stewardship of local waterways.
By promoting public access to urban waters, EPA will help communities become active participants in restoration and protection. By linking water to other community priorities, EPA will help to sustain that involvement.
We will work with people in communities, especially those in urban watersheds, to improve the health of the water and the land while addressing community priorities. Together, we will use the visibility urban settings offer to showcase innovative approaches that can be adapted in surrounding areas.
EPA, working with our federal partners and community stakeholders, will:
align our and other federal government programs and investments in these communities;
expand partnerships;
build local capacity; and
find innovative ways to communicate the environmental and economic potential of safe and clean urban waters.
A Virtual Community Center
Here's where you come in. EPA created this website as a hub for communities and organizations working to improve water quality and access to gather and share information. We've assembled a number of tools to help you spread the word about the work your community or organization is engaged in to help urban waters, or to learn from the work of others.
Whether you're sharing a story of a successful cleanup effort, strategies for organizing volunteers, tactics for spreading your message, or just getting ideas, we welcome your input and insights.
As part of the Urban Waters Movement, EPA is seeking to help communities — especially underserved communities — as they work to access, improve and benefit from their urban waters and the surrounding land. Whether as part of a cleanup leading to waterfront development or putting monitoring in place to ensure safe drinking water , community groups across the country have taken the initiative, engaging volunteers, community organizations, and local and state government to make their waters safe for many uses.
By more effectively leveraging existing programs, EPA aims to support projects and build partnerships with a variety of federal, state, tribal, and local partners that foster increased connection, understanding, and stewardship of local waterways.
By promoting public access to urban waters, EPA will help communities become active participants in restoration and protection. By linking water to other community priorities, EPA will help to sustain that involvement.
We will work with people in communities, especially those in urban watersheds, to improve the health of the water and the land while addressing community priorities. Together, we will use the visibility urban settings offer to showcase innovative approaches that can be adapted in surrounding areas.
EPA, working with our federal partners and community stakeholders, will:
align our and other federal government programs and investments in these communities;
expand partnerships;
build local capacity; and
find innovative ways to communicate the environmental and economic potential of safe and clean urban waters.
A Virtual Community Center
Here's where you come in. EPA created this website as a hub for communities and organizations working to improve water quality and access to gather and share information. We've assembled a number of tools to help you spread the word about the work your community or organization is engaged in to help urban waters, or to learn from the work of others.
Whether you're sharing a story of a successful cleanup effort, strategies for organizing volunteers, tactics for spreading your message, or just getting ideas, we welcome your input and insights.
Through our partnership, we will revitalize urban waters and the communities that surround them, transforming overlooked assets into treasured centerpieces and drivers of urban revival.
THE NEED IS CLEAR
Many of our nation's urban rivers, streams, lakes, forests and wetlands are polluted, degraded or inaccessible. The surrounding communities often are not reaping the environmental, economic and social benefits that living near a water body can provide.
Research demonstrates that a clean, safe, accessible, urban environment – including urban forests, gardens, parks, lakes, aquifers, and rivers – is directly linked to improved public health, stronger local economies, and lower crime rates.
We believe a deeper connection to local water bodies can bring a new cycle of community hope and energy that will lead to healthier urban waters, improved public health, strengthened local businesses, and new jobs, as well as expanded educational, recreational, housing, and social opportunities.
OUR MISSION
The “Urban Waters Federal Partnership” will help urban and metropolitan areas, particularly those that are under-served or economically distressed, connect with their waterways and work to improve them. This federal partnership will put communities first. We will work to break down government program silos and to ensure that our collective efforts will reverse past neglect, energize existing programs, and engage new partners. We will listen to, engage and serve the communities where we work, ensuring they are full partners in restoring and protecting the water that surrounds them. We will establish strong partnerships with effective community-based organizations and local government officials to make the most effective use of economic incentives and other beneficial actions. With the right set of federal, state, and local tools and the local commitment of political will, the partnership will leverage existing neighborhood assets. These actions will be geared to promote early and visible victories to fuel long-term action. Success will advance the missions of our partnership, our agencies, and the federal government as a whole.
GUIDING PRINCIPLES
To guide our work, we will:
• Promote clean urban waters. We must enhance the value and health of urban waters, recognizing their rich history, spiritual value, natural beauty, and economic and recreational potential, as well as their role in basic services, such as water supplies. We know clean water is a foundation for sustainable communities and healthy ecosystems, and that the watershed is the fundamental planning unit for water quality protection. That means the Partnership will work with urban communities to connect them to upstream areas including rural parts of the watersheds, where the large majority of our country's water originates. In addition to addressing the direct challenges presented by physically, chemically and biologically degraded urban waters, we will engage these communities in the broader process of enhancing the value and quality of water resources supplying urban areas using approaches to protect, manage and restore the lands that surround those waters.
• Reconnect people to their waterways. Many communities do not have access to their urban waterways. This cuts them off from a valuable community asset. These assets can be used to spur commercial, recreational (such as parks, green spaces and cultural centers) and educational opportunities. Indeed, the reconnection of distressed communities to their waterways can act as a catalyst for greater economic revitalization and growth as well as improvement in resident well-being.
• Water conservation. We shall strive to meet urban water needs in a sustainable manner by increasing the efficiency of water use. The Partnership therefore will strive to educate and work with urban communities to conserve this precious resource. We will increase efforts to address infrastructure needs, especially in underserved urban areas where modernization of aging and inefficient infrastructure can lead to significant water savings. We believe conserving water and using it wisely will be fundamental to our success.
• Use urban water systems as a way to promote economic revitalization and prosperity. Healthy and accessible urban waters enhance any area's economic competitiveness. In urban communities, water-related environmental improvements will be integrated with other community priorities, such as revitalizing local businesses, creating jobs, and improving access to job training. Community revitalization through the promotion of clean urban waters must minimize displacement of existing residents, expand opportunities for current and new residents, and fully tap into the potential of the local and regional communities. To achieve these objectives when working locally, the Partnership will particularly focus on revitalizing communities that are, or have been, disproportionately impacted by pollution or economic burdens.
• Encourage community improvements through active partnerships. Strong multi-agency partnerships at the federal, state, local levels, and with the tribes, will integrate many of the services needed for community revitalization. Aligning federal policies and funding will break down traditional silos, remove barriers to collaboration, and increase the accountability and effectiveness to plan and act for future growth. These goals will also be achieved through innovative regional collaboration and approaches that connect policies and programs at every level of government and across multiple sectors.
• Be open and honest, and listening to the communities is the best way to engage them. We will work with urban populations, not act for them. This means, among other things, to recognize their values and seek to understand environmental issues through their eyes. We will work from the bottom up rather than taking a top down, one-size-fits-all approach.
• Focus on measuring results and evaluation will fuel future success. We need short-term improvements, but also an analytical view toward sustainable and systemic improvements we can measure using meaningful outcome measures. We will invest and focus our resources on what is working in targeted places and draw on the compounding effect of well-coordinated action. By evaluating conditions to design better solutions and monitoring progress to respond quickly when change is needed, we will learn what works to develop best practices.
June 24, 2011
Ninth Circuit Rejects CERCLA Citizen Suit Jurisdiction Over Pursuit of UAO Penalties
On June 1, 2011, the U.S. Court of Appeals for the Ninth Circuit upheld the dismissal of a citizen suit against a Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) responsible party seeking civil penalties for that responsible party's failure to comply with a unilateral administrative order. The decision, Pakootas v. Teck Cominco Metals, Ltd., is the latest iteration of the notable dispute regarding the contamination of the Upper Columbia River in Washington from an industrial facility in Canada. In upholding the lower court's dismissal, the Ninth Circuit delivered the first federal appellate ruling on whether CERCLA Section 113(h) bars citizen suits seeking penalties for failing to comply with a CERCLA Section 106 unilateral administrative order. Upholding the logic of the CERCLA enforcement litigation scheme, the court held that such suits are barred.
Case Background
The defendant in this case, Teck Cominco Metals, Ltd. ("Teck Cominco"), owns a smelter in Trail, British Columbia. Historically, slag from the smelter was disposed of in the Columbia River at a site ten miles north of the international border with Washington. Due to the downstream migration of pollution into Washington, EPA designated the Upper Columbia River eligible for inclusion on the National Priorities List in 2003. When attempts to reach a voluntary cleanup agreement between EPA and Teck Cominco failed, EPA issued a unilateral administrative order requiring Teck Cominco to conduct a remedial investigation and feasibility study, and subsequently remediate the site. However, Teck Cominco did not comply with the order, and EPA did not attempt to enforce it.
Two citizen plaintiffs sued Teck Cominco under CERCLA's citizen suit provision, 42 U.S.C. § 9659, to enforce the EPA order. The citizen plaintiffs sought the following relief: 1) a declaration that Teck Cominco was in violation of EPA's order; 2) an injunction compelling compliance with the order; 3) penalties for failure to comply with the order; and 4) attorneys' fees and costs. 1 Teck Cominco moved to dismiss for lack of subject matter and personal jurisdiction and for failure to state a claim upon which relief could be granted. One of Teck Cominco's notable arguments was that the citizen suit was an extraterritorial application of CERCLA. The district court denied the motion to dismiss, but certified its order to the Ninth Circuit for interlocutory appeal. On appeal ( Pakootas I ), 2 the Ninth Circuit determined that the citizen suit was not an extraterritorial application of CERCLA, and upheld the district court's denial of the motion to dismiss.
While the appeal in Pakootas I was pending, EPA and Teck Cominco entered into a settlement agreement that the two parties termed a "contractual agreement," which obligated the company to perform the remediation at the Upper Columbia River site. EPA agreed not to sue the company for non-compliance with the unilateral administrative order if Teck Cominco fulfilled its obligations under the agreement. In return, Teck Cominco consented to jurisdiction in federal district court in the event EPA brought a suit to enforce the contractual agreement and seek penalties for noncompliance with the unilateral administrative order. Upon execution of the agreement, EPA withdrew the unilateral administrative order, declining to collect penalties for the 892 days that Teck Cominco failed to comply with the order.
Meanwhile, Teck Cominco unsuccessfully petitioned the Supreme Court for certiorari from the Ninth Circuit's decision in Pakootas I that the lawsuit was not an extraterritorial application of CERCLA. Following the denial of certiorari, the citizen plaintiffs amended their complaint to seek only civil penalties for noncompliance with the unilateral administrative order and for attorneys' fees and costs. Teck Cominco moved to dismiss the amended complaint. The district court granted the motion and dismissed the citizen plaintiffs' claims for lack of subject matter jurisdiction because the lawsuit was barred by CERCLA's pre-enforcement review provision, Section 113(h). 3 The citizen plaintiffs appealed, and the case again went up to the Ninth Circuit.
Pakootas II
In a two part holding, the Ninth Circuit determined that a citizen suit seeking penalties for noncompliance with a unilateral administrative order was barred by CERCLA's pre-enforcement review provision, Section 113(h). 4 The court first determined that Section 113(h) is a limitation on jurisdiction and not solely a limitation on the timing of judicial review. Next, the court determined that the plaintiffs' action for penalties was barred by Section 113(h) because (1) the lawsuit qualified as a "challenge" under Section 113(h), and (2) a citizen suit did not qualify for the penalty exception to Section 113(h). 5
CERCLA Section 113(h) is Jurisdictional
Plaintiff Pakootas argued that CERCLA Section 113(h) only governs the timing of when an action challenging removal or remedial actions or cleanup orders can be brought, and that it is not a limitation on jurisdiction. The Ninth Circuit relied on a 2006 Supreme Court opinion, Arbaugh v. Y & H Corp.,6 and its progeny to dispose of this argument. Arbaugh established a common-sense, bright-line test for determining whether a statutory provision should be considered jurisdictional: if the statute clearly states that a threshold limitation is jurisdictional, it should be considered a jurisdictional limitation; if not, it should be considered a non-jurisdictional limitation. As Section 113(h) plainly states at the outset that "[n]o Federal court shall have jurisdiction. . .", the Ninth Circuit concluded that under Arbaugh's bright-line test, Section 113(h) clearly qualified as a jurisdictional limitation.
CERCLA Section 113(h) Barred the Citizen Suit
After determining that CERCLA Section 113(h) qualified as a jurisdictional bar, the court considered whether Pakootas' citizen suit claim for penalties was precluded by Section 113(h). The first part of this determination involved deciding whether the plaintiff's case qualified as a "challenge" to a removal or remedial action or order, as that is the class of lawsuits that Section 113(h) precludes. Pakootas took the position that the claims did not challenge any aspects of the remedial action being carried out under the contractual agreement, but rather that they only sought to recover penalties for previous failure to comply with the unilateral administrative order.
Plaintiffs' Suit Was a "Challenge" Under CERCLA Section 113(h)
The court noted that Congress's purpose in creating the Section 113(h) prohibition on pre-enforcement review was to prevent lawsuits that would interfere with the expeditious cleanup of contaminated sites. The Court acknowledged that the plaintiffs did not seek to modify any of the requirements of the cleanup, but still determined that the lawsuit was a challenge under Section 113(h). First, the court pointed out that the lawsuit was a challenge because it interfered with the contractual agreement to perform the cleanup that EPA and Teck Cominco entered into. The court reasoned that one of the bargaining chips in the contractual agreement was the fact the EPA waived the 892 days of penalties under the unilateral administrative order on the condition that Teck Cominco satisfactorily conduct that remediation. Thus, if Teck Cominco does not perform its obligations under the contractual agreement, EPA's leverage to force Teck Cominco to take action is the threat of bringing an action to recover the 892 days of penalties. EPA would be deprived of this "hammer" ¿ as the court termed the threat of penalty recovery ¿ if citizen plaintiffs were allowed to bring an action to recover the penalties.
Additionally, the court highlighted the risk of Teck Cominco deciding to undertake an "efficient breach" of the contractual agreement if they paid the penalties owed to the citizen plaintiffs and subsequently decided it was in their best economic interests to shirk their cleanup obligations. In sum, the citizen lawsuit disturbed EPA's ability to enforce the contractual agreement.
Further, if Teck Cominco were forced to pay a large penalty for its past noncompliance, the company's ability to fund the remainder of the cleanup effort could be in jeopardy. The court reasoned that Teck Cominco faced up to $24 million in penalties plus attorneys' fees if Pakootas prevailed in the case. Although the court did not consider Teck Cominco's ability to pay in the event it lost the lawsuit for penalties, the court reasoned that it was certainly possible that a judgment of that magnitude could interfere with a performing party's ability to pay for a cleanup. Thus, a suit of this nature conflicts with Congress's rationale behind the pre-enforcement review prohibition: ensuring the expeditious cleanup of contaminated sites.
Lastly, the court distinguished a prior Ninth Circuit CERCLA case7 that held that a lawsuit seeking access to cleanup-related documents was not a "challenge" under Section 113(h). The Ninth Circuit held that the ARCO court only held that a request for documents was not a challenge - it did not by inference stand for the proposition that only a lawsuit that sought to impose specific conditions for a cleanup qualified as a challenge under Section 113(h).
Plaintiffs' Suit Did Not Qualify for the Exceptions to CERCLA Section 113(h)
The citizen plaintiffs' second argument that the pre-enforcement bar did not apply was that their suit qualified for one of the enumerated exceptions to Section 113(h). Specifically, the citizen plaintiffs invoked Section 113(h)(2), which exempts actions "to enforce an order issued under section 9606 (a) of this title or to recover a penalty for violation of such order8" from the pre-enforcement bar. The citizen plaintiffs argued that they were seeking to recover penalties for violations of the withdrawn administrative order, and based on the plain language of the exception, the pre-enforcement bar did not apply to their action.
The court conducted a plain-language analysis of Section 113(h)(2) and concluded that although the plaintiffs were indeed seeking penalties in their suit, they were not seeking to recover penalties. The court reasoned that the penalties available under Section 106(a) are payable to EPA and the Superfund, not to citizen plaintiffs. Therefore, citizen plaintiffs cannot recover money that the statute does not entitle them to. The court squared this conclusion with the purpose of the pre-enforcement bar, which is to prevent interference with ongoing cleanups. The court reasoned that it was only logical for EPA to have this compliance-enforcing capability that can be wielded while a cleanup is still underway.
Lastly, the court applied the statutory construction rule of expressio unius (to include one thing implies the exclusion of the other) to bolster its conclusion that a citizen suit does not qualify for the Section 113(h)(2) exemption. The court pointed out that Section 113(h) already contains a citizen suit exception (at (h)(4)) that allows that citizens to bring suit alleging that a removal or remediation is in violation of any requirement of CERCLA.9 The court made the inference that since one of the five exemptions in Section 113(h) expressly calls for citizen suits, that impliedly the Section 113(h)(2) exemption does not apply to citizen suits.
Implications
Considering the volume of CERCLA litigation in the last thirty years, it is somewhat surprising that this issue has not already been decided by a court. That said, the affirmance of the CERCLA litigation scheme, which seeks to preserve EPA's ability to ensure and enforce prompt cleanups, helps bring further certainty to CERCLA responsible parties that deals struck with EPA are not easily disturbed by third party citizen plaintiffs. Further, the "contractual agreement" struck between Teck Cominco and EPA presents an interesting model for negotiations with EPA in the face of a Section 106 unilateral administrative order, in that it lifted the burdens of a Section 106 order while also preserving a "hammer" for EPA to ensure compliance with the subsequent remedial action agreement.
1 Both the Colville Reservation and the State of Washington intervened in the litigation seeking the same relief as the citizen plaintiffs as well as the anticipated costs of the CERCLA recovery and assessment and declaratory relief relating to the costs of natural resource damages assessment. The Reservation and the State's additional claims are still pending in the U.S. District Court for the Eastern District of Washington.
3 "No Federal court shall have jurisdiction under Federal law other than under section 1332 of title 28 (relating to diversity of citizenship jurisdiction) or under State law which is applicable or relevant and appropriate under section 9621 of this title (relating to cleanup standards) to review any challenges to removal or remedial action selected under section 9604 of this title, or to review any order issued under section 9606 (a) of this title[.]" 42 U.S.C. § 9613(h).
4 42 U.S.C. § 9613(h).
5 "No Federal court shall have jurisdiction under Federal law. . . in any action except one of the following . . . (2) An action to enforce an order issued under section 9606 (a) of this title or to recover a penalty for violation of such order[.]" 42 U.S.C. § 9613(h)(2).
6 546 U.S. 500 (2006).
7 ARCO Environmental Remediation, LLC v. Montana Dept. of Health and Envt'l Quality, 213 F.3d 1108 (9th Cir. 2000).
8 42 U.S.C. § 9613(h)(2).
9 42 U.S.C. § 9613(h)(4).
Overview
The Metals & Mining industry encompasses the extraction (mining) as well as the primary and secondary processing of metals and minerals such as aluminum, gold, precious metals, coal and steel. The industry is oligarchic in structure, with a few producers accounting for the lion's share of the output.
The largest segment of the global metals market is iron and steel followed by aluminum. The iron and steel segment comprises more than half the industry in terms of volume. This industry includes metal ore exploration and mining services, as well as iron and steel foundries for smelting, rolling, forging, spinning, recycling, stamping, polishing and plating of iron and steel products, such as pipes, tubes, wire, spring, rolls and bars.
The precious metal and mineral industry consists of companies engaged in the extraction and primary processing of gold, silver, platinum, diamond, semi-precious stones, uranium and other rare minerals and ores.
Historically, the automotive and construction markets have been the largest consumers of metals, accounting for more than 50% of total demand. Other metal consumers include energy, electrical equipment, agricultural, domestic and commercial equipment and industrial machinery. Large automakers such as General Motors Company (NYSE: GM - News ), Ford Motor Co. (NYSE: F - News ), Toyota Motor Corp (NYSE: TM - News ) and Honda Motor Co. Ltd (NYSE: HMC - News ) are large consumers of metals, especially steel and aluminum.
Overall Outlook
The global metal industry is cyclical, highly competitive and has historically been characterized by overcapacity (excess of supply over-demand). Metal producers are subject to cyclical fluctuations in London Metal Exchange prices, general economic conditions and end-use markets. Individual company profitability depends on volume and operating efficiency. Large producers with huge resources are able to discover and develop new deposits, thereby boosting reserves, while the smaller ones devote their attention to fewer mines.
Mergers and acquisitions (M&A) have historically been a critically important growth strategy for mining companies. The year 2009 experienced a lull in M&A activity under the impact of the global economic downturn, with a deal value almost half of 2008. The focus for M&A activity shifted from business growth to business survival, as companies looked to safeguard their teetering balance sheets rather than seeking expansion.
In 2010, fairly unpredictable financial markets dictated metals prices, despite strong underlying fundamentals. In addition, several notable mining accidents have made mine safety a major factor for the industry and regulators. Despite the volatility, gold prices rose 400% over the past ten years and made a record run in 2010, increasing 26% and hitting a high of $1,432 an ounce.
The year 2011 has been unstable for metals so far with double-digit gold sell-offs and rallies during the first quarter. However, investors remain cautiously optimistic regarding the sector. Many analysts predict metal prices will end the year with double-digit growth considering demand is still outstripping supply. Unrest in the Middle East is also driving metal prices. On the down side, the end of the Fed's QE2 program and overall atmosphere of greater focus on fiscal restraint may limit significant gains.
In an industry plagued with rising energy and raw material costs, increasing productivity and reducing costs are the keys to success. Given the cyclical nature of the metals industry, low-volume, and high-cost producers need to generate sufficient cash or ensure a strong borrowing position during market peaks to survive the market troughs.
Continuing consolidation supports the sector's ability to influence the price of input costs and companies can also obtain synergies and economies of scale through the operation of vertically integrated raw materials sources. Expansion in low-cost countries will ensure lower labor costs and also help tap their growth potential.
Geographically, the Asia-Pacific region -- in particular China and India -- is witnessing higher production and consumption of metals. Per capita consumption levels in both these countries are calibrating to U.S./European levels, which could, theoretically at least, double metal demand in the longer term. China is the world's largest consumer of metals and is expected to remain so.
Further, developed regions such as the US and Europe are showing signs of recovery, albeit at a moderate pace. Overall, we expect global metal demand to improve in the long term with the recovery of user industries.
Demand as well as production for industrial metals in Japan has been recently affected as factories have been shut in the aftermath of the country's earthquake and Tsunami. Japan is the biggest buyer of aluminum and the second largest buyer of copper ore. We, however, believe that metal demand will be boosted by the construction industry triggered by the country's reconstruction efforts.
Detailed Look into Metals
Steel
As the major shareholder (about 60%) of the metals market, the steel industry was severely bruised by the global economic downturn. However, according to the World Steel Association, world crude steel production in 2010 reached a record 1,414 million metric tons (mmt), an increase of 15% compared with 2009. All the major steel-producing countries and regions showed double-digit growth in 2010. In April 2011, the world crude steel production was 127 million metric tons (mmt), an increase of 5.0% from April 2010.
The U.S. produced 80.6 mmt of crude steel, 38.5% higher than 2009. Of the world's steel production, US's share increased to 5.7% from 4.7% in 2009, pushing the country to the third position in 2010 from fifth position in 2009.
The growth trend continued in 2011, with world crude steel production increasing 5.3% in January to 119 mmt from January 2010 levels. United States crude steel production rose smartly by 9.4% to 6.8 mmt compared with January 2010. The US produced 7.1 mmt of crude steel in April 2011, an increase of 2.1% year over year.
Reflecting on 2010 data, we see a sharp increase in revenues and shipments across most companies. Sales of ArcelorMittal (NYSE: MT - News ), the world's largest steel-producing company, increased 27.3% year over year to $22 billion in the first quarter of 2011. Steel shipments also increased to 22.0 million metric tons compared with 21.0 million metric tons in the year-ago quarter.
Similarly, sales for U.S. Steel Corp. (NYSE: X - News ) soared 24.8% to $4.9 billion and steel shipments went up to 5.8 million tons. Nucor Corporation (NYSE: NUE - News ) recorded a sales increase of 32% to reach $4.83 billion with shipments increasing 9%. Steel Dynamics Inc. (NasdaqGS: STLD - News ) reported a 29.6% increase in revenues to generate $2.01 billion with shipments rising 4% to 1.5 million tons.
The steel industry is emerging from the gloom of the global recession as is evident from the above figures. However, given its economic sensitivity, we expect global steel demand to improve only gradually, in line with the recovery in the user industries, especially automotive and residential construction.
Although steel prices have been stabilizing since the latter part of 2009, they remain significantly below the pre-crisis levels. We believe that a sustained recovery in steel prices remains uncertain in the backdrop of sluggish economic activity.
Currently, Steel Dynamics has a Zacks #4 Rank (Sell) for the short-term (1 to 3 months) while U.S. Steel holds a Zacks #3 Rank (Hold). ArcelorMittal currently retains a Zacks Rank #3 Rank (Hold). We maintain our Outperform recommendation in the long term for ArcelorMittal and U.S. Steel, while we maintain a long-term Neutral recommendation on Nucor.
Gold
As per the World Gold Council, gold prices rose for the tenth consecutive year in 2010, reflecting recovery in key sectors of demand and continued global economic uncertainty. In 2010, gold prices jumped 29%, reaching $1,405 per ounce as of the end of December.
During 2010, the price of gold rose to record levels on several occasions, trading as high as $1,432 per ounce. Gold's performance was strong and volatility remained low. The World Gold Council suggests that the increase was not only driven by inflationary forces but was also inflated as both the private and public sectors of India and China rushed into the gold market.
Gold demand went up 9% over 2009, showcasing a 10-year high of 3,912.2 tons, driven by the rise in jewelry demand, the revival of the Indian market and strong momentum in Chinese gold demand. Moreover, central banks became net purchasers of gold for the first time in 21 years, hiking the demand for the yellow metal.
Major demand came from India and China. India bought 746 tons, a 69% increase over 2009, and China bought 400 tons of gold jewelry. China bought 179.9 tons of gold in the form of bars and coin, a 70% increase over 2009.
Global gold demand in the first quarter of 2011 totaled 981.3 tons, up 11% year over year from 881.0 tons in the first quarter of 2010. This was largely attributable to the widespread rise in demand for bars and coins, supported by an improvement in jewelry demand in key markets.
The quarterly average gold price hit a new record of $1,386.27/oz (London PM Fix), its eighth consecutive year-over-year increase. Despite a period of price consolidation in the early part of the quarter, it climbed to record highs throughout March and has continued to achieve new highs in April and May.
Gold remained a coveted asset given its long-term supply and demand dynamics and influenced by macro-economic factors. Concerns regarding economic growth in developed countries made gold an attractive and safe investment option. The European sovereign debt crisis made European investors use gold as a currency hedge. Pressure on the US dollar against various currencies coupled with higher inflation expectations in many countries, including India and China, also pushed up gold prices.
The value and wealth preservation attributes of gold continue to attract investors and consumers. Jewelry and investment demand in non-Western markets continues to rebound while industrial demand has started to recover in response to an improvement in economic conditions. India, which alone consumes nearly 45%-50% of the world gold production, should drive demand for gold along with China. The Chinese gold demand is expected to double in 10 years.
Even though gold price dropped 7% in January this year, it again recorded a rise in February. We believe gold demand and prices will strengthen in 2011. As China and India continue to grow rapidly, their demand for gold will also rise in tandem.
Higher prices bode well for gold producers, which should benefit giants such as Barrick Gold Corporation (NYSE: ABX - News ), Agnico-Eagle (NYSE: AEM - News ) and Goldcorp Inc. (NYSE: GG - News ). However, gold producers like Newmont Mining Corporation (NYSE: NEM - News ) and Kinross Gold Corporation (NYSE: KGC - News ) suffer from lower ore grades that subdue production levels, increase mining costs and offset the benefits of rising gold prices.
Overall, the stock prices of gold producers are not expected to benefit much from this favorable commodity-price backdrop. This is reflected in our overall long-term neutral views on the stocks. As major economies continue to recover, investors' confidence will be restored to invest in stock markets, which could cause gold prices to fall. However this is not going to happen in the near future. We have a Zacks #3 Rank (Hold) on Barrick Gold, Agnico-Eagle, Goldcorp, Kinross Gold Corporation and Newmont Mining.
Aluminum
The aluminum industry is highly cyclical, relating to prices subject to worldwide supply and demand forces along with other influences. The global economic downturn had a historic, negative impact on the aluminum industry, leading to an unprecedented decline in LME-based aluminum prices, weak end markets, fall in demand, increased global inventories, and higher costs of borrowing and diminished credit availability. The economy has however recovered from the crisis of the economic downturn.
Alcoa Inc. (NYSE: AA - News ) is the world leader in the production and management of primary aluminum. In response to the global economic downturn, the company implemented a number of operational and financial actions to improve its cost structure and liquidity, including curtailing production, halting non-critical capital expenditures, accelerating new sourcing strategies for raw materials, divesting non-core assets, reducing global headcount, suspending its share repurchase program, reducing its quarterly common stock dividend and resorting to other liquidity enhancements.
In 2011, Alcoa plans to restart certain idled potlines at three smelters. These restarts are expected to increase Alcoa's aluminum production by 137 kmt during 2011 and by 204 kmt on an annual basis thereafter. Such measures are sure to meet anticipated growth in aluminum demand.
Alcoa expects demand for aluminum to grow 12% this year. China, India, Brazil and Russia are all expected to register double-digit increases in aluminum demand. Market conditions for aluminum products in all global markets are expected to improve, particularly in aerospace, automotive and industrial gas turbine.
On the cost side, however, energy prices and currency movements are expected to keep posting challenges. Overall, Alcoa believes that the long-term prospects for aluminum remain bright and envisions that global demand for aluminum will double by 2020.
Since the sudden decline from peak prices in mid-2008, aluminum prices have increased over the last 2 years. In 2010, global aluminum prices increased 13%. Alcoa increased its fiscal 2010 profit on the back of higher prices and continued strengthening in most end markets. Aluminum Corporation of China , or Chalco (NYSE: ACH - News ) swung back to profit in 2010 after posting a loss in 2009, attributable to increased global aluminum prices.
In the medium-to-long term, aluminum consumption will improve globally with improving automotive and packaging industries, one of the key consumer markets. Aluminum is widely used for packaging, beverage cans, food containers and foil products. The automobile market is also becoming increasingly aluminum intensive, benefiting from the recyclability and the light weight of the metal.
Further, the surge in copper price this year is triggering a switch among manufacturers to aluminum. Automobiles, air conditioners and industrial components manufacturers are now shifting toward aluminum, which is more economical.
We expect aluminum demand to increase in the long term, outstripping supply growth with the improving end-markets. China and India are undergoing rapid industrialization. Both these factors are positive for underlying aluminum demand. Leading aluminum producers such as Alcoa, Paramount Gold and Silver Corporation (AMEX: PZG - News ) and Aluminum Corporation of China should benefit from the improving demand outlook.
Currently, Alcoa holds a Zacks #3 Rank (Hold) supported by our long-term Neutral recommendation, while Paramount Gold and Silver has a Zacks #4 Rank (Sell).
Copper
Copper prices have shown a rising trend in 2010 benefiting copper producers like Freeport-McMoRan Copper & Gold Inc. (NYSE: FCX - News ) and Southern Copper Corporation (NYSE: SCCO - News ). Although copper demand was down 10% year over year in 2009, global copper demand has since been witnessing growth.
The Chinese demand for copper was still robust and imports of the metal were rebounding, which was supported by steady construction and infrastructure activity in the country. The improvement in copper prices would be supported by limited supply and increased demand from China.
Even though copper prices are at near all-time highs, the outlook for copper prices remains favorable. Not denying the volatility in prices that are bound to remain, we have a bullish stance on copper prices, in the long term. However, as discussed earlier, manufacturers might now resort to aluminum as a substitute.
Market conditions are expected to be positive for copper in the next couple of years due to higher consumption of the metal in the developing nations. The companies that have a high leverage to copper prices will benefit immensely from the potential demand for the metal in the developing markets.
We currently have a Zacks #3 Rank (Hold) and long-term Neutral recommendation on both Freeport and Southern Copper.
On December 14, 2010, President Obama signed an executive order establishing the White House Council for Community Solutions to engage a diverse group of prominent cross-sector leaders to:
Connect, convene and catalyze the best resources of the public, private, non-profit and philanthropic sectors in communities across the country
Identify and highlight solutions that work
Identify key attributes of effective cross-sector solutions from institutions working together on community problems
Catalyze resources to support effective community-based solutions
All across America, individuals and community groups are finding solutions to local problems. The White House Council will focus on developing ways to enlist more Americans and leaders across sectors to help catalyze change in communities and make progress on our nation's greatest challenges. With a near-term focus on connecting youth to education, employment, and ongoing civic participation, Council Members will work to fulfill a two-fold vision:
Every American community will have the knowledge and tools at hand to create successful local "collaboratives" that are designed to catalyze large-scale change and address their most pressing community challenges; and,
Every American community understands the urgency, has the necessary tools, and is building the process and capacity to move disconnected youth along critical pathways to education, employment, and ongoing civic participation.
Leslie Boissiere
Executive Director, White House Council for Community Solutions
Community discussion tools will be added periodically to encourage idea sharing. In addition, if you would like to send a comment or suggestion directly to the Council, please contact Leslie Boissiere at WhiteHouseCouncil@cns.gov .
White House Council for Community Solutions attn: Leslie Boissiere, Executive Director
Corporation for National and Community Service
1201 New York Avenue, NW
Washington, D.C. 20525 WhiteHouseCouncil@cns.gov www.nationalservice.gov
AALCO makes rich and varied contribution to jurisprudence
Keynote address delivered by External Affairs Minister Professor G. L. Peiris at the 50th anniversary session of the Asian-African Legal Consultative Organization (AALCO) in Colombo
Continued from yesterday
These are complementary rather than antagonistic concepts. Then again you propose to address, as my colleague Minister Rauff Hakeem said issues connected with migrant labour. The foreign exchange which Sri Lankan's sons and daughters earn for us in lands beyond the seas, the money that they remit to the national exchequer represents more than three billion, three thousand million US Dollars per year. It is one of the largest sources of foreign exchange earned by Sri Lanka and it is a major contributory factor to accelerated economic development.
Minister Prof G. L. Peiris
I think this is a very appropriate forum to address some of the issues connected with migrant labour. As they toil, as they render this unique assistance to the economy of Sri Lanka, there is obviously a reciprocal obligation which the government of Sri Lanka acknowledges in respect of these persons.
Migrant labour
My own Ministry, the External Affairs Ministry, is at this very moment concentrating on a variety of modalities which would enable Sri Lanka's Missions abroad to accept a series of direct responsibilities with regard to enforcement of the provisions that are contained in the agreements signed between people who work abroad and their employers, in order to ensure that there is no departure from the provisions that are agreed upon as an integral part of the contractual arrangement. We are also focusing on insurance. How do you refine and invigorate the mechanisms of insurance to ensure that these people have the full benefit of the protection of insurance when that is called for?
Women and children trafficking
I think you might also consider the need for more effective training before people are sent abroad in search of employment because that would significantly diminish the opportunities for abuse which we hear of far too often. This whole area of migrant labour is vitally important. About six weeks ago there was a seminar in Dhaka, Bangladesh which was called the Colombo Process.
That brought together representatives of countries from which these people go abroad to find employment and representatives of countries which receive them.
This resulted in a meeting of minds in this area, which proved to be exceedingly fruitful.
Another topic that you are addressing has to do with trafficking in women and children, a matter which is assuming increasing and distressing importance in many of our countries.
I think these are areas in which innovative legal concepts and approaches are necessary.
President Rajapaksa said in his inaugural remarks, that the law, the approaches of the law, legal values and the assumptions on which the law is based must be restructured in keeping with far-reaching changes that are taking place in the social fabric of many of our countries.
I think that the time has come to look at modalities like mandatory minimum sentences. The conventional approach of the criminal law has, of course, been to prescribe the maximum penalty and leave it to the discretion of the judge to decide what the appropriate penalty should be in the circumstances of specific cases. But it may well be that in the case of some of these grave crimes like trafficking in women and children, there should at the present time be mandatory minimum penalties which curtail the discretion that is available to judges.
Grave crimes
I think we also have to address in earnest some issues connected with shifting burdens. The conventional approach was founded upon principles such as the presumption of innocence, the privilege of silence, the privilege against compulsory self- incrimination, these are the pillars of the orthodox criminal law.
But in the age in which we live, having regard to the magnitude of some of the problems which have arisen in these areas, I think it is entirely proper to think of putting a limited burden on persons who are accused of grave crimes. These will be burdens, of course with the possibility of rebuttal. Some of these innovative changes in the law of evidence should also, I think, warrant the attention of the distinguished legal luminaries who are gathered here on this occasion.
Moral values
I would like to tell you that as far as the government of Sri Lanka is concerned, we will be addressing these issues in keeping with certain values which we believe to be sacrosanct. As Justice Owada said, each country has its own culture, Sri Lanka is known for a compassionate culture and a caring society. Take our law relating to family relationships, for example. Universally, the child can claim maintenance and support from the parent. But in Sri Lanka today as in some other Asian countries, we have evolved a principle of law in terms of which an indigent parent, who had looked after the child and spent all his savings on the child and now finds himself or herself destitute in their old age can assert not merely a moral but a legal obligation of support from the child. In a pioneering Sri Lankan case the Supreme Court held that, in these circumstances, the parent can go into court and compel the child to support the parent if the child has wilfully and persistently refused to do so.
The whole of our labour law is based on moral values. The employer is something like a paterfamilias in the Roman Law and we have avoided confrontational approaches in the development of our labour laws. The foundations of our labour law have much in common with the cultural underpinnings of the laws of Japan which were founded upon comparable, although not identical, premises. A compassionate and caring society is one of the cornerstones of the social policy which has permeated the evolution of Sri Lanka's legal system.
The second characteristic is a people oriented and people based approach to the development of our law. We have taken very seriously the need to protect the disadvantaged sections of the community. They must benefit fully from the mechanisms of the law. A poor person, an ignorant person, a person who is not able to assert his legal rights in the traditional way can invoke the jurisdiction of the Supreme Court by simply scribbling with a pencil on a postcard and sending that note to the Supreme Court. It is possible to dispense with procedural technicalities and refinements. This is the famous concept of epistolary jurisdiction, the origins of which are to be found in the celebrated judgments of the former Chief Justice of India, Shri P.N. Bhagwati.
Fundamental rights
This is a form of affirmative action. You bring your grievance, however poor, however weak, however impoverished you may be, to the attention of the highest court in the land and you can look forward to an effective and viable remedy. Of course I think you have also to consider the parameters or the limits of such jurisdiction. Judicial activism is fine, but it must also have its limits if you are to respect the principles relating to the separation of powers. When this jurisdiction was increasing by leaps and bounds in India, there was a famous case in which the Supreme Court of India was asked to rule that a monopoly in India, the Railway Authority, was charging an exorbitant sum for travel by train between Delhi and Allahabad.
Commercial disputes
The argument was that this was oppressive and the Supreme Court was invited to reduce the railway charges. The Supreme Court of India, declining jurisdiction, held that this is not a matter for them. This is a matter for the Executive. Institutionally, the Court was not equipped to deal with a matter of this nature. Therefore, they held that it was outside the domain of the judiciary and the proper organ of government must deal with the matter.
Fundamental rights are a very salutary jurisdiction, but the confines within which this should realistically be exercised, must I think engage the attention of jurists and judges.
Then again we must focus on the law's delays, because “justice delayed is justice denied.” In that connection another topic that you are addressing, namely commercial arbitration, is of great practical importance. We certainly have found in our country that when it comes to the resolution of commercial disputes, the adversarial postures which are typical of the criminal law, for example, are no longer appropriate and informal modes of dispute resolution such as conciliation, mediation and arbitration are far more suitable.
Then, finally, you are addressing matters connected with intellectual property. Justice Owada in his remarks pointed out how the International Court of Justice is no longer confined to traditional areas of jurisdiction, such as territorial disputes and diplomatic protection. As society develops, the focus of the law, the priority, will naturally change.
So matters connected with patents, trademarks, copyrights, antitrust law, unfair competition, these are assuming increasing importance in our countries. And you are particularly discussing the topic of folklore. People of Asia and of Africa are creative people. So you need to protect their intellectual creations, because these are also worth money. It is not just money and chattels and houses, other forms of tangible property but creations of the mind, songs, novels, inventions must also be fully protected. And I am happy this is also receiving a very sharp focus in your deliberations.
These are the reasons why, on behalf of the government of Sri Lanka, I would like to tell you that we are exceedingly happy that these deliberations are taking place in our country, at a particularly significant juncture in our contemporary history. We welcome you very warmly and we hope very much that, apart from your rich deliberations, you will find time to savour for yourselves the scenic beauty of our country, the warmth and hospitality of our people and the vibrancy of our culture. I thank you.
CONTACT: Mollie Lemon (News Media Only) lemon.mollie@epa.gov |
202-564-2039
202-564-4355
FOR IMMEDIATE RELEASE
July 6, 2011
EPA Proposes Safeguards for Hazardous Waste Recycling
Action aims to promote economic, environmental and public health benefits of waste recycling
WASHINGTON – The U.S. Environmental Protection Agency (EPA) is proposing new safeguards for recycling hazardous materials to protect public health and the environment. Today's proposal modifies EPA's 2008 Definition of Solid Waste (DSW) rule, which revised hazardous waste regulations to encourage recycling of hazardous materials. Today's proposal will improve accountability and oversight of hazardous materials recycling, while allowing for important flexibilities that will promote its economic and environmental benefits. EPA is opening up this proposal for public comment.
EPA is also releasing for public comment its draft expanded environmental justice analysis of the 2008 DSW final rule, which evaluates the rule's potential impact on low-income and minority communities. EPA is also requesting public comment on the environmental justice analysis as well as on suggested changes received from peer review. The analysis and peer review comments will be available in the docket for this rulemaking once the proposal is published.
“Safe recycling of hazardous materials conserves vital resources while protecting the environmental and economic health of our communities,” said Mathy Stanislaus, assistant administrator for EPA's Office of Solid Waste and Emergency Response. “Today's proposed enhancements show EPA's commitment to achieving sustainable materials management through increased recycling, while retaining safeguards to protect vulnerable communities and the environment.”
EPA's re-examination of the 2008 DSW final rule identified areas in the regulations that could be improved to better protect public health and the environment with a particular focus on adjacent communities by ensuring better management of hazardous waste. Today's proposal includes provisions to address those areas through increased transparency and oversight and accountability for hazardous materials recycling. Facilities that recycle onsite or within the same company under the reduced regulatory requirements retained under the proposal would be subject to enhanced storage and recordkeeping requirements as compared to the 2008 rule. Companies that send their hazardous materials offsite for recycling would have tailored storage standards, while being required to send their materials to a permitted hazardous waste recycling facility. The proposed rule also creates a level playing field by requiring all forms of hazardous waste recycling to meet requirements designed to ensure materials are legitimately recycled and not being disposed of illegally.
EPA will accept comment on this proposal for 60 days after publication in the Federal Register. The docket for the rulemaking is EPA-HQ-RCRA-2010-0742 and can be accessed at http://www.regulations.gov once the proposal is published.
Executive Order--Coordinating Policies on Automotive Communities and Workers
EXECUTIVE ORDER
COORDINATING POLICIES ON AUTOMOTIVE COMMUNITIES AND WORKERS
By the authority vested in me as President by the Constitution and the laws of the United States of America, it is hereby ordered as follows:
Section 1. Policy. Over the last decade, the United States has experienced a decline in employment in the automotive industry and among part suppliers. This decline accelerated dramatically from 2008 to 2009, with more than 400,000 jobs being lost in the industry. Now, 2 years later, the American automotive industry is beginning to recover. The automotive industry has, over the past 2 years, experienced its strongest period of job growth since the late 1990s. Exports have expanded, and the domestic automakers in 2010 gained market share for the first time since 1995. The automotive supply chain, which employs three times as many workers as the automakers, has also shown renewed strength. However, we still have a long way to go.
Over the past 2 years my Administration has undertaken coordinated efforts on behalf of automotive communities, including targeted technical and financial assistance. For example, the Department of Labor set aside funds for green jobs and job training for high growth sectors of the economy specifically targeted to communities affected by the automotive downturn, and the Department of Commerce provided funds specifically for automotive communities to develop plans for economic recovery. Stabilizing the automotive industry will also require the use of expanded strategies by automotive communities that include land use redevelopment, small business support, and worker training.
The purpose of this order is to continue the coordinated Federal response to factors affecting automotive communities and workers and to ensure that Federal programs and policies address these concerns.
Sec. 2. Assignment of Responsibilities to the Secretary of Labor.
(a) The Secretary of Labor shall:
(i) work to coordinate the development of policies and programs among executive departments and agencies with the goal of coordinating a Federal response to factors that have a distinct impact on automotive communities and workers, including through the coordination of economic adjustment assistance activities;
(ii) advise the President, in coordination with the Director of the National Economic Council, on the potential effects of pending legislation;
(iii) provide recommendations to the President, in coordination with the Director of the National Economic Council, on executive branch policy proposals affecting automotive communities and changes to Federal policies and programs intended to address issues of special importance to automotive communities and workers; and
(iv) conduct outreach to representatives of nonprofit organizations, businesses, labor organizations, State and local government agencies, elected officials, and other interested persons that will assist in bringing to the President's attention concerns, ideas, and policy options for expanding and improving efforts to revitalize automotive communities.
(b) The Secretary of Labor shall perform the functions assigned by this order in coordination with the Director of the National Economic Council. The Secretary of Labor may delegate these responsibilities to the Executive Director of the Department of Labor Office of Recovery for Auto Communities and Workers.
Sec. 3. Revocation. Executive Order 13509 of June 23, 2009, is hereby revoked.
Sec. 4. General Provisions. (a) The heads of executive departments and agencies shall assist and provide information to the Secretary of Labor or the Secretary's designee, consistent with applicable law, as may be necessary to carry out the responsibilities assigned by this order.
(b) Nothing in this order shall be construed to impair or otherwise affect:
(i) authority granted by law to an executive department, agency, or the head thereof; or
(ii) functions of the Director of the Office of Management and Budget relating to budgetary, administrative, or legislative proposals.
(c) This order shall be implemented consistent with applicable law and subject to the availability of appropriations.
(d) This order is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person.
BARACK OBAMA
THE WHITE HOUSE,
July 6, 2011.
The White House
Office of the Press Secretary
For Immediate Release May 31, 2011
Presidential Memorandum--Delegation of Authority to Appoint Commissioned Officers of the Ready Reserve Crops of the Public Health Service
By virtue of the authority vested in me as President by the Constitution and the laws of the United States, including section 301 of title 3, United States Code, I hereby assign to you the functions of the President under section 203 of the Public Health Service Act, as amended by Public Law 111-148, to appoint commissioned officers of the Ready Reserve Corps of the Public Health Service. Commissions issued under this delegation of authority may not be for a term longer than 6 months. Officers appointed pursuant to this delegation may not be appointed to the Ready Reserve Corps of the Public Health Service for a term greater than 6 months other than by the President or to the Regular Corps of the Public Health Service other than by the President with the advice and consent of the Senate. This authority may not be redelegated.
You are authorized and directed to publish this memorandum in the Federal Register .
BARACK OBAMA
The White House
Office of the Press Secretary
For Immediate Release June 17, 2011
Presidential Proclamation--Father's Day
FATHER'S DAY, 2011
BY THE PRESIDENT OF THE UNITED STATES OF AMERICA
A PROCLAMATION
Parenthood is the ultimate gift and an incredible responsibility. Every day, fathers across our country give everything they have to build a better future for their family, asking nothing in return but their children's love and success. On Father's Day, we honor the men in our lives who have helped shape us for the good, and we recommit to supporting fatherhood in our families, in our communities, and across our Nation.
Fathers, along with our mothers, are our first teachers, coaches, and advisors. They help us grow into adults, consoling us in times of need and celebrating with us in times of triumph. Strong male role models come in all forms, but they have one thing in common: they show up and give it their best. A father figure may be a biological father, or he may be a surrogate father who raises, mentors, or cares for another's child. Every family is different, but what matters is the unconditional support, guidance, and love fathers and mentors give us throughout life.
Today, too many children in our country grow up without such support and guidance. A father's absence is felt by children, families, and communities in countless ways, leaving a hole that can have lasting effects. Their absence is also felt by mothers, who work overtime and double shifts, put food on the table, and care for children alone while trying to make ends meet. And it is felt in our communities, when boys grow up without male leaders to inspire them.
My Administration has made supporting fathers and their communities a priority. Last year on Father's Day, I announced the President's Fatherhood and Mentoring Initiative, a nationwide effort to support organizations that foster responsible fatherhood and help re-engage fathers in the lives of their children. We have bolstered community and faith-based programs that provide valuable support networks for fathers. We are also promoting work-life balances that benefit families, and partnering with businesses across America to create opportunities for fathers and their children to spend time together. And military leaders are joining in our efforts to help families keep in touch when a dad is deployed overseas, so the fathers who serve to protect all our children can stay connected to their own.
On Father's Day, we celebrate the men who make a difference in the life of a child, and we pay tribute to all the fathers who have been our guiding lights. In the days ahead, we recommit ourselves to making fatherhood, and the support men need to be fathers, a priority in our Nation.
NOW, THEREFORE, I, BARACK OBAMA, President of the United States of America, in accordance with a joint resolution of the Congress approved April 24, 1972, as amended (36 U.S.C. 109), do hereby proclaim June 19, 2011, as Father's Day. I direct the appropriate officials of the Government to display the flag of the United States on all Government buildings on this day, and I call upon all citizens to observe this day with appropriate programs, ceremonies, and activities.
IN WITNESS WHEREOF, I have hereunto set my hand this seventeenth day of June, in the year of our Lord two thousand eleven, and of the Independence of the United States of America the two hundred and thirty-fifth.
BARACK OBAMA
About the President's Management Advisory Board
The President's Management Advisory Board (PMAB) was formed to provide the President and agencies advice and recommendations on bringing insight from the private and non-profit sectors to Federal Government management and operations. Topics that the board will address include customer service, human capital, innovative technology, and procurement.
PMAB was established as a Federal Advisory Committee, subject to the provisions of the Federal Advisory Committee Act. The members of the PMAB were appointed by the President from among distinguished citizens outside the Government who have a proven record in leading large, complex, and innovative organizations in the private or non-profit sectors. They have top-level business experience in executive management and an abundance of functional expertise, which they will use to envision a more capable and efficient Federal Government that delivers high-caliber service to its constituents.
The PMAB meets periodically to analyze key performance issues facing the Federal Government, drawing on leading practices from various sectors to promote innovative management solutions. The PMAB provides recommendations and strategic direction directly to the President and agencies for their input and review.
President Obama Addresses the Status of the Deficit Negotiations
Posted by Erin Lindsay on July 05, 2011 at 07:06 PM EDT
Department of Defense Makes Alternative Energy a Priority
IDGA's Alternative Energy for Defense to Coincide with DoD's Energy Awareness Month
3rd Annual Alternative Energy for Defense Conference
NEW YORK--( BUSINESS WIRE )--The DoD is making alternative energy a bigger priority than ever before. Conserving energy, lowering costs, reducing reliance on foreign oil, and increasing tactical and strategic security are the goals of new efforts toward “greening” the services . With a new partnership with the DoE and a new Assistant Secretary of Defense for Operational Energy Plans and Programs, the DoD has gotten serious about taking action.
Moreover, Executive Order 13514 calls for increased sustainability from all federal agencies. The DoD published its first Strategic Sustainability Performance Plan last year and will release its second plan later this year. In its third iteration, IDGA's Alternative Energy for Defense will focus on this plan and how the DoD is measuring up.
In time with the DoD's Energy Awareness Month, IDGA's 3rd Annual Alternative Energy for Defense Conference will provide the forum for senior-level experts from the DoD, Department of Energy, government agencies, and key industry leaders to discuss the most strategic and cost-efficient alternative energy solutions for defense as well as how to increase energy independence, “green” the military and more.
Plus, discover groundbreaking technologies in energy harvesting and storage from leaders in military, industry and academia! Find out more in a classroom setting with time for in-depth discussion and learning.
What sets this conference apart from the rest?
1. The opportunity to hear from and network with key leaders including:
The Honorable Katherine Hammack, Assistant Secretary of the Army (Installations & Environment)
The Honorable Jackalyne Pfannenstiel, Assistant Secretary of the Navy (Energy, Installations and Environment)
MG Dana Pittard, USA, 1st Armored Division Commanding General
Dr. Kevin Geiss, SES, Deputy Assistant Secretary of the Air Force, Energy
William F. Moore, SES, Deputy to the Commanding General, U.S. Army Combined Arms Support Command
2. A greater focus on sustainability, beyond alternative energy
3. Insight into the Services' response to EO 13514
4. Understand future requirements and trends for resource efficiency and sustainability
5. Discover the latest technology advances in solar, wind, biofuel, waste-to-energy, energy harvesting, storage, and more
The Institute for Defense & Government Advancement (IDGA) is a non-partisan information-based organization dedicated to the promotion of innovative ideas in public service and defense. IDGA brings together communities comprised of military, government, vendors and academia for education, networking and advancing the communities in which it serves. For more information, please visit http://www.idga.org .
Now, I've heard reports that there may be some in Congress who want to do just enough to make sure that America avoids defaulting on our debt in the short term, but then wants to kick the can down the road when it comes to solving the larger problem of our deficit. I don't share that view. I don't think the American people sent us here to avoid tough problems. That's, in fact, what drives them nuts about Washington, when both parties simply take the path of least resistance. And I don't want to do that here.
I believe that right now we've got a unique opportunity to do something big -- to tackle our deficit in a way that forces our government to live within its means, that puts our economy on a stronger footing for the future, and still allows us to invest in that future.
Most of us already agree that to truly solve our deficit problem, we need to find trillions in savings over the next decade, and significantly more in the decades that follow. That's what the bipartisan fiscal commission said, that's the amount that I put forward in the framework I announced a few months ago, and that's around the same amount that Republicans have put forward in their own plans. And that's the kind of substantial progress that we should be aiming for here.
To get there, I believe we need a balanced approach. We need to take on spending in domestic programs, in defense programs, in entitlement programs, and we need to take on spending in the tax code -- spending on certain tax breaks and deductions for the wealthiest of Americans. This will require both parties to get out of our comfort zones, and both parties to agree on real compromise.
I'm ready to do that. I believe there are enough people in each party that are willing to do that. What I know is that we need to come together over the next two weeks to reach a deal that reduces the deficit and upholds the full faith and credit of the United States government and the credit of the American people.
Don't Go Away Mad, Just Go Away: The Supreme Court Closes Up Shop
The U.S. Supreme Court ended its term this week and now starts a three-month vacation. If the Court's members follow past practices, Justice Thomas will head out in his motor home in search of NASCAR race venues. Justice Scalia will spend the summer racking up speaking fees at Federalist Society conferences or in a duck blind with Dick Cheney.
Judging from some of the cases decided by the Court during its past eight-month term, the conservative bloc of five Republican appointees appear to want more time for vacationing. Those five justices seem intent on America's courts taking it down a notch and kicking back more.
Closing down for the summer is not the Roberts Court's only disappearing act. During this past term, a disturbing trend emerged of withdrawing the courts from their historic and institutional role in providing justice for ordinary Americans. The Gang of Five conservative justices on the High Court has preemptively closed the courts' doors to the potential 300 million citizens who might sometime need "their day in court."
Two decisions released this spring provide evidence that the conservatives on the court have been eager to turn deaf judicial ears toward cases against corporations brought by employees and disgruntled consumers who want to use efficient legal strategies in seeking redress for their grievances. Dukes v. Wal-Mart
Wal-Mart was the blockbuster case at the end of the term. The reaction of the atomized Jane Q. Citizens (e.g. women workers) who were thrown out of court should be despair; the reaction of employers and corporate lawyers will be the smug satisfaction of feeling legally impregnable.
Statistical evidence gathered from Wal-Mart's employment records showed female employees at Wal-Mart, like the class action's named plaintiff Betty Dukes, were promoted more slowly and paid less than male employees hired for the same positions. A law passed by Congress decades ago, commonly called Title VII , gave them the right to bring such a lawsuit in the federal courts. The plaintiffs sought to bundle all the cases of the victimized female employees into one case and seek just compensation for the gender discrimination prevalent in the Wal-Mart business practices and workplace.
But, the Supreme Court closed the courthouse doors to all those hundreds of thousands of complaints of individual employees when they are combined together into a class action. Justice Scalia noted that the suit would encompass:
"literally millions" of employment decisions... Without some glue holding the alleged reasons for all those decisions together, it will be impossible... to produce a common answer to the crucial question why was I disfavored."
Of course the female employees of Wal-Mart have no problem in identifying the "glue" and the easily apparent "common answer" that eluded Justice Scalia and the four other Republican appointee men in the majority: they are women, not men, working at Wal-Mart.
Despite Justice Scalia's open mouth gasp at the size of the class action suit, that isn't the fault of the plaintiffs' lawyers. It is as much the result of an antitrust and deregulated business environment that allows one corporation to grow to be the largest private employer and retail business in the world selling half a trillion dollars of products. In spite of its gargantuan size and celebrated corporate efficiency, Justice Scalia describes Wal-Mart as little more than a corporate umbrella that publicly proclaims the usual "nondiscrimination" policy; but beyond that, is loathe to accept any responsibility whatsoever for how its thousands of managers of thousands of stores treat employees working under that umbrella.
Sure, the Court ruled, each employee could still look for a lawyer to take on a contingency case against the world's largest retailer. The possible verdict might be an award of a few hundred dollars in back pay that had been unlawfully denied.
Good luck with that. Realistically, what are the chances of thousands of employees taking that action and the lower chance that even a handful will find lawyers willing to take their cases?
The immediate impact of the decision for the "literally millions" of victims (not "decisions" as Justice Scalia's rhetoric distorts) of Wal-Mart's gender discrimination is that most will not have their "day(s) in court."
A longer term by-product of that impact for judges and Justices: reduced court calendars and more potential vacation time.
ATT Mobility concerned what should happen when a large number of customers are victims of sharp business practices that hurt customers but benefit a corporation's bottom line? ATT said the company would provide a "free" phone to certain customers; but it wasn't "free" from sales tax, a 30 dollar charge the consumer would have to pay. The Concepcions, the lead plaintiffs for the class of ATT cellphone users, claimed the telcom carrier hid that "It ain't so free" provision deep down in pages of small print.
In a small claims court action the disputed provision might have garnered the Concepcions a refund. When lawyers attempted to bundle a large number of such small value cases together into a class action -- seeking a refund of the extra fee for each customer in the class -- there was a gotcha clause buried even further down in the contract's small print.
ATT included a provision in the purchase contract saying a disputed claim could not be taken to court. It could only be resolved through an arbitration procedure set up by ATT. Moreover, similar arbitration claims could not be bundled together for the whole class; each customer would have to individually go through the arbitration procedure as required by the contract. And of course, ATT knows full well that such an arbitration procedure over a $30 claim is not something for which any customer would seek out a lawyer; and, even if they did, no lawyer would take one such small case.
The California Supreme Court ruled that imposition of exclusive arbitration remedies in contracts like that used by ATT customers violated California laws. But, the U.S. Supreme Court ruled that a Federal law favoring the use of arbitration to avoid litigation in the courts preempted California's law.
The result for the parties in ATT Mobility was similar to that in Wal-Mart with regard to whose interests were trammeled and whose were protected: hundreds of thousands of customers with a contract dispute against a large national corporation couldn't bring their claim to court. Why? The consumers had not paid sufficient attention to the contract's small print. Had all the Marx brothers bought cell phones from ATT, each one could pursue his own arbitration claim; but they couldn't sue in court together. Chico would have as much trouble with that as he had understanding the "sanity clause."
In addition to keeping complaints about the business practices of a large corporation out of court, the result is also good for judges and Justices as they pack beach chairs and suntan lotion this week? More time for vacations will be cleared by eliminating dockets cluttered by cases of consumers fighting for just compensation from a large American corporation.
To what extent Americans should be permitted to take grievances against businesses to court is a complicated proposition without a simple answer. It is important to note that in neither of the cases did the Justices say that the plaintiffs had no case or were not entitled to compensation.
But it can be of little solace to Ms. Dukes and the female employees of Wal-Mart, or to the Concepcions and other customers of ATT, to be told "You may well have a good case and be entitled to compensation. But you will have to go to a lot of trouble by yourself if you want to take on a large corporation. And one more thing: don't let the door hit you as it closes."
There is a unifying jurisprudential theme from both cases. Five conservative members of the Supreme Court voted consistently to close the courthouse door where ( what Leona Helmsley famously dubbed) "little people who pay taxes" seek out justice for injuries and disputes with businesses and corporations. When the justices return in October the five conservative bloc justices will feel refreshed and ready to find additional ways to cut back on the role of courts in providing "justice for all."
But as Stephen Colbert might say: "Nation, rest assured. There is no danger that the allure of the beach or the mountains will interfere with the Supreme Court reopening in time for election season." After all, this year or next there may be a Republican candidate running a bit behind in the vote count, say in a state such as Florida. The conservative bloc will be concerned that the doors of the Supreme Court remain wide open to provide justice for such a potential litigant in need of a helping jurisprudential hand.
Automatic Sync Technologies Added to the GSA Schedule 70 to Provide Compliant Closed-Captioning of Digital Video to Federal Agencies
AST Simplifies Procurement of CaptionSync™ Service for Public Sector, Providing Closed Captions, Subtitles and Digital Video Content to Meet Accessibility Standards
HAYWARD, Calif., July 6, 2011 — Automatic Sync Technologies ( AST ) today announced that its services are now available to federal government agencies purchasing under the General Services Administration (GSA) IT Schedule 70 . AST's CaptionSync™ captioning and transcription service has long served federal, state and local government agencies that purchase outside of Schedule 70. As a registered GSA Schedule 70 contractor, AST is pleased to serve those government customers choosing to purchase under the GSA schedule to help simplify the procurement process for its CaptionSync services. Now agencies can comply with purchase requirements, and meet federal mandates for accessibility by captioning all digital video content.
AST has experienced a growing demand for its captioning services from government customers who must comply with multiple standards for media accessibility, including ADA and Section 508 and the recent mandate for broadcasters, the 21st Century Communications and Video Accessibility Act.
Agencies producing and archiving digital video get a dual advantage with AST – the ability to quickly and efficiently add time-coded, synchronized captions to videos as well as the advantage of having searchable video content that is easy to archive and retrieve.
A recent project for AST has been captioning and transcription for the Library of Congress to make its digital Webcasts accessible. “The Library releases hundreds of hours of new video content online each year. Adding transcripts and captioning not only meets the 508 regulatory requirements for accessibility, it makes the Webcasts more accessible for everyone who sees them,” said Glenn Ricci, multimedia coordinator for the Information Technology Services Multimedia Group at the Library of Congress.
Complete and accurate closed captions are requirements for thousands of video publishers, who must satisfy state and federal mandates for content accessibility for deaf and hard-of-hearing audiences. Producers also incorporate captions to make video searchable, and to improve viewer comprehension . Captioned text reinforces learning and allows text search for easy back-reference and review, an important training benefit for companies serving multilingual customers. Caption files also provide a ready source for foreign language translation.
“AST is committed to simplifying the procurement process for government customers by offering many different paths to our service. We have a proven track record for delivering compliant and cost-effective services to our customers in the public sector, and now offer access to our solution through this government-wide contract vehicle,” said Kevin Erler, president of Automatic Sync Technologies. “Our GSA schedule status helps remove barriers so our public sector customers can use our CaptionSync service to make video universally accessible and searchable, by providing high-quality, complete and accurate closed captioning at a low price point.”
About CaptionSync™
CaptionSync is an innovative, proprietary software service powered by Automatic Sync Technologies, providing high-quality automated captioning with unrivaled speed at a fraction of the cost of conventional captioning. The simple user interface accepts electronic submission of program media and returns standard-format caption files for web-media such as Flash, QuickTime and Windows Media, for platforms such as Mediasite, Brightcove, Echo360, Panopto and YouTube, or for DVD authoring and broadcast. CaptionSync simultaneously generates caption output for multiple types of media from a single submission. CaptionSync provides the Gold Standard in accuracy because it does not rely on speech recognition software due to its inherent errors – AST stands apart from other providers of automation platforms for this reason. Read AST case studies about education, corporate and government customers to learn about high-speed captioning of video assets, completed in days, not months.
About Automatic Sync Technologies
Formed in 1998, AST has pioneered the automated captioning technology to deliver the most cost-efficient, high-quality, automatic captioning service available today. AST helps government agencies and educational institutions comply with mandated regulations to make advanced communication services accessible to the hard of hearing and deaf. For more information, email info@automaticsync.com , call +1 (877) 278-7962, or visit us online at http://www.automaticsync.com .
Facing an unusual situation because all the defendants agreed that the case could not go forward without deciding the claim for declaratory relief against the state, a District Court in Louisiana remanded the action to state court under the “State as the primary defendant” exception to CAFA.
Audrey E Mross
Labor & Employment Attorney
Munck Carter LLP
Connecticut Department of Energy and Environmental Protection Launched
New Agency Responsibilities for State's Energy Future and Natural Resources Brings together former DEP and DPUC along with energy policy The Connecticut Department of Energy and Environmental Protection (DEEP) came to life today, charged with the dual responsibilities of creating a new energy future for the state and protecting Connecticut's environment and natural resources.
DEEP Commissioner Daniel C. Esty said, "With the launch of our new agency, Connecticut is taking a positive step forward to fulfill Governor Malloy's vision of building a sustainable and prosperous economy for the future. We will be a national leader in integrating energy and environmental policy. We will bring down the cost of electricity to make our state more competitive. We will promote energy efficiency. And we will encourage the development and use of clean energy technologies."
"We will also move to protect our environment in new ways," Commissioner Esty said. "We will bring a renewed spirit of innovation to pollution control, conservation of our natural resources and management of our parks and forests."
DEEP brings together the state's Department of Environmental Protection (DEP), the Department of Public Utility Control (DPUC) and an energy policy group that had been based at the Office of Policy and Management. Legislation to create the new agency was approved by overwhelming, bipartisan majorities in both houses of the General Assembly and will be signed into law by Governor Malloy as Public Act 11-80.
The new agency consists of three branches:
Environmental Quality,
Includes environmental regulatory programs designed to protect the quality of Connecticut's air, water and land.
Environmental Conservation
Oversees Connecticut's impressive network of 107 state parks, 32 state forests and is also responsible for fisheries and wildlife management issues.
Energy
Includes a new Public Utilities Regulatory Authority (PURA), which reviews rates for electricity, water, cable television and other utilities as well as a Bureau of Energy and Technology, which will develop forward-looking energy efficiency, infrastructure and alternative power programs.
The new agency also introduced a new website at www.ct.gov/deep and a new logo, which can be seen here. Websites previously maintained by DEP, www.ct.gov/dep , and DPUC, www.ct.gov/dpuc , are also continuing to function. The main offices for environmental programs will continue be 79 Elm St., Hartford, which has been the home base for DEP. Utilities regulation will continue to be based at 10 Franklin Square, New Britain, which has been home to the DPUC.
Commissioner Esty said, "Connecticut now has a real focus on energy policy and its relationship to our environmental challenges. By bringing together energy functions that have been scattered around state government with our environmental agency we have created a platform that will allow Connecticut to tackle critical issues we face in the 21st century."
DN Editorial: Congress considers muddying Clean Water Act
July 05, 2011
THIS JUST IN: Rivers often cross state boundaries. In fact, some rivers actually are state boundaries.
So if hazardous waste were dumped into the Delaware River in, say, Trenton, some of it would almost certainly find its way to Philadelphia.
And we likely would have a problem with that.
When it comes to water quality, we're all in this together. That's why the Clean Water Act - which sets and mandates the enforcement of national standards for water quality - has been essential to protecting the environment for nearly four decades.
As we learned in the 1960s, when it's "every state for itself," rivers catch fire, you can't swim in lakes, fish are too polluted to eat, and feuding states have to go to court to duke it out over whose garbage is whose.
If some shortsighted members of Congress have their way, the United States could very well be singing a reprise of "Burn On, Big River, Burn On," Randy Newman's hymn to the fiery Cuyahoga. If it were to become law, a bill approved early last month by the House Transportation and Infrastructure Committee would undo two generations of environmental progress.
Apparently, one congressman from West Virginia is angry because the Environmental Protection Agency has blocked mountaintop coal-removal methods that jeopardize watersheds. Another from Florida doesn't like government-mandated safeguards against chemical pollutants. So they cooked up legislation that not only will make it easier on the polluters in their states, but render the Clean Water Act useless for the 48 others.
According to an EPA analysis, if the "Clean Water Cooperative Federalism Act" became law, the agency would be prevented from upgrading water-quality standards if an individual state disagreed with the changes - even if there were scientifically demonstrated threats to human health or aquatic life. In addition, the bill would keep the EPA from refereeing disputes among states.
In short, the proposed legislation would pretty much allow individual states to veto standards set by the Clean Water Act - the better to attract polluters or please local industries that want to avoid the expense of cleaning up the poisonous crap they generate - and that just might want to show their gratitude by making big contributions to the helpful politicians' election campaigns.
Environmental groups say this legislation is the single most serious threat to the Clean Water Act in its 39-year history. Congress should "deep-six" it.
US seeks comments on protection for area including Greene Co.
By Jim Planck
Hudson-Catskill Newspapers
Published: Tuesday, July 5, 2011 2:11 AM EDT HIGHMOUNT — The U. S. Environmental Protection Agency is holding a public meeting Thursday, July 7, 7-9 p.m., at Belleayre Mountain, in the Ulster County community of Highmount, to receive comment on the City of New York's watershed protection and partnership programs.
NYS Department of Health and NYS Department of Environmental Conservation are the state agencies that are also part of the process, with DOH having received oversight authority of the watershed from EPA in 2007.
The Highmount session is one of four that have been scheduled on the subject, and the closest geographically for Greene County residents.
The City's West-of-Hudson Watershed essentially includes the entire western half of the county, with only a very small part of the Town of Hunter — the east half of Haines Falls and the North/South Lake area — not being within it.
What's under discussion is the City's ability to avoid building a multi-billion dollar filtration plant to purify its water, which is reflected in a decision by the EPA, and which is suitably called a Filtration Avoidance Determination, or FAD.
The EPA decides whether to issue one every 10 years, and the current meetings are the “Midterm Review & Revision” of the City's 2007 FAD, to hear and learn how the public and stakeholders think the system is working.
The input will be used to help shape the development of the FAD's programs for the next five years, the second half of the 2007 determination.
Among the City's watershed protection activities are programs for landowners and homeowners, plus assistance for communities and businesses.
They run a wide gamut, from land acquisition and conservation easements to stream management and stormwater treatment, with agriculture and forestry programs working with those industries and wastewater treatment plants and sewer extensions for communities.
There are untold residents and businesses, plus virtually every municipal board in the watershed, that have had, and continue to have, strong interaction with the City's Department of Environmental Protection and Bureau of Water Supply since the inception of the 1997 Memorandum of Agreement, or MOA, that created the requirement for a FAD.
Thursday's meeting is essentially the opportunity to let the EPA know whether the results are satisfactory or not.
Because of time limitations, verbal comments will be contained to three-to-five minutes, but can be supplemented with written materials.
Additionally, written comments themselves may be provided to DOH's watershed department at NYC Watershed Section, NYS DOH Bureau of Water Supply Protection, Room 400, 547 River Street, Troy, NY 12180.
For more information, contact DOH at (518) 402-7711.
Federal Acquisition Regulation; Unique Procurement Instrument Identifier
Jul 04, 2011 (FIND, Inc. via COMTEX) -- SUMMARY: DoD, GSA, and NASA are issuing a final rule amending the Federal Acquisition Regulation (FAR) to standardize use of unique Procurement Instrument Identifiers (PIID) throughout the Government. The lack of consistent agency policies and procedures for PIIDs subjected users of contract data, including the Federal Government, contractors, and the public, to potential duplicate, overlapping, or conflicting information from the different Federal agencies.
EFFECTIVE DATE: Effective Date: August 4, 2011.
FOR FURTHER INFORMATION CONTACT: Mr. Karlos Morgan, Procurement Analyst, at (202) 501-2364 for clarification of content. For information pertaining to status or publication schedules, contact the Regulatory Secretariat at (202) 501-4755. Please cite FAC 2005-53, FAR Case 2009-023.
SUPPLEMENTARY INFORMATION: I. Background DoD, GSA, and NASA published a proposed rule in the Federal Register at 75 FR 50731 on August 17, 2010, to standardize the use of unique PIIDs throughout the Government. Four respondents submitted comments on the proposed rule.
II. Discussion and Analysis of the Public Comments The Civilian Agency Acquisition Council and the Defense Acquisition Regulations Council (the Councils) reviewed the public comments in the development of the final rule. A discussion of the comments and the changes made to the rule as a result of those comments are provided as follows: A. Agency and Office Identifier Comment: A respondent provided a suggestion that the prescribed identifiers include not only an agency identifier, but an office identifier as well.
Response: At this time, not all agencies have an office-unique identifier. However, as data standardization efforts progress, this may be a future area of consideration.
B. Amendments Comment: A respondent suggested that the term "amendments" be removed from the proposed FAR 4.605, as "amendments" are not reported to the Federal Procurement Data System (FPDS).
Response: "Amendments" will be removed from the identified part, and replaced with "solicitations", because solicitation numbers are included in FPDS contract action reports.
C. Consistent Government Format Comment: Two respondents requested a consistent format for the PIIDs across the Government.
Response: At this time it is not cost effective to transition all Federal agencies to a single PIID format across the Government.
[Page Number 39235] D. Linkage of Old and New PIIDs Comment: A respondent suggested adding language to proposed FAR 4.1601(f) to require linking any new PIID assigned to an award to the old originating PIID.
Response: Language was added to FAR 4.1601(f) as suggested.
E. New Contractor Identification Comment: Two respondents suggested the creation of a new contractor identification system within the public domain.
Response: This request is out of scope for this case.
III. Executive Orders 12866 and 13563 Executive Orders (E.O.s) 12866 and 13563 direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). E.O. 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. This is not a significant regulatory action and, therefore, was not subject to review under section 6(b) of E.O. 12866, Regulatory Planning and Review, dated September 30, 1993. This rule is not a major rule under 5 U.S.C. 804.
IV. Regulatory Flexibility Act The Department of Defense, the General Services Administration, and the National Aeronautics and Space Administration certify that this final rule will not have a significant economic impact on a substantial number of small entities within the meaning of the Regulatory Flexibility Act, 5 U.S.C. 601, et seq., because it will not impose new requirements on industry. It only provides internal Government policies and procedures.
V. Paperwork Reduction Act The final rule does not contain any information collection requirements that require the approval of the Office of Management and Budget under the Paperwork Reduction Act (44 U.S.C. chapter 35).
List of Subjects in 48 CFR Part 4 Government procurement.
Dated: June 28, 2011.
Laura Auletta, Acting Director, Office of Governmentwide Acquisition Policy, Office of Acquisition Policy.
Therefore, DoD, GSA, and NASA amend 48 CFR part 4 as follows: PART 4--ADMINISTRATIVE MATTERS 1. The authority citation for 48 CFR part 4 continues to read as follows: Authority: 40 U.S.C. 121(c); 10 U.S.C. chapter 137; and 42 U.S.C. 2473(c).
2. Add section 4.001 to read as follows: 4.001 Definitions.
As used in this part-- Procurement Instrument Identifier (PIID) means the Government-unique identifier for each solicitation, contract, agreement, or order. For example, an agency may use as its PIID for procurement actions, such as delivery and task orders or basic ordering agreements, the order or agreement number in conjunction with the contract number (see 4.1602).
Supplementary procurement instrument identifier means the non-unique identifier for a procurement action that is used in conjunction with the Government-unique identifier. For example, an agency may use as its PIID for an amended solicitation, the Government-unique identifier for a solicitation number (e.g., N0002309R0009) in conjunction with a non-unique amendment number (e.g., 0001). The non-unique amendment number represents the supplementary PIID.
3. Amend section 4.605 by revising paragraph (a) to read as follows: 4.605 Procedures.
(a) Procurement Instrument Identifier (PIID). Agencies shall have in place a process that ensures that each PIID reported to FPDS is unique Governmentwide, for all solicitations, contracts, blanket purchase agreements, basic agreements, basic ordering agreements, or orders in accordance with 4.1601, and will remain so for at least 20 years from the date of contract award. Other pertinent PIID instructions for FPDS reporting can be found at https://www.fpds.gov.
* * * * * 4. Add subpart 4.16 to read as follows: Subpart 4.16--Unique Procurement Instrument Identifiers Sec.
4.1600 Scope of subpart.
4.1601 Policy.
4.1602 Identifying the PIID and supplementary PIID.
Subpart 4.16--Unique Procurement Instrument Identifiers 4.1600 Scope of subpart.
This subpart prescribes policies and procedures for assigning unique Procurement Instrument Identifiers (PIID) for each solicitation, contract, agreement, or order and related procurement instrument.
4.1601 Policy.
(a) Procurement Instrument Identifier (PIID). Agencies shall have in place a process that ensures that each PIID used to identify a solicitation or contract action is unique Governmentwide, and will remain so for at least 20 years from the date of contract award.
(b) Agencies must submit their proposed identifier format to the General Services Administration's Integrated Acquisition Environment Program Office, which maintains a registry of the agency-unique identifier schemes.
(c) The PIID shall consist of alpha characters in the first positions to indicate the agency, followed by alpha-numeric characters according to agency procedures.
(d) The PIID shall be used to identify all solicitation and contract actions. The PIID shall also be used to identify solicitation and contract actions in designated support and reporting systems (e.g., Federal Procurement Data System, Past Performance Information Retrieval System), in accordance with regulations, applicable authorities, and agency policies and procedures.
(e) Agencies shall not change the PIID, unless the conditions in paragraph (f) of this section exist.
(f) If continued use of a PIID is not possible or is not in the Government's best interest solely for administrative reasons (e.g., for implementations of new agency contracting systems), the contracting officer may assign a new PIID by issuing a modification. The modification shall clearly identify both the original and the newly assigned PIID.
4.1602 Identifying the PIID and supplementary PIID.
(a) Identifying the PIID in solicitation and contract award documentation (including forms and electronic generated formats). Agencies shall include all PIIDs for all related procurement actions as identified in paragraphs (a)(1) through (5) of this section.
(1) Solicitation. Identify the PIID for all solicitations. For amendments to [Page Number 39236] solicitations, identify a supplementary PIID, in conjunction with the PIID for the solicitation.
(2) Contracts and purchase orders. Identify the PIID for contracts and purchase orders.
(3) Delivery and task orders. For delivery and task orders placed by an agency under a contract (e.g., indefinite delivery indefinite quantity (IDIQ) contracts, multi-agency contracts (MAC), Governmentwide acquisition contracts (GWACs), or Multiple Award Schedule (MAS) contracts), identify the PIID for the delivery and task order and the PIID for the contract.
(4) Blanket purchase agreements and basic ordering agreements. Identify the PIID for blanket purchase agreements issued in accordance with 13.303, and for basic agreements and basic ordering agreements issued in accordance with subpart 16.7. For blanket purchase agreements issued in accordance with subpart 8.4 under a MAS contract, identify the PIID for the blanket purchase agreement and the PIID for the MAS contract.
(i) Orders. For orders against basic ordering agreements or blanket purchase agreements issued in accordance with 13.303, identify the PIID for the order and the PIID for the blanket purchase agreement or basic ordering agreement.
(ii) Orders under subpart 8.4. For orders against a blanket purchase agreement established under a MAS contract, identify the PIID for the order, the PIID for the blanket purchase agreement, and the PIID for the MAS contract.
(5) Modifications. For modifications to actions described in paragraphs (a)(2) through (4) of this section, and in accordance with agency procedures, identify a supplementary PIID for the modification in conjunction with the PIID for the contract, order, or agreement being modified.
(b) Placement of the PIID on forms. When the form (including electronic generated format) does not provide spaces or fields for the PIID or supplementary PIID required in paragraph (a) of this section, identify the PIID in accordance with agency procedures.
(c) Additional agency specific identification information. If agency procedures require additional identification information in solicitations, contracts, or other related procurement instruments for administrative purposes, identify it in such a manner so as to separate it clearly from the PIID.
[FR Doc. 2011-16673 Filed 7-1-11; 8:45 am] BILLING CODE 6820-EP-P Vol. 76, No. 128 Part V Rules and Regulations
Supreme Court prohibits federal common
law nuisance suits seeking limits on
carbon dioxide emissions
McAfee & Taft RegLINC - July 2011
By Robert Joyce
By a vote of 8 - 0, the United States Supreme Court
recently ruled that congressional delegation of authority to
EPA to regulate pollutants under the Clean Air Act (“Act”)
speaks directly to regulation of carbon dioxide emissions
from power plants and therefore displaces any right a
plaintiff might otherwise have to seek abatement of carbon
dioxide emissions from such facilities under federal
common law. The court's decision was handed down on
June 20, 2011, in the case of American Electric Power Co., Inc., et al. v
Connecticut , et al. and builds on its earlier decision in Massachusetts v. EPA ,
549 U.S. 497 (2007) in which carbon dioxide and other greenhouse gases (GHG)
were found to be “air pollutants” under the Act and therefore subject to regulation
by EPA. It was the decision in Massachusetts that paved the way for EPA to
develop regulations governing greenhouse gas emissions. In AEP , a number of
states, together with the City of New York and several private land trusts, sued
five large utilities operating coal-fired electric power plants in the United States.
Plaintiffs alleged that the utilities collectively emitted 25 percent of all carbon
dioxide produced at domestic power plants and 10 percent of all carbon dioxide
from human activity in the United States. According to plaintiffs, these emissions
constitute a “substantial and unreasonable interference with public rights” and
are thus a nuisance under federal common law, as well as state tort law.
Plaintiffs sought to hold defendants jointly and severally liable for global warming
and to obtain an injunction in district court which would cap defendants'
emissions and require periodic reductions over a period of 10 years or more. The
district court, however, dismissed the claims, holding that they were “non-
justiciable political questions” best left to policymakers.
The 2nd Circuit Court of Appeals took up the issue in 2007 and reversed the
lower court. The 2nd Circuit found that plaintiffs' claims were not barred by the
political question doctrine and that plaintiffs had, in fact, stated a claim allowing
for abatement under the federal common law of nuisance. Critical to the 2nd
Circuit's decision to allow the case to go forward was the fact that EPA had not
yet promulgated regulations governing carbon dioxide emissions from power
plants. However, this fact was thought relevant by the 2nd Circuit based on an
overly broad interpretation of the Supreme Court's decision in Milwaukee v.
Illinois , 452 U.S. 304 (1981). In Milwaukee (which involved a similar interstate
pollution situation under the Clean Water Act), plaintiffs sought abatement of
water pollution under a theory of federal common law nuisance. There, plaintiffs'
claims were ostensibly dismissed because EPA had been delegated authority to,
and had, in fact, promulgated regulations comprehensively regulating the water
pollution at issue. According to the 2nd Circuit, the situation in AEP was different
from Milwaukee because EPA, while having authority to do so, had not
promulgated regulations addressing the pollution at issue. Because there were
no such regulations in place for carbon dioxide emissions from power plants, the
2nd Circuit reasoned that federal common law had not been displaced and
plaintiffs' claims could go forward.
On appeal to the Supreme Court, the justices (in a 4 - 4 vote) first rejected
plaintiffs' standing argument with virtually no discussion and proceeded to the
merits of the case. In addressing the substantive issue, the court first explored
the concept and evolution of a specialized federal common law. The court
characterized federal common law as a body of law addressing “areas of national
concern” and within the scope of “national legislative power,” such as “air and
water in their ambient or interstate aspects.” While confirming these parameters
within which the court may be called to develop the federal common law, the
court cautioned that it “remains mindful that it does not have creative power akin
to that vested in Congress.” In that vein, the court observed that it has “not yet
decided whether private citizens . . . or political subdivisions . . . of a State may
invoke the federal common law of nuisance to abate out-of-state pollution. Nor
[has the Court] ever held that a State may sue to abate any and all manner of
pollution originating outside its borders.” Indeed, while recognizing “that public
nuisance law, like common law generally, adapts to changing scientific and
factual circumstances,” and acknowledging the global scale and importance of
the global warming issue, the court set these interstate and international pollution
issues aside for another day, finding it unnecessary to decide them in light of its
treatment of the core issue: whether Congress has displaced the need for the
court to engage in judicial law-making.
In addressing the issue of
displacement of federal common law,
the court first observed that, where
Congress “addresses a question
previously governed by a decision
rested on federal common law . . . the
need for such an unusual exercise of
law-making by federal courts
disappears.” Unlike the concept of
federal preemption of state law
(discussed below) - which involves
issues of federalism and thus requires
“evidence of a clear and manifest
[congressional] purpose” to occupy the
field - the test for whether
congressional legislation overrides a
declaration of federal common law is
simply whether the statute “speak[s]
directly to [the] question at issue.”
Thus, Congress may override or
“displace” any need to develop or
apply federal common law simply by passing federal legislation addressing the issue at hand. After all, “it is primarily the office of Congress, not the federal courts, to prescribe national policy in areas of special federal interest.”
Turning, then, to the Clean Air Act, the court held that the Act “and the EPA
actions it authorizes displace any federal common law right to seek abatement of
carbon dioxide from fossil-fuel power plants.” To arrive at this conclusion, the
court examined the mechanics of the Act and its directives to EPA. At its core,
the Act requires EPA to identify and regulate stationary sources of pollutants that
contribute to air pollution that “may reasonably be anticipated to endanger public
health and welfare.” As was decided in Massachusetts, carbon dioxide is a
pollutant regulated under the Act. Likewise, power plants are one of the
categories of pollutant sources already identified by EPA as being “reasonably
anticipated to endanger public health and welfare.” Those elements being
established, the court observed that the Act requires EPA to establish limits for
carbon dioxide emitted from both new and existing power plants and empowers
EPA to enforce such limits. Furthermore, if EPA does not establish required
emissions limits or does not engage in appropriate enforcement of those limits,
the public is authorized to petition for rulemaking and pursue citizen's suits to
implement the Act, all of which is reviewable by the federal courts. Indeed, the
decision in Massachusetts was specifically directed at requiring EPA to develop
regulations addressing carbon dioxide emissions, and EPA is currently doing so
with a target date of May 2012 for completion. In the court's view, this leads to
the inexorable conclusion that the Act “speaks directly to emissions of carbon
dioxide from the defendants' plants.” Consequently, because the “Act itself
provides a means to seek limits on emissions of carbon dioxide from domestic
power plants - the same relief the plaintiffs seek by invoking federal common law
. . . [we] see no room for a parallel track” through a nuisance lawsuit.
The court clarified Milwaukee by finding immaterial the fact that EPA has not yet
completed its work on implementing regulations to control carbon dioxide
emissions from power plants. The critical inquiry for purposes of determining if
federal common law has been displaced is “whether the field has been occupied,
not whether it has been occupied in a particular manner.” According to the court
in AEP , the field was occupied when “Congress delegated to EPA the decision
whether and how to regulate carbon dioxide emissions from power plants.” It is
that delegation by Congress that displaces federal common law - not the
exercise of that delegation. As such, whether or not EPA has completed its
rulemaking process under a delegation of authority by Congress is irrelevant to a
determination as to whether federal common law has been displaced.
Clearly, then, the path for those dissatisfied with EPA's progress or conclusions
(i.e., the manner in which it occupies the field) is through involvement in the
rulemaking process in the first instance and subsequent judicial review of that
process. As noted by the court, where EPA has been delegated rulemaking
authority, “EPA's judgment . . . would not escape judicial review” insofar as the
federal courts “can review agency action (or a final rule declining to take action)
to ensure compliance with the Clear Air Act.” That EPA is to exercise its expert
judgment in determining if and to what extent emissions of a pollutant from a
stationary source endanger public health or welfare “is not a roving license to
ignore the statutory text. It is but a direction to exercise discretion within defined
statutory limits.” Ultimately, if plaintiffs are dissatisfied with EPA's final decision
regulating carbon dioxide emissions from power plants, their recourse is limited
to a judicial review of EPA's decision-making process.
From a practical standpoint, the court correctly views EPA as the proper party to
make judgments about the complex scientific issues being debated in connection
with the greenhouse effect and global warming. Such judgments require
“informed assessment of competing interests” including environmental impacts,
energy needs and economic repercussions. In the Act itself, Congress required
many in-depth inquiries including the costs of implementation, differences among
sources and control technology, and non-air health and environmental issues, to
name a few. For the courts to undertake these inquiries would require expertise
that judges do not possess and resources they cannot access. EPA, as the
expert in such matters, “is surely better equipped to do the job than individual
judges issuing ad hoc, case-by-case injunctions.” Further, a process whereby federal judges in multiple jurisdictions impose the remedies sought by plaintiffs “cannot be reconciled with the decision-making scheme Congress enacted.” As such, the court concluded that the 2nd Circuit erred in allowing judges to set
limits on greenhouse gasses under federal common law because Congress
empowered EPA to develop such limits and because EPA's exercise of authority is subject to judicial review to ensure EPA does not make decisions in a manner that is arbitrary, capricious or contrary to law.
Finally, the court noted that plaintiffs also asserted tort claims under the laws of the states where the power plants are located. Because the 2nd Circuit held that federal common law applied, it did not address the state law claims. As such, the Supreme Court was precluded from dealing with the issue and the district court has been left to consider the state law claims and whether or not they are
preempted by the Act on remand.
In summary, the AEP decision holds that where there is a congressional
delegation of authority to EPA to regulate pollutants under the Clean Air Act that speaks directly to a particular pollutant from a particular source, such delegation displaces any right a plaintiff might otherwise have to seek abatement of the
pollutant emitted from such source under federal common law. The court did not decide whether state law is preempted in any way by the Act. While seemingly a victory for industry, the decision presents a slippery slope. If Congress chooses
to legislatively repeal EPA's authority to regulate carbon dioxide as a pollutant
under the Act (as is currently being urged by many), the federal common law of
nuisance could spring back into play. Just how this plays out will, perhaps,
depended on how GHGs are further addressed, if at all, in any new federal
legislation. At least for now, the issue of how to address GHGs remains in the
hands of EPA, subject to review by the courts to ensure that EPA does not act
arbitrarily, capriciously or contrary to law.
LINKS
• Robert Joyce's Bio
• McAfee & Taft RegLINC - July 2011
Oklahoma City Tenth Floor • Two Leadership Square 211 N. Robinson • Oklahoma City, OK 73102-7103 (405) 235-9621 office • (405) 235-0439 fax
Tulsa 1717 S. Boulder Suite 900 • Tulsa, OK 74119
‘Venue' Clause Not Consent to Personal Jurisdiction—Court of Appeal
By a MetNews Staff Writer
A company that contractually agreed that any lawsuit between the parties would be “venued” in Orange County did not thereby assent to personal jurisdiction in California, the Fourth District Court of Appeal has ruled.
Div. Three Thursday granted a writ quashing service on Global Packaging, Inc., a Pennsylvania-based company that was sued in connection with its purchase of software from Orange County-based Epicor Software Corporation.
Epicor filed suit in Orange Superior Court last year. Global moved to quash service on the ground that it lacked an actual presence in, or minimum contacts with, California.
Judge John Gastelum denied the motion on the ground that Global had agreed to be sued in Orange County. He cited a provision in the parties' contract stating that claims between the parties “shall be venued only in the state or federal court in...Orange County, California or...the jurisdiction in which the Software is located,” at the plaintiff's option.
The ruling was erroneous, Justice William Bedsworth wrote for the appellate court, because it “conflated venue, forum, and jurisdiction to imply Global Packaging's consent to personal jurisdiction.”
Historically, the justice wrote, courts were hostile to forum-selection clauses, although the courts of many states, including California, have specifically upheld them, or at least upheld the discretion of the courts to enforce them, and the U.S. Supreme Court has held them enforceable.
But “an agreement to litigate in a certain location, a forum” does not, he said, “necessarily imply an additional, separate agreement to submit to the jurisdiction of that forum, one in which personal jurisdiction would not otherwise be available....”
Unlike forum-selection or choice-of-law agreements, he elaborated, the issue of personal jurisdiction implicates constitutional due process protection, a waiver of which should not lightly be implied.
He took issue with the reasoning of the trial judge, who concluded that “these parties” would not “bother” to include a venue clause in their contract if they did not intend to submit to California jurisdiction.
Bedsworth noted that the contract was a form whose provisions were determined by Epicor for use with many customers. “As to why bother, the ways in which contract drafters can fall down on the job are unlimited,” he wrote, adding that “a court should not be called upon to function as a backstop for sloppy contract drafting.”
It would have been “ridiculously easy” for the parties to have included a specific jurisdictional waiver, he noted, had they intended to do so. If they had, he said, it would have been clear to Global that it was opening itself up to being sued on Epicor's home turf “and it would very probably have kept this contract interpretation dispute out of the court.”
The trial court ruling, he said, “stretches paragraph 11 beyond what its actual words can bear and pulls Epicor out of a pit of its own digging.”
San Diego attorney Stephen M. Hogan represented Global on appeal. Epicor was represented by Calvin House of Pasadena's Gutierrez, Preciado & House, along with Kenneth J. Richard of Rancho Santa Margarita.
The case is Global Packaging, Inc. v. Superior Court (Epicor Software Corporation), 11 S.O.S. 3591.
Copyright 2011, Metropolitan News Company
Like the 104th Congress when Republicans controlled the House of Representatives, the House today is swinging a sledgehammer at a cornerstone of contemporary American democracy and undermining the most extraordinary body of environmental law in the world.
Chief among the attacks is HR 2018 , known as the "Clean Water Cooperative Federalism Act of 2011." The bill, currently working its way through the House, hogties the federal government's role in administering the federal Clean Water Act and gives states a veto power over a host of critical water quality decisions that the Clean Water Act currently authorizes the Environmental Protection Agency to make. This approach will foster a 1950s-style race to bottom as shortsighted and self-interested state politicians dismantle their clean water laws in order to recruit filthy polluters.
Corporate polluters -- through massive campaign donations and relentless fear-mongering -- can easily dominate the state political landscapes. Their indentured servants in Congress -- many flying the Tea Party banner -- are working to disrupt the existing balance between state control and federal oversight in our environmental laws by returning us to the days of limited federal supervision -- a time when local government was on the side of polluters in a partnership that was stealing people's livelihoods, their recreation, their health, safety, property values and their childhoods.
The original drafters of the Clean Water Act were keenly aware of the problems inherent in leaving all responsibility to the states. Prior to 1972, that scheme had ignited rivers and firestorms and left Lake Erie declared dead. We saw the results first hand here on the Hudson River in the 1960s -- where hundreds of fishermen lost their jobs because their beloved waterways had become too polluted to allow anyone to safely eat the fish. The Clean Water Act, enacted shortly thereafter, created a beautifully simple yet powerfully effective tool to help address these problems: a federal safety net for water quality that guarantees a minimum level of protection to all Americans, no matter where you live. And for nearly 40 years this approach has been working.
Indeed, the Clean Water Act is one of our most important environmental laws, and it is a model -- both in the U.S. and abroad -- for achieving a sensible balance between state officials' familiarity with local conditions and the important role the federal government plays in protecting all citizens from a race-to-the-bottom by polluters and politicians intent on short term gain at the expense of local communities and long-term prosperity.
Having this shared authority is essential because state agencies face intense pressure to ignore the Clean Water Act in favor of the most powerful corporate interests. It is no coincidence that many of the bill's sponsors are from states where EPA has used its authority under the Act in recent years to make sure minimum levels of protection are achieved, such as West Virginia and Florida.
Unfortunately, HR 2018 rewards states for their past failures and rolls back the clock nationally by promoting an agenda that benefits only those who seek to pollute our waterways -- not the communities that depend on them.
Representative Tim Bishop of New York, to his credit, offered an amendment in committee that would have protected water bodies that serve as drinking water supplies, flooding buffers, recreation destinations and habitat for fish and game prized by anglers and hunters from these sweeping rollbacks. But sponsors of the bill would have none of it -- further revealing their disinterest in the protection of the American public from the threats of water pollution.
Poll after poll shows the public's support for clean water . The American people didn't stand for these congressional attacks to our environmental laws in the mid-1990's. And we must not stand for them today.
GE introduces new synchronous generators for small hydropower applications
FORT WAYNE, Ind., U.S. 7/6/11 (PennWell) --
GE has introduced new synchronous hydro generators for horizontal and vertical hydro-turbine applications in the 2,000 to 37,500 kVA range, the company reported.
Each machine is designed, manufactured and tested at a GE factory before shipment for installation in the field, reducing installation and commissioning time, a press release states.
"Our synchronous hydro generators are specifically designed in response to the growing demand of small hydro plants," said Nimesh Sharan, GE Motor product line manager. "These units incorporate a full range of features to address the applications and rugged operational conditions demanded by users in the industry."
GE's synchronous hydro generators deliver compact construction and small foundation, a press release states.
Modular construction provides fast and easy site installation, and units can be shipped assembled or disassembled based upon customer preference and product size, GE said.
The celebration of the nation's birthday led me back to the reading of the original texts of our democracy. The Constitution. The Declaration of Independence. The Federalist Papers. The Bill of Rights. Thomas Paine's Common Sense.
It also propelled me toward contemporary works that analyze the current relationship of government to the exercise of personal liberty, between rights and responsibilities, and which discuss, sometimes at great length, the present state of relations between the great mass of the American people and their elected leaders.
All of this has led me, albeit reluctantly, to a powerful conclusion: Whether he realizes it or not, Barack Obama intends to make slaves of my children. [See political cartoons about Obama.]
This is not to say he wishes to deprive them entirely of their personal freedoms, subjecting them to be owned by others. Quite the contrary, in fact, for what he wants to do seeks to preserve the illusion of freedom. Nevertheless, in a very real sense, his obvious intention is to increase the burden of government to the point where it becomes a crushing weight upon them all.
Consider his recent redesign of the nation's healthcare financing system, which rests upon the idea that everyone must purchase some form of health insurance or risk being fined or imprisoned. This is the coercive power of the state at its worst—something that is seldom seen in this country. [Check out a roundup of political cartoons on healthcare.]
After all, we do not force people to work—even as a condition of receiving benefits from the state. We do not even force them to become citizens of the country before allowing them access to the social safety net. Nor, for we are a compassionate people, should we necessarily do so. Yet the president is now intent on forcing everyone to purchase health insurance , depriving them of any choice in the matter.
This, like it or not, is a form of slavery.
There is also his management—or mismanagement—of the U.S. economy . Running up the national debt to over $14 trillion—about equal to one year's GDP—Obama regards the approach of the debt limit as an opportunity for political gamesmanship and the time for a tax increase. And he shows no signs of stopping. He wants to spend, spend, and spend some more—unchecked by economic reality or, it appears at times, good sense. [ See a collection of political cartoons on the budget and deficit .]
The debt, and the inflation that is almost certain to follow, will destroy the value of what every parent has tried to build for their children and leave as a legacy. The payment of that debt, and the interest upon it, will approach levels once unfathomable—all of which will be placed upon the shoulders of our children and our grandchildren. They will, in turn, be forced to turn over the increasing portions of the fruits of their productivity to a federal bureaucracy that, after taking its cut, will be used to service the debt. This, too, is a form of slavery, where one man or group of men can lay claim to the product of an individual's labors in order to satisfy a debt the individual does not owe.
It is a frightening development, one that needs to be talked about in blunt language. As Ronald Reagan famously said, freedom is always one generation away from extinction. The institution of slavery, whether overt—as it was in the antebellum South—or covert, as it will be if the flood of red ink coming from Washington washes our economic liberties away, is always to be resisted as a violation of the basic rights of man. Cards need to be put on the table and seen for what they are so that every American can understand what it as stake, free of the platitudes and sloganeering emanating from those who would cheerfully bring it upon us.
A client of ours faced significant costs in cleaning up property contaminated by the operations of its tenants many years earlier. The client's former counsel who opined the pursuing claims against the tenants, who were mostly out of business, was not worth the time or money. Our investigation indicated otherwise. We learned that a tenant with a small scrap operation in the 1950s had changed names, and its business, through a series of transactions, was acquired by a large publicly traded company. Another tenant who was no longer doing business had significant insurance assets. After prosecuting the claims that our client was about to abandon, we recovered several million dollars to pay for the cleanup.
All too often businesses fail to recognize the value of claims against their own insurers as well as the claims against those who are primarily responsible for the contamination. Make no mistake, recovering the costs of an environmental cleanup is no easy task but, given the potential exposure, every business facing these liabilities should understand the potential value — and costs — in making an informed decision on whether to prosecute the claims.
Here are the highlights of what a business in this position should know:
Recovering costs from your historical insurers
There are two types of insurance that potentially cover the costs of cleaning up your property. The most common is comprehensive general liability (CGL) insurance, now commonly known as commercial general liability. CGL policies are occurrence-based policies. This means that coverage under the policies in place when the contamination first occurred, and each subsequent policy, are potentially triggered. There also more recent specialized pollution liability policies. (This article will focus on CGL policies because, if your business bought pollution liability policies to address specific environmental risks, you are probably already well aware of their potential coverage benefits.)
CGL policies provide coverage for your company's liability for “property damage,” which courts have construed to mean environmental contamination. But there are limitations.
The insurance industry began including the so-called “total” pollution in 1987, so you are searching primarily for pre-1987 CGL policies. CGL policies issued from 1972 to 1986 contained a limited pollution exclusion leaving coverage only for “sudden” pollution events. However, in our experience, most contamination was caused, at least in part, by events that were “sudden,” as courts have construed the term. Policies issued prior to 1972 typically have no pollution exclusion. Thus, older CGL policies can provide an important source of funding, provided that:
Prior to 1987, the contaminated property is one that was owned by your business (or by companies acquired by your business).
At least some of the contamination resulted from events occurring prior to 1987 — which is usually the case due to the relatively poor care in handling hazardous materials many years ago.
You may need help in finding older policies from your attorney or insurance archaeology services.
Importantly, coverage under CGL policies is generally not triggered in California, and some other states, unless there is a lawsuit against the insured. Government agencies prefer to use orders and other administrative mechanisms to enforce cleanup requirements. This is one time where a business may welcome the filing of a lawsuit.
There are a number of other potential limitations on coverage and you can expect insurers to try and take advantage of every one of them. In 25 years, I have yet to see an insurer pay for environmental cleanup costs without at least somewhat of a fight. It is important to have counsel on your side that knows how to win that fight quickly and cost-effectively.
Recovering costs from other responsible parties
The same laws that impose cleanup responsibility on owners of property simply because they are the owners also impose liability on others who owned or operated the property at the time the contamination occurred or who otherwise caused the contamination. Common law claims, such as trespass and nuisance, are also frequently available. In the case of tenants and former owners, look for contractual indemnities in the lease or purchase agreements that run in your favor.
A thorough investigation into the property's history, and the history of its tenants can usually identify who is likely responsible. Frequently, the businesses that caused pollution many years ago appear to be judgment proof: they may be defunct, dissolved or bankrupt and/or the individuals who ran them are deceased. And this is where even experienced environmental counsel often give up. That would be a mistake.
Most businesses operating after 1950 had CGL insurance and those insurers remain on the hook regardless of the status of their insured. A suit against those former businesses, even if they are dissolved our bankrupt, will trigger the obligations of the insurers. In addition, the environmental liabilities of former businesses may often reside with a person or entity with deeper pockets. Before you abandon your claims, make sure they have been carefully investigated and evaluated.
Choosing to pursue environmental cost recovery claims presents a difficult choice. Businesses are concerned about investing in the pursuit of claims where the outcome is usually far less than certain. Good environmental counsel is essential in evaluating the value of those claims and the likelihood of recovery. And counsel that has sufficient confidence in their evaluation may offer to share in the risk — and reward — by offering an alternative fee arrangement such as contingency fee. This may make your choice easier and help you avoid leaving valuable claims on the table.
David E. Cranston chairs Greenberg Glusker's Environmental Group and the Climate Change and Sustainability Practice Group. His broad-based experience ranges from the litigation of complex environmental disputes under CERCLA, RCRA, CEQA and the Clean Air Act to representation and counseling on regulatory and policy matters. He can be reached at DCranston@greenbergglusker.com or (310) 785-6897.
Candidate Statements
California law allows candidates running for a federal or state office to have a candidate statement included in the state Voter Information Guide, on the Secretary of State website, or in certain cases, in the voter information portion of the county sample ballot.
Statewide Candidates
Statewide candidates, who choose to keep their campaign spending under a specified limit, may purchase space in the state Voter Information Guide for a 250-word candidate statement (Government Code section 85601(a)). Statewide offices covered are Governor, Lieutenant Governor, Attorney General, Insurance Commissioner, Controller, Secretary of State, Treasurer, Superintendent of Public Instruction, and Board of Equalization (BOE).
Federal Candidates
The Secretary of State allows all qualified candidates running for President and Vice President of the United States to submit a 250-word candidate statement for inclusion on the state Voter Information Guide portion of the Secretary of State's website (Elections Code section 9084(k)). For more information, please contact vigfeedback@sos.ca.gov .
Candidates running for the United States Senate may purchase space for a 250-word statement in the state Voter Information Guide. The statement may not make any reference to any opponent of the candidate (Elections Code section 9084(i)).
Office
250-word
Candidate Statement Location
Primary/Special Election
General/Special Runoff Election
President and
Vice President
of the United States
Secretary of
State Website
N/A
N/A
United States Senate
State Voter
Information Guide
N/A
N/A
Candidate Intention Statement CALIFORNIA 501
FORM
Who Files:
A candidate for state or local office must fi le
this form prior to solicitation or receipt of any
contribution, or expenditure of any personal funds
used for the election.
You must fi le a separate Form 501 for each
election, including reelection to the same offi ce.
Exception: This form is not required if you will
not solicit or receive contributions from other
persons and the only expenditures will be from
your personal funds used for the fi ling fee and/or
statement of qualifi cations in the sample ballot or
ballot pamphlet.
Where to File:
File with the filing offi cer who will receive your
original campaign disclosure statements.
State Candidates:
Secretary of State
Political Reform Division
1500 11th Street, Room 495
Sacramento, CA 95814
Local Candidates:
Generally your county election offi ce or city
clerk.
When to File:
File the Form 501 before you solicit or receive any
contributions or before you make expenditures from
personal funds on behalf of your candidacy. This
form is considered fi led the date it is postmarked or
hand delivered.
How to Complete:
All candidates: Complete Parts 1 and 3.
Candidates for elective state office: Complete Parts
1, 2, and 3.
Exception: Candidates for an election to the
State Public Employees Retirement Board and the
Teachers’ Retirement Board do not complete Part 2.
Part 1. Candidate Information
• Enter your name and street address.
• Enter the title of the offi ce sought, agency name
and district number if any (e.g., City Council
member, City of Smalltown, Dist. 5), and political
party affiliation, if seeking a partisan office.
• Check the appropriate box regarding the offi ce’s
jurisdiction.
Part 2. Voluntary Expenditure Ceiling
This section applies to certain candidates for
elective state offices, including State Senate and
Assembly and statewide offi ces.
The voluntary expenditure ceiling applicable to
your offi ce is set forth in FPPC regulation 18545
and is published on the FPPC web site (www.
fppc.ca.gov). You must state whether you accept
or reject the expenditure ceiling. Candidates
who accept the voluntary expenditure limit will
be designated in either the state ballot pamphlet
(statewide candidates) or the voter information
portion of the sample ballot (Senate and Assembly
candidates) and may purchase space for a 250-
word statement there.
You may amend the Form 501 to change your
acceptance of rejection of the voluntary expenditure
ceiling only under the following circumstances:
• Between the date of fi ling an initial Form 501 for
an election and the deadline for fi ling nomination
papers for that election, you may amend your
statement of acceptance or rejection of the
voluntary expenditure ceiling no more than two
times.
• If you reject the voluntary expenditure ceiling
in the primary or special election but do not
FPPC Form 501 (April/2011)
FPPC Toll-Free Helpline: 866/ASK-FPPC (866/275-3772)
exceed the ceiling during that election, you may
amend the Form 501 to accept the expenditure
ceiling for the general or special runoff election
and receive all of the benefi ts accompanying
the acceptance of the expenditure ceiling. The
amended Form 501 must be fi led within 14 days
following the primary or special election.
Subsequent Election When Ceiling not
Exceeded:
If you reject the voluntary expenditure ceiling in the
primary or special election but do not exceed the
ceiling, you may accept the expenditure ceiling for
a subsequent general or special run-off election
and receive all the benefi ts accompanying such an
agreement. To do so, you must fi le an amended
Form 501 within 14 days following the primary or
special election.
Personal Funds Notifi cation:
You must disclose, if applicable, the date you
contribute personal funds to your own campaign
that exceed the expenditure ceiling. File an
amended Form 501 within 24 hours by guaranteed
overnight delivery or personal delivery.
Part 3. Verifi cation
Sign and date the form in ink. An unsigned
statement is not considered fi led.
This form was prepared by the Fair Political
Practices Commission (FPPC). For detailed
information on campaign reporting requirements
and the Information Practices Act of 1977, see the
FPPC Campaign Disclosure Manual (available from
your filing officer or the FPPC). Campaign filing
deadlines, forms, and other informational materials
are available on the FPPC website
(www.fppc.ca.gov).
COPPER, CADMIUM, AND ZINC; QAPP Information: QA Info Missing; Keswick dam to Cottonwood creek; Final Listing Decision: Delist from 303(d) list. JUNE 15, 2010;
What would you #AskObama? 07/05/2011 25 Received letter dated 07/01/11 from Iron Mountain Mines, Inc. pro se re: I will appreciate it if the court can recommend or refer a lawyer to me. [7807808] (RL)
Tomorrow's event has the White House all a-Twitter.
At 2pm EDT, President Obama will participate in the first Twitter town hall at the White House to discuss the economy and jobs with Americans across the country. The entire event will be streamed live at WhiteHouse.gov/live .
Right now, thousands of people are talking about the event and asking questions on Twitter, using the #AskObama hashtag. Take a moment to join the conversation and ask your own question.
Don't know what a Twitter hashtag is, or where to start? We've put together an overview of the event and a link to some more information about how to get started from Twitter here :
Don't forget: @ 2pm EDT tomorrow, head over to WhiteHouse.gov/live to watch President Obama and this exciting event.
P.S. If you are on Twitter and can't make the town hall tomorrow, take a moment to "follow" @WhiteHouse . It's a great way to stay current with what's happening in the Obama Administration. And if you'd like to contact the White House, but don't use Twitter, you can always use the form at WhiteHouse.gov/Contact .
Stay Connected
Forest and Farmland To Be Preserved Under EPA Settlement with Home Builder
Release date: 07/06/2011
Contact Information: John Martin (212) 637-3662, martin.johnj@epa.gov
(New York, N.Y.) The U.S. Environmental Protection Agency has reached an agreement with the homebuilder D.R. Horton, LLC for violations of federal regulations that protect against pollution from stormwater runoff. Under the agreement, D.R. Horton will pay a $99,000 penalty. The company will also pay $104,420 to The Land Conservancy of New Jersey to partially fund a 212-acre land acquisition and preservation project in Mount Olive, N.J. The land is undeveloped forest and farmland near the Raritan River that provides more than 1 million New Jersey residents with clean drinking water.
The land acquisition and preservation project contained in the settlement with D.R. Horton is an environmentally-beneficial project that a violator voluntarily agrees to undertake in partial settlement of violations. It must be a project that a violator would not otherwise be required to perform.
“Clean water is a vital natural resource and it is crucial that we reduce the pollution reaching our lakes, rivers and streams to protect people's health,” said EPA Regional Administrator Judith A. Enck. “Soil and pollutants carried by uncontrolled stormwater runoff can seriously damage our waterways. The settlement with D.R. Horton will reduce stormwater runoff and ensure that farm and forest will be preserved for future generations.”
Under the federal Clean Water Act, developers of sites one acre or larger are required to implement stormwater pollution prevention plans to keep soil and contaminants from running off into nearby waterways. The rate at which water carries soil and contaminants off of construction sites is typically 10 to 20 times greater than that from agricultural lands, and 1,000 to 2,000 times greater than those of forested lands.
EPA inspected D.R. Horton's Grande at Hanover construction site in Whippany, N.J. in October 2009 and discovered that the company had lacked the necessary stormwater discharge permits for the site since 2005. Stormwater ran off the Hanover site and into the Whippany River, possibly polluting the river. EPA also inspected D.R. Horton's Grande at Springville construction site in Mount Laurel, N.J. in October 2009 and found that the company had failed to obtain a permit for the site, perform required inspections of the site for eight months and submit environmental compliance reports and certifications from 2005 to 2008. As a result of EPA's inspections, the company improved its management of stormwater at the Hanover site, and both sites were brought into compliance with stormwater management regulations.
Establishing and adhering to stormwater pollution prevention plans at construction sites is required by the federal Clean Water Act. Routine inspections ensure that companies are properly managing stormwater runoff and are fully implementing their stormwater pollution prevention plans.
For more information about requirements of the Clean Water Act and how EPA protects the nation's water, visit http://www.water.epa.gov/ .
The Environmental Protection Agency is likely the most out-of-control, economically destructive and ideologically driven agency in the history of the United States.
Apparently unaware of the fact that the air in the U.S. is cleaner now than at any time in the last hundred years, or that the pollutants produced by burning fossil fuels have not been proved to contribute to global climate change, the agency is ready to unleash on the country two new rules that will create great pain for Americans, Americans that pay their own bills, that is.
A study by National Economic Research Associates (NERA) shows that these two rules will increase the cost of operation of electric utilities by $184 billion by 2030. Everyone who thinks electricity costs are too high already should think about that for a few minutes; electricity consumers will bear those costs, estimated at between 11 percent and 23 percent over the next few years.
Nicolas Lori of the Heritage Foundation predicts the new rules will force “utilities to file for significant rate hikes in years to come because of the upgrades they will have to make, or the complete shutdown of older plants.” We have just recently learned that American Electric Power has chosen to close or downsize 11 plants in seven states to avoid the costs that its customers would have to pay.
Worse than higher electricity rates, the NERA study predicts that these rules will kill 1.4 million jobs over the same period. Job loss caused by government action is always a bad thing, but is especially idiotic during a recovery so anemic that it doesn't look like a recovery at all.
However, as destructive as these two rules are, they're just the start. They are among 30 major regulations and more than 170 major policy rules the EPA has on tap that will increase utility costs, according to a study by the American Legislative Exchange Council.
A more recent development makes it clear that the EPA goes merrily along with little if any regard for the wreckage that follows many of its actions, like private sector jobs and economic productivity. Testifying before a subcommittee of the House Environment and Energy Committee, Assistant EPA Administrator Mathy Stanislaus revealed that the EPA really doesn't much care about whether the agency's actions will kill jobs, and sometimes or perhaps frequently doesn't even consider employment factors when devising regulatory schemes.
On the topic of recycling fly ash and other by-products of burning fossil fuels, when asked the likely results of implementing new rules on this activity, Mr. Stanislaus replied, “We have not directly taken a look at jobs in the proposal.”
“So what,” you might say. “How many jobs could be affected by more closely regulating how this waste is handled?” which, come to think of it, sounds a lot like how the EPA seems to view the situation.
As it turns out, however, the capitalist spirit is alive and well where disposing of fly ash is concerned: This waste material, rather than being dumped somewhere, is used productively to strengthen concrete and increase its useful life, to make wallboard stronger, and to make better roofing shingles, all of which involves people working.
The subcommittee is investigating whether or not the EPA is following the requirements of Executive Order 13563 signed by President Barack Obama last January requiring federal agencies to take job creation into account when they issue new rules. Specifically, the subcommittee questions whether the effect on jobs was properly considered in the April 2010 statement contained in the appendix of an analysis of proposed regulation under the Resources and Recovery Act dealing with fly ash, which said, “The [analysis] does not include either qualitative or quantitative estimation of the potential effects of the proposed rule on economic productivity, economic growth, employment, job creation or international economic competitiveness.”
Put another way, the EPA statement said, “The effect of this rule on jobs, productivity, or the economy is irrelevant, so long as fly ash is prohibited from being used productively.”
The Daily Caller news site recounted some of Mr. Stanislaus' testimony and answers to questions posed by Colorado Republican Rep. Cory Gardner. “Gardner's line of questioning had Stanislaus visibly dumbfounded, and he repeatedly told the congressman he would have to get back to him with the answers to his questions,” the Caller reported.
“I'd like to see a list of all of the rules that you have proposed that haven't taken into account jobs,” Rep. Gardner said. “We need to know if the EPA considers jobs in their analysis and whether you have, and whether EPA's position is to consider jobs when it does an economic analysis.”
The EPA loves to tell everyone else how to live, even when doing so causes pain, but it ignores orders that get in the way of its ideological agenda.
Such arrogant behavior by a government agency didn't originate with the Obama administration, but it has reached undreamed of heights since Barack Obama took office.
One cannot help wondering if anyone will be held to account for this failure to follow the president's direct order.
James H. “Smokey” Shott, a resident of Bluefield, Va., is a Daily Telegraph columnist.
The White House Office of the Press Secretary For Immediate Release June 13, 2011
Executive Order--Delivering an Efficient, Effective, and Accountable Government
EXECUTIVE ORDER DELIVERING AN EFFICIENT, EFFECTIVE, AND ACCOUNTABLE GOVERNMENT By the authority vested in me as President by the Constitution and the laws of the United States of America, and in order to cut waste, streamline Government operations, and reinforce the performance and management reform gains my Administration has achieved, it is hereby ordered as follows: Section 1. Policy. My Administration is committed to ensuring that the Federal Government serves the American people with the utmost effectiveness and efficiency. Over the last 2 years, we have made good progress and have saved taxpayer dollars by cutting waste and increasing the efficiency of Government operations by curbing uncontrolled growth in contract spending, terminating poorly performing information technology projects, deploying state of the art fraud detection tools to crack down on waste, focusing agency leaders on achieving ambitious improvements in high priority areas, and opening Government up to the public to increase accountability and accelerate innovation. The American people must be able to trust that their Government is doing everything in its power to stop wasteful practices and earn a high return on every tax dollar that is spent. To strengthen that trust and deliver a smarter and leaner Government, my Administration will reinforce the performance and management reform gains achieved thus far; systematically identify additional reforms necessary to eliminate wasteful, duplicative, or otherwise inefficient programs; and publicize these reforms so that they may serve as a model across the Federal Government. The implementation of the American Recovery and Reinvestment Act of 2009 (Public Law 111 5) (Recovery Act) has seen unprecedented transparency. The Recovery Accountability and Transparency Board (RATB) has developed innovative technologies and approaches for preventing and identifying fraud and abuse that have the potential to improve performance across all of Government spending. Sec. 2. Accountable Government Initiative. (a) On September 14, 2010, in a Memorandum to the Senior Executive Service, my Administration introduced goals for the Accountable Government Initiative (Initiative). The mission of the Initiative is to monitor and promote agency progress in making Government work better, faster, and more efficiently. To hold executive departments and agencies (agencies) accountable for obtaining results consistent with this mission, the Vice President shall convene periodic meetings in which Cabinet members and the Director of the Office of Management and Budget (OMB) report to him on improvements implemented under their direction. (b) The Federal Chief Performance Officer (CPO), who also serves as the Deputy Director for Management of OMB and the Chair of the President's Management Council (PMC), shall work with the PMC to support agencies' performance and management reform and cost cutting efforts. The CPO will lead OMB and the PMC in identifying practices that should be adopted across agencies and in facilitating reforms that require cross-agency coordination and cooperation. The CPO shall work with agencies to ensure that each area identified as critical to performance improvement has robust performance metrics in place, and that these metrics are frequently analyzed and reviewed by agency leadership. Agencies shall update these metrics quarterly, as appropriate, on the website performance.gov . (c) In accordance with the GPRA Modernization Act of 2010 (31 U.S.C. 1115 et seq.), each agency's Chief Operating Officer (COO) shall be designated as the Senior Accountable Official responsible for leading performance and management reform efforts, and for reducing wasteful or ineffective programs, policies, and procedures. In discharging this responsibility, this official shall be accountable for conducting frequent data driven reviews of agency progress toward goals in the areas that OMB identifies as being critical to performance improvement across agencies or that the agency head identifies as top near term priorities. These goals may include reforming information technology, reducing improper payments, leveraging the Federal Government's purchasing scale, reducing high risk contracting practices, improving the management of Federal real estate, enhancing customer service, and achieving agency and Federal Government priority goals identified pursuant to the GPRA Modernization Act of 2010. (d) The Director of OMB shall provide guidance to agencies as part of the Fiscal Year 2013 budget process for identifying areas of program overlap and duplication within and across agencies, and for proposing consolidations and reductions to address those inefficiencies. (e) The Chief Financial Officers (CFOs) at all agencies shall be responsible for achieving agency cost savings. This will include each agency's share of the $2.1 billion in administrative cost savings identified in my Fiscal Year 2012 Budget, and for achieving those savings as quickly as possible. The CFOs are encouraged to realize these cost savings by targeting wasteful practices and by reducing, and identifying alternatives to, discretionary travel, the use of consultants, and other administrative expenses. The Federal CFO Council shall provide a monthly report on these efforts to the PMC, with relevant findings and progress reported on performance.gov . Sec 3. Government Accountability and Transparency Board. (a) There is hereby established a Government Accountability and Transparency Board (Board) to provide strategic direction for enhancing the transparency of Federal spending and advance efforts to detect and remediate fraud, waste, and abuse in Federal programs. The Board shall be composed of 11 members designated by the President from among agency Inspectors General, agency Chief Financial Officers or Deputy Secretaries, a senior official of OMB, and such other members as the President shall designate. The President shall designate a Chair from among the members. Building on the lessons learned from the successful implementation of the Recovery Act, the Board shall work with the RATB to apply the approaches developed by the RATB across Government spending. (b) Not later than 6 months after the date of this order, the Board shall submit a report to the President that identifies implementation guidelines for integrating systems that support the collection and display of Government spending data, ensuring the reliability of those data, and broadening the deployment of fraud detection technologies, including those proven successful during the implementation of the Recovery Act. (c) The Director of OMB, in consultation with the Board, shall be responsible for assisting executive agencies in achieving objectives in the guidelines identified in subsection (b) above. (d) The Chair of the Board, in consultation with the Director of OMB, shall provide monthly updates to the Vice President on the progress obtained under this order. Sec. 4. General Provisions. (a) Nothing in this order shall be construed to impair or otherwise affect: (i) authority granted by law to a department or agency, or the head thereof; or (ii) functions of the Director of the Office of Management and Budget related to budgetary, administrative, or legislative proposals. (b) This order shall be implemented consistent with applicable law and subject to the availability of appropriations. (c) This order is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person.
BARACK OBAMA THE WHITE HOUSE,
June 13, 2011.
A Passionate Career.
A Voice for Change.
Vermont Law School is searching for environmental advocates who will devote their careers to protecting our most precious resource.
The online Master of Environmental Law and Policy is designed for both law and non-law students to truly understand the laws and policies shaping global environmental solutions. Vermont Law School prepares graduates to become agents of change in the environmental field by studying cutting-edge topics including climate change, energy, pollution prevention, natural resources protection, and land use.
"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 "
THE ARMAN MINES LOST HUMAN USE REMEDIATION AND RESTORATION TRUSTS ANNOUNCES PLANS FOR THE COMMUNITIES OF MINNESOTA, IRON MOUNTAIN, COPLEY MOUNTAIN, DEMOCRAT MOUNTAIN, SUGARLOAF MOUNTAIN, MAGEE, CAMDEN, SALLEE, CORAM, VOBIS, WHITEHOUSE, KESWICK, MATHESON, NOBLE, SCOTT, LAWSON, RICHMOND, TAYLOR, MOTION, KEYSTONE, MOCOP, CROWN POINT, SPRING CREEK, FLAT CREEK, BOULDER CREEK, SLICKROCK CREEK, SOUTHFORK CREEK, BATTLE CREEK, BUENAVENTURA RIVER, CHAPPIE-SHASTA, BRANDEIS, AND SO FORTH. THE COMMUNITIES WILL FEATURE THE LATEST AMMENITIES IN SUSTAINABLE LIVING WITH FENCED AND RAISED VEGETABLE GARDENS FOR EVERY YARD AND NON-SEPTIC WASTE DISPOSAL, WATER, COMPLETE SOLAR-BATTERY INDEPENDENCE, WITH ASSISTANCE AND TRANSPORTATION FOR SENIORS, DISABLED, VETERANS, WIDOWS & ORPHANS, AND NON-FLAMMABLE AND EARTHQUAKE RESISTANT CONSTRUCTION WITH PRECAST CONCRETE FROM MINING WASTE ROCK, MINE TAILINGS, & DRAINAGE. THE ARMAN MINES INSTITUTE DEVELOPS SOIL RESTORATION INITIATIVES AND PROVIDES REMINERALIZATION OF SOIL FOR HUMAN FOOD CROPS & FARMLAND. SUMMARY OF IRON MOUNTAIN MINES PRIVATE SUPERFUND TRUSTS IRON MOUNTAIN MINES AIG - EPA -DOJ SUPERFUND CLEANUP REMEDIATION FUNDS $336,706,450 + $93,590,773 = $430,297,223 PAYABLE TO BEGIN SUPERFUND REMEDIATION
Since 2009 - Mr. T. W. Arman, mistaken for 'ARMAN' aka "TWO MINERS AND 103 MILLION ACRES OF LAND" fka - Iron Mountain Mines; the Arman Mines Ministries of Natural & Mineral Resources Federation, the Arman Mines Institute, the Hummingbird Institute, the College of the Hummingbird, Arman Mines Iron Mountain Railway, Arman Mines Iron Mountain Tramway, Arman Mines Iron Mountain Road, Arman Mines Iron Mountain Airport, THE HUNDREDS OF THE ARMANSHIRE, NATIVE PIGMENTS, ARMAN PIGMENTS, AMD&CSI, IMMI, HU/MOUNTAIN, ARMAN MINES MINISTRY OF NATURAL RESOURCES, THE ARMAN MINES MINISTRY OF MINERAL RESOURCES FEDERATION, THE ARMAN LOST HUMAN USE REMEDIATION AND RESTORATION TRUSTS, THE ARMAN MINERALS RESOURCE DEFENSE COUNCIL, THE GUYS OF JUSTICE, THE ARMAN MINES MINISTRY OF MINING & PRINCIPLES OF PIGMENTS; THE ARMAN MINES HAZARD AND REMEDIATION DIRECTORATE, THE ARMAN MINES DISASTER ASSISTANCE DIRECTORATE, AND THE ARMAN MINES HUMMINGBIRD INSTITUTE COLLEGE OF THE HUMMINGBIRD CENTER FOR HEALTH INSTITUTE FOR LIBERTY AND INDEPENDENCE.
Mr. T.W. Arman , proprietor, Iron Mountain Mines, Inc., & 'ARMAN ' (for A rchaeal R ichmond M ine A cidophilic N anoorganisms) All the rights, privileges, and immunities of the Camden and Magee Military Scrip Warrants for the United States of America State of California Morrill Act University of California San Buena Ventura Agricultural College Patent. May 1, 1862 - President Abraham Lincoln - Charles Camden - William Magee - Iron Mountain Investment Co. - United States of America Lode and Placer Mining Patents, Arman Mines Apex Relocations, Apex Discoveries, and Apex mining law applications, Arman Mines Flat Creek mining district vested and accrued existing rights of the locators of the Lost Confidence Mine, &c; their successors and assigns, (Ted Arman) and to their and their heirs and assigns and successors use and behoof, forever.
TO HAVE AND TO HOLD said mining premises, together with all the rights, privileges, immunities, and appurtenances of whatsoever nature thereunto belonging, unto the said grantee above named and to its successors and assigns forever; subject, nevertheless, to the above-mentioned and to the following conditions and stipulations: FIRST . That the premises hereby granted shall be held subject to any vested and accrued water rights for mining, agricultural, manufacturing, or other purposes, and rights to ditches and reservoirs used in connection with such water rights, as may be recognized and acknowledged by the local laws, customs, and decisions of the courts. And there is reserved from the lands hereby granted a right of way thereon for ditches or canals constructed by the authority of the United States. SECOND . That in the absence of necessary legislation by Congress, the Legislature of California may provide rules for working the mining claim or premises hereby granted, involving easements, drainage, and other necessary means to its complete development
Since 1849 - Flat Creek Mining District
Since May 1, 1862 - Camden & Magee Agricultural College, Military Scrip Warrant Freehold Estate; 360 acres of land in lieu of Rancho Buenaventura grant patent title, President Abraham Lincoln - Morrill Land-Grant Colleges Act 1844 Mexican Land Grant and Bounty Warrants prior rights; Perdido Californio Bosque del Norte
Since Janurary 4, 1875 - Shasta County Recorder; Morrill land grant Act of Congress - Camden & Magee University of California Agricultural College Patent by Governor Newton Booth. Since April 8, 1880 - Lost Confidence Mine, Camden & Magee; Bears Den et al lode Mining Claims.
Since 1895 - Mountain Copper Co. Ltd., Iron Mountain Investment Co. 2898 ACRES OF LAND (Jardine Matheson/ Rothschilds/ Keswick, et al), Iron Mountain Investment Co. The Noble, Scott, &c. Since 1967 - Stauffer Chemical Co., (AstraZeneca, Bayer Crop Sciences et al), Responsible Parties/
Since 1976 - Iron Mountain Mines, Inc., Innocent landowner, operator - T.W. Arman Since 2001 - Essential Solutions, Inc. Agricultural & Horticultural Products Research.
Since 2008 - Hu/Mountain jv Relocation, Remission, Reversion, Remainder, &c.
Governor Micheltorena and John Sutter , his alcalde granted Rancho Buena Ventura to Pierson B. Reading (listed as Pearson B. Reading in the land case documents) in 1844. Reading, who was at that time working for John Sutter at Sutter's Fort in Sacramento as a clerk and trapper, visited the land grant but did not move onto it. He stocked the land with cattle and built a house for his overseer but it was burned down by natives in 1846. Reading was active in promoting the Bear Flag Revolt of 1846. After serving as an artillery lieutenant then as paymaster at the rank of major in a battalion led by John C. Frémont , he built a permanent adobe dwelling and settled on his grant in 1847 He became the second (after Lansford Hastings ) permanent settler of what was to become Shasta County With the cession of California to the United States following the Mexican-American War , the 1848 Treaty of Guadalupe Hidalgo provided that the land grants would be honored. As required by the Land Act of 1851, a claim for Rancho Buena Ventura was filed with the Public Land Commission in 1852 The US appealed the claim on the grounds that Reading was not a Mexican citizen In 1854 Reading went to Washington, D.C. for the hearing before the US Supreme Court on his land grant claims. There he met and married Fanny Wallace Washington. The claim was upheld by the Supreme Court and the grant was patented to Pearson B. Reading in 1857. The first land sale was made in 1853. By 1866, over 5,000 acres (20.2 km 2 ) of the land grant was sold. In 1866, Reading borrowed from the estate of his longtime friend Samuel J. Hensley, using the remaining rancho lands as collateral. After Reading's unexpected death in 1868, the remaining rancho lands were sold to James Ben Ali Haggin at public auction in 1871 to satisfy the unpaid debt. After the auction, the only remaining land from the original land grant was the one square mile (640 acres (2.6 km 2 )) Washington section purchased by Fanny Washington's mother. William Magee was the U.S. deputy surveyor for Shasta County. He served as caretaker for Reading. Charles Camden was the most successful miner in Shasta County, he bought and sold much of the land at the Rancho, 800 acres for Military Scrip Warrants (U.S. Patent Title), They were partners. Under their rights of Pre-emption The U.S. Land Office at Marysville granted 360 acres of land on Iron Mountain in lieu of land in the Rancho Buena Ventura. Mining was insignificant until James Sallee discovered a seam of silver in the ore and the Lost Confidence Mine was recorded April 8, 1880.
EPA To Hold Listening Sessions on Potential Revisions to Water Quality Standards Regulation
07/30/2010 Contact Information: Dave Ryan Ryan.dave@epa.gov 202-564-7827 202-564-4355 WASHINGTON - The U.S. Environmental Protection Agency (EPA) will hold two public listening sessions on potential changes to the water quality standards regulation before proposing a national rule. The current regulation, which has been in place since 1983, governs how states and authorized tribes adopt standards needed under the Clean Water Act to protect the quality of their rivers, streams, lakes, and estuaries. Potential revisions include strengthening protection for water bodies with water quality that already exceeds or meet the interim goals of the Clean Water Act; ensuring that standards reflect a continued commitment to these goals wherever attainable; improving transparency of regulatory decisions; and strengthening federal oversight.
Water quality standards are the foundation of the water quality-based approach to pollution control, including Total Maximum Daily Loads and National Pollutant Discharge Elimination System permits. Standards are also a fundamental component of watershed management.
The public listening sessions will be held via audio teleconferences on August 24 and 26, 2010, from 1 p.m. to 2:30 p.m. EDT. At the sessions, EPA will provide a review of the current regulation and a summary of the revisions the agency is considering. Clarifying questions and brief oral comments (three minutes or less) from the public will be accepted at the sessions, as time permits. EPA will consider the comments received as it develops the proposed rulemaking. EPA will also hold separate listening sessions for state, tribal and local governments. According to the state supreme court, "[i]t is misconduct... to elicit or attempt to elicit inadmissible evidence... Because we consider the effect of the prosecutor's action on the defendant, a determination of bad faith or wrongful intent by the prosecutor it is not required for a finding of prosecutorial misconduct." ( People v. Crew (2003) 31 Ca) The role of the prosecutor differs significantly from that of others who practice law, including criminal defense lawyers.
" A Prosecutor is held to a standard higher than that imposed on other attorneys because of the unique function he or she performs in representing the interests, and in exercising the sovereign power, of the state. ... the prosecutor represents "a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall 'win a case,' but that justice shall be done." ( Berger v. United States (1935) 295 U.S. 78, 88.)' " ( People v. Hill (1998) 17 Cal.4th 800, 820.)
"Prosecutors have a special obligation to promote justice and the ascertainment of truth. ... 'The duty of the attorney general is not merely that of an advocate. His duty is not to obtain convictions, but to fully and fairly present... the evidence...' " ( People v. Kasim (1997) 56 Cal.App.4th 1360, 1378.) "The prosecutor's job isn't just to win, but to win fairly, staying well within the rules." (United States v. Kojayan (9th Cir. 1993) 8 F.3d 1315, 1323.) "As an officer of the court, the prosecutor has a heavy responsibility... to the court and to the defendant to conduct a fair trial ..." (United States v. Escalante (9th Cir. 1980) 637 F.2d 1197, 1203.) Federal decisions addressing void state court judgments include ( Kalb v. Feuerstein (1940) 308 US 433, 60 S Ct 343, 84 L ed 370; Ex parte Rowland (1882) 104 U.S. 604, 26 L.Ed. 861:) "A judgment which is void upon its face, and which requires only an inspection of the judgment roll to demonstrate its wants of vitality is a dead limb upon the judicial tree, which should be lopped off, if the power to do so exists." ( People v. Greene, 71 Cal. 100 [16 Pac. 197, 5 Am. St. Rep. 448].) "If a court grants relief, which under the circumstances it hasn't any authority to grant, its judgment is to that extent void." (1 Freeman on Judgments, 120-c.) An illegal order is forever void. Decision is void on the face of the judgment roll when from four corners of that roll, it may be determined that at least one of three elements of jurisdiction was absent: (1) jurisdiction over parties, (2) jurisdiction over subject matter, or (3) jurisdictional power to pronounce particular judgment that was rendered, ( B & C Investments, INc. v. F & ; M Nat. Bank & ; Trust , 903 P.2d 339 (Okla. App.Div 3, 1995). "Court must prove on the record, all jurisdiction facts related to the jurisdiction asserted." ( Latana v. Hopper, 102 F. 2d 188; Chicago v. New York 37 F Supp. 150) 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 ABUSE OF DISCRETION : A failure to take into proper consideration the facts and law relating to a particular matter; an Arbitrary or unreasonable departure from precedent and settled judicial custom. The human condition, which can be ignorance and fallibility -- especially for those in authority, perhaps deceived by their own, as Shakespeare says, "insolence of office" -- is what makes the presumption of innocence a good principle, if it is put into practice, for it is the basis for the protection of the innocent, allowing for the lay citizen to have the protection of the law beyond their own familiarity or understanding of it.
A judge is mandated to report attorneys for misconduct: Cal. Bus. & Prof. Code § 6086.7(a)(2). The State Bar sends out a letter each year reminding judges of the statutory requirements. California Code of Judicial Ethics: Currently, the code directs a judicial officer to "take appropriate corrective action whenever information surfaces that a lawyer has violated ethical duties." ( Cal. Canons of Jud. Ethics, Canon 3D(2).) and, ABA Model Rule 3.8, covers the conduct of prosecutors.
Judges have the option to hold those responsible in prosecutorial misconduct in contempt of court -- and to impose upon them fines, or even temporary imprisonment. "Attorneys should be disciplined for conduct that violates clearly established law, or conduct so outrageous that its illegality is obvious," MANUFACTURED JURISDICTION: "the circumstances relied upon to establish federal jurisdiction over the offenses charged were artificially created by the Government in an attempt to exceed the proper scope of federal law enforcement." 501 F.Supp. at 1205. Neil Barofsky, the special inspector general for TARP says that Treasury Secretary Timothy Geithner is "ultimately responsible"
Vetitum tempus clausum, conditio servilis, vis et metus
There exist additional cases which involve direment (invalidating) impediments. If an undispensed impediment is present at the time of the marriage, the marriage is invalid. These impediments are:
Lack of required Age (c. 1083) Crime (c. 1090)
Impotence (c. 1084) Consanguinity (c. 1091)
Disparity of Worship (c. 1086) Affinity (c. 1092)
Sacred Orders (c. 1087) Public Propriety (c. 1093)
Public, Perpetual Vow of Chastity (c. 1088) Legal Relationship from Adoption (c. 1094)
Abduction (c. 1089)
ACTS OF THE CASE - The Acts of the Case include all of the Testimony, Records, Briefs, and Reports submitted for review by the Court for a particular case.
ADVOCATE -Both the Petitioner and Respondent are to be informed of their right to be assisted by an Advocate. The Advocate is to be chosen from the Tribunal's Approved List of Advocates. This list is reviewed periodically. These Advocates have received more specialized training by following the « Diploma Course of Studies in Canonical Marriage Cases , Jurisprudence and Procedures » , which was set up by the Maltese Episcopal Conference under the auspices of the Maltese Metropolitan Tribunal. This Advocate will review materials received and provide some direction to the party regarding their case
AFFIRMATIVE DECREE - Also known as a Decree of Executivity. A Formal Case must have two (2) Affirmative Decisions on the same Grounds in order for the two (2) parties of the previous union to be free to marry in the Church, unless either or both are prohibited from doing so by the imposition of a Vetitum by the Tribunal. An Affirmative Decree is only issued after the two (2) Affirmative Decisions have been obtained.
ANNULMENT - The English vernacular word that is used to refer to a Declaration of Invalidity given by a Tribunal as a consequence of a formal, Ecclesiastical trial regarding the bond of marriage.
ASSESSOR - A person appointed by the Presiding Judge to consult with him in summarizing the Acts of the Case and in proposing an argument for evaluating the Acts (c. 1424).
AUDITOR - The Presiding Judge can designate an auditor from one of the persons approved by the Archbishop to instruct the case. The Auditor is only to collect the proofs and hand those collected over to the Judge. The Auditor can decide what proofs are to be collected and in what manner (c. 1428). The Metropolitan Tribunal of Malta employs a number of lay auditors.
COMPETENCE - Just as in a Civil Case, there is an issue as to which Tribunal has competence to hear the case. Competence is laid down in CIC 1983 canon 1673: “In cases concerning the nullity of marriage which are not reserved to the Apostolic See, the following are competent: 1o the tribunal of the place in which the marriage was celebrated; 2o the tribunal of the place in which the respondent has a domicile or quasi-domicile; 3o the tribunal of the place in which the petitioner has a domicile, provided that both parties live in the territory of the same conference of bishops and the judicial vicar of the domicile of the respondent gives consent after he has heard the respondent; 4o the tribunal of the place in which in fact most of the proofs must be collected, provided that consent is given by the judicial vicar of the domicile of the respondent, who is first to ask if the respondent has any exception to make.”
CONFIRMATION - A Confirmation by a Second Instance Court must be made for any First Instance Affirmative Decision in a Formal Case before the parties are free to marry.
COURT EXPERT - The Court Expert is a professional in a specialized field who is appointed by the judge in a case to provide professional review of the Marriage. Generally, the Court Expert is a professional in the field of Psychology or Psychiatry.
DECLARATION OF INVALIDITY - A finding given by a competent Ecclesiastical authority asserting that, while there may have been a marital relationship, there was no canonical bond of marriage. A Formal Case must have two (2) Affirmative Decisions on the same Grounds in order for the two (2) parties of the previous union to be free to marry in the Church. A Declaration of Invalidity is only issued after the two (2) Affirmative Decisions have been obtained.
DEFENDER OF THE BOND - The Defender of the Bond is appointed by the Archbishop. The Defender reads the testimony and proposes everything, which reasonably can be brought forth against invalidity (c1432). The Defender does not pass judgment on the case but provides the judge(s) with an overview as why the marriage appears to be a valid bond.
FIRST INSTANCE COURT - The initial Court hearing the case is considered the Court of First Instance. The Maltese Metropolitan Tribunal is the First Instance Court.
FIRST INSTANCE DECISION - The Decision reached by a First Instance Court on a Formal Case. If this decision is Affirmative, the decision must be confirmed by a Second Instance Court.
GROUNDS - A Petitioner asks that the Church Court declare his/her marriage invalid based on specific grounds under Church Law. The Canonical Advisor will assist the Petitioner in formulating these grounds.
JUDGE - A Collegiate Court is made up of three (3) judges, two of whom must be priests and/or deacons. The third Judge can be a lay man or woman. All Judges are appointed by the Archbishop.
JUDICIAL VICAR - The Judicial Vicar of the Metropolitan Tribunal is a priest and has the responsibility for the proper application of Church Law. The Judicial Vicar is appointed to office by the Archbishop.
LACK OF FORM - An examination of the bond of marriage based on the possible non-observance of the required canonical form or the required sacred ritual for members of the Catholic or Orthodox Churches. Though this examination is a non-judicial procedure, the Tribunal still requires the Petitioner to provide all necessary documentation for the process.
LIGAMEN - A judicial procedure regarding the bond of marriage based on the possible impeding existence of an earlier, prior valid bond on the part of one of the parties, generally the Respondent.
PAULINE PRIVILEGE - Dissolution of a valid, non-sacramental, natural bond of marriage by the Archbishop as a favour of the faith of two non-baptized persons (the party desires baptism and a new marriage in the Church).
PETITION (LIBELLUS): The Canonical Advisor will assist the Petitioner in drafting a Petition to the Tribunal specifying the grounds of Church Law to be investigated to show Invalidity for the marriage in question.
PETITIONER - The party who is requesting the Catholic Church to issue a Declaration of Invalidity regarding this marriage.
PETRINE PRIVILEGE - Dissolution of a valid, non-sacramental, natural bond of marriage of a baptized person and a non-baptized person by the Roman Pontiff as a favour of the faith in certain, specified cases.
PROHIBITION (VETITUM) - Once an Affirmative Decision is reached by two Courts, a Decree is issued specifying that the particular marriage investigated is invalid and so is no longer an impediment to a future marriage in the Church. If the Second Instance Court confirms a Prohibition on a future marriage on either or both of the parties, the Decree will provide this information along with instructions on what is required to start the process to have the Prohibition lifted. A priest or deacon is not free to witness a future marriage until the Prohibition is lifted.
RESPONDENT - Once one of the parties to a marriage has submitted a case to the Tribunal, their previous spouse has rights in the process. The Respondent may or may not support the petition. The Tribunal is required by Law to invite the Respondent to participate in the trial. The Respondent is not the "defendant" in the proceedings as the Church seeks always to defend the bond of marriage.
SECOND INSTANCE COURT - The second Court hearing the case is called the Court of Second Instance. This Court is necessary for all Formal Cases receiving an Affirmative Decision by a First Instance Court. This is the Regional Tribunal of Second Instance.
SENTENCE - The judge(s) in each case write(s) a Sentence describing the situation found in the testimony supporting the decision reached.
WARNING ( MONITUM ) - Once an Affirmative Decision is reached by two Courts, a Decree is issued specifying the particular marriage investigated is no longer an impediment to a future marriage in the Church. If the Second Instance Court confirms a Monitum on a future marriage on either or both of the parties, the Decree will provide this information. A priest or deacon is not free to witness a future marriage of any party with a Monitum until the priest or deacon has completed a thorough investigation of that party's understanding and freedom to marry.
WITNESSES - The Petitioner must provide a list of witnesses to furnish testimony regarding the marriage and parties involved. The Respondent is free to have witnesses cited on his/her behalf as well. The Defender and/or the Instructing Judge may also cite witnesses based on testimony received to provide clarification to points raised. These witnesses are to offer testimony regarding the marriage, with special emphasis on their personal knowledge of the person(s) during the courtship and early years of the marriage.
Date Filed: 04/20/2009 Date Disposed: 07/28/2009 Disposition: Denied - Judge Order
Current Cases:
None
UNITED STATES OF AMERICA
Plaintiff - Appellee,
Larry Corcoran, Esquire, Assistant U.S. Attorney
Direct: 202-305-0370
[COR LD NTC Assist US Attorney]
DOJ - U.S. DEPARTMENT OF JUSTICE
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 LD NTC Assist US Attorney]
USSAC - OFFICE OF THE U.S. ATTORNEY
Suite 10-100
501 I Street
Sacramento, CA 95814
Joan M. Pepin
Direct: 202-305-4626
[COR LD NTC Government]
DOJ - U.S. DEPARTMENT OF JUSTICE
Environment & Natural Resources Division
P.O. Box 23795, L'Enfant Plaza Station
Washington, DC 20026-3795
STATE OF CALIFORNIA, On behalf of the California Department of Toxic Substances Control and the California Regional Water Quality Control Board for the Central Valley Region
Plaintiff - Appellee,
Margarita Padilla, Supervising Deputy Attorney General
Direct: 510-622-2135
[COR LD NTC Dep State Aty Gen]
AGCA - OFFICE OF THE CALIFORNIA ATTORNEY GENERAL (OAKLAND)
20th Floor
1515 Clay Street
Oakland, CA 94612-0550
Russell B. Hildreth
Direct: 916-327-7853
[COR NTC Dep State Aty Gen]
AGCA - OFFICE OF THE CALIFORNIA ATTORNEY GENERAL (SAC)
1300 I Street
P.O. Box 944255
Sacramento, CA 94244-2550
v.
RHONE-POULNEC BASIC CHEMICALS COMPANY
Defendant-cross-claimant - Appellee,
Matthew W. Powell, Esquire, Attorney
Direct: 916-441-2430
[COR LD NTC Retained]
WILKE FLEURY HOFFELT GOULD & BIRNEY
22nd Floor
400 Capitol Mall
Sacramento, CA 95814
Thomas G. Redmon, Esquire, Attorney
Direct: 916-441-2430
[COR LD NTC Retained]
WILKE FLEURY HOFFELT GOULD & BIRNEY
22nd Floor
400 Capitol Mall
Sacramento, CA 95814
IRON MOUNTAIN MINES, INC.
Defendant - Appellant,
Iron Mountain Mines, Inc.
Direct: 530-275-4550
[NTC Pro Se]
P.O. Box 992867
Redding, CA 96099
T. W. ARMAN
Defendant - Appellant,
T. W. Arman
Direct: 530-275-4550
[NTC Pro Se]
P.O. Box 992867
Redding, CA 96099
BAYER CROPSCIENCE INC.'S, FKA Aventis CropScience USA, Inc.
Defendant-counter-claimant - Appellee,
Matthew W. Powell, Esquire, Attorney
Direct: 916-441-2430
[COR LD NTC Retained]
(see above)
Thomas G. Redmon, Esquire, Attorney
Direct: 916-441-2430
[COR LD NTC Retained]
(see above)
UNITED STATES OF AMERICA; STATE OF CALIFORNIA,
On behalf of the California Department of Toxic Substances
Control and the California Regional Water Quality Control
Board for the Central Valley Region,
Plaintiffs - Appellees,
v.
IRON MOUNTAIN MINES, INC.; T. W. ARMAN,
Defendants - Appellants,
and
RHONE-POULNEC BASIC CHEMICALS COMPANY,
Defendant-cross-claimant - Appellee,
BAYER CROPSCIENCE INC.'S, FKA Aventis CropScience USA, Inc.,
DOCKETED CAUSE AND ENTERED APPEARANCES OF COUNSEL. SEND MQ: Yes. The schedule is set as follows: Mediation Questionnaire due on 02/23/2011. Transcript ordered by 03/16/2011. Transcript due 04/15/2011. Appellant T. W. Arman and Appellant Iron Mountain Mines, Inc. opening brief due 05/25/2011. Appellee Bayer Cropscience Inc.'s, Appellee Rhone-Poulnec Basic Chemicals Company, Appellee State of California and Appellee United States of America answering brief due 06/24/2011. Appellant's optional reply brief is due 14 days after service of the answering brief. [7650693] (RT)
Filed (ECF) Appellees Bayer Cropscience Inc.'s and Rhone-Poulnec Basic Chemicals Company corporate disclosure statement. Date of service: 03/09/2011. [7673671] (MWP)
03/09/2011
8
Attorney Sara J. Russell in 11-15383 substituted by Attorney Russell B. Hildreth in 11-15383 [7673675] (MT)
Filed (ECF) Appellees Bayer Cropscience Inc.'s and Rhone-Poulnec Basic Chemicals Company Motion to dismiss for lack of jurisdiction. Date of service: 03/09/2011. [7674036] (MWP)
Filed (ECF) Appellees Bayer Cropscience Inc.'s and Rhone-Poulnec Basic Chemicals Company Motion for sanctions. Date of service: 03/09/2011. [7674081] (MWP)
Filed (ECF) Appellees Bayer Cropscience Inc.'s and Rhone-Poulnec Basic Chemicals Company response opposing motion (,motion to withdraw as counsel). Date of service: 03/09/2011. [7674132] (MWP)
Filed (ECF) Appellees Bayer Cropscience Inc.'s and Rhone-Poulnec Basic Chemicals Company Corrected Motion to dismiss for lack of jurisdiction. Date of service: 03/09/2011. [7674164] (MWP)
Filed (ECF) Appellees State of California and USA response supporting motion (,motion to dismiss for lack of jurisdiction). Date of service: 03/21/2011. [7688265] (JMP)
Filed (ECF) Appellees Bayer Cropscience Inc.'s and Rhone-Poulnec Basic Chemicals Company Stipulated Motion for miscellaneous relief [Stipulated Motion and Proposed Order Amending Notice of Appeal ]. Date of service: 03/31/2011. [7700600] (MWP)
Filed (ECF) Appellees Bayer Cropscience Inc.'s and Rhone-Poulnec Basic Chemicals Company Correspondence: Letter re Stipulated Motion and Proposed Order. Date of service: 03/31/2011 [7700607] (MWP)
Filed order (Appellate Commissioner) The stipulated motion to amend the notice of appeal filed on February 14, 2011 (the “Stipulated Motion”) is granted. The reference to “the orders made December 8, 2000, relating to the consent decree, including the order dismissing defendants' cross-claims” is deleted from the notice of appeal. Pursuant to the Stipulated Motion, appellee Bayer Cropscience Inc.'s (“Bayer”) motion to dismiss, motion for sanctions, and opposition to appellants' motion to withdraw as counsel, and the joint response in support of Bayer's motion to dismiss filed by appellees State of California and the United States are deemed withdrawn. The motion of appellants' retained counsel, William A. Logan, Esq. and Logan and Giles LLP, to withdraw as retained counsel of record is granted. The Clerk shall amend the docket to reflect the following address for appellants T.W. Arman and Iron Mountain Mines, Inc.: P. O. Box 992867, Redding, CA 96099, (530) 275-4550. A corporation must be represented by counsel. See In re Highley, 459 F.2d 554, 555 (9th Cir. 1972). Within 28 days after the date of this order, appellants Iron Mountain Mines, Inc.'s new counsel shall file a notice of appearance with the court. A new briefing schedule shall be established upon compliance with this order. Failure to comply with this order shall result in the automatic dismissal of the appeal by Iron Mountain Mines, Inc. by the Clerk for failure to prosecute. See 9th Cir. R. 42-1. (MOATT) [7718808] (DEV)
Terminated William A. Logan Jr. for Iron Mountain Mines, Inc. and T. W. Arman in 11-15383, Anthony Giles for Iron Mountain Mines, Inc. and T. W. Arman in 11-15383 [7718868] (DEV)
Filed order MOATT: (MT) The court is in receipt of appellant Iron Mountain Mines, Inc.'s (“Iron Mountain”) correspondence dated May 13, 2011. Iron Mountain's request for a 30-day extension of time, contained therein, to comply with the court's April 15, 2011 order is granted. Iron Mountain's new counsel shall file a notice of appearance with the court on or before June 13, 2011. A new briefing schedule shall be established upon compliance with this order. Failure to comply with this order shall result in the automatic dismissal of the appeal by Iron Mountain by the Clerk for failure to prosecute. See 9th Cir. R. 42-1. [7760065] (KD)
Filed order MOATT: (MT) Iron Mountain's request for an extension of time, contained therein, to comply with the court's April 15, 2011 order is granted. Iron Mountain's new counsel shall file a notice of appearance with the court on or before July 15, 2011. A new briefing schedule shall be established upon compliance with this order. Failure to comply with this order shall result in the automatic dismissal of the appeal by Iron Mountain by the Clerk for failure to prosecute. See 9th Cir. R. 42-1. [7786139] (TSP)
Received Appellant T. W. Arman letter dated 06/07/2011 re: notice of payment and askinf for a refund from the EPA for the remaining damages cause by the EPA's wrongful conduct as follows.. [7793252] (MT)
Received letter dated 07/01/11 from Iron Mountain Mines, Inc. pro se re: I will appreciate it if the court can recommend or refer a lawyer to me. [7807808] (RL)
We believe everyone should expect to have safe water every day. And we want to help them in reaching that goal, for every family, every clinic and every school in the regions and districts where we work. Water For People brings together local entrepreneurs, civil society, governments, and communities to establish creative, collaborative solutions that allow people to build and maintain their own reliable safe water systems. Empowering everyone transforms people's lives by improving health and economic productivity to end the cycle of poverty.
Local ownership is essential to the ambitious plan of reaching everyone, forever. Financial and resource investment in solutions by the government, community organizations, local businesses, and community members will help to ensure there are sufficient resources for implementation, maintenance, and expansion of systems. Here's why:
First, by requiring cofinancing from our local communities, government, and partners, Water For People helps to instill local financial responsibility and ownership in safe water and sanitation solutions.
Second, collective investment allows Water For People to impact more people with one project, moving us closer to reaching Everyone without growing our footprint.
Here's an example of how it worked in Cuchumuela, Bolivia:
With leadership from Water For People–Bolivia, Cuchumuela's communities and government came together, organized as a group, identified their greatest needs, and decided how much they could afford for new water and sanitation systems. And when it came time to make their financial investments, Water For People was there too, providing funds as part of its cofinancing approach to water and sanitation development.
Through this process, Cuchumuela marshaled great community buy-in and strengthened their financial capacity through a new water-use tariff system to manage the inevitable maintenance and expansion problems. "At first, the municipal sanitation unit had no equipment or facilities, and I was the only staff person,” says Elvis Rivero Robles, Cuchumuela's Director of Basic Sanitation. “Partnerships and shared investment became a very important strategy for us, and through this, Cuchumuela will be intent on protecting its hard work to build and maintain its water and sanitation systems.”
The success of Cuchumuela reveals the power of leveraging local partner investment so that communities and municipalities begin important development work and have tangible ownership of their new infrastructure.
World population is expected to reach 9 billion by 2050. Already, 884 million people lack access to safe drinking water and 2.6 billion lack adequate sanitation facilities. With today's urgency to solve safe water issues, there is too much emphasis on immediate reactions and short-term fixes. Sustainable water and sanitation solutions require time, creativity, and innovation. Let's work together to build a lasting future. Join Water For People in championing a new movement. Sign the commitment . The Everyone Commitment From ambitious missions to real, strategic implementation, Everyone allows all people everywhere to:
Access clean, safe water
Keep water flowing and latrines useful
Identify and maintain new, sustainable solutions
Extending from the community to state and national levels, Everyone supports the right systems, financing, and capacity infrastructure for true, long-term solutions. Using these principles and working together, we can shift the international water and sanitation development sector to success.
Everyone in the regions where we work has access to water and sanitation. Even the hardest to reach, the poorest and most isolated, must have these basic services for everyone to stay healthy and for economic development to occur.
Solutions last into the future, with water and sanitation services expanding as populations grow. Future generations should benefit from the investments that are made today.
Local ownership, which is essential to sustainability. The government, community organizations and local businesses, and people must contribute financially and ensure there are sufficient resources for implementation, maintenance, and expansion of systems.
All stakeholders are accountable through ongoing monitoring of programs and projects for at least 10 years after we reach everyone.
Everyone Can Expect Results
Everyone will prove that water poverty is solvable. The movement will deliver evidence, showing that strategic and creative investments work.
Everyone will show that successful water and sanitation development programs can generate energy and momentum to extend water and sanitation solutions to other areas, building a wavelike movement.
Everyone will demonstrate that outside agencies will no longer be needed to support solutions. This transformation will free up resources for new areas of development, proving that through access to clean water and sanitation, poverty can be truly eradicated.
Everyone will share successes and challenges, driving the philosophy that no single agency has the answers.
We can't eradicate water poverty alone. Everyone will form a platform for a collective solution. Join us as we form the Everyone movement for a better water world! By joining Everyone below, you:
Accept that water poverty is a global problem that will not be solved without you.
Believe in the Everyone principles as the solution.
Commit individually and/or organizationally to playing a role in Everyone.
Background The Federal Advisory Committee Act was enacted in 1972 to ensure that advice by the various advisory committees formed over the years is objective and accessible to the public. The Act formalized a process for establishing, operating, overseeing, and terminating these advisory bodies and created the Committee Management Secretariat to monitor compliance with the Act. In 1976, Executive Order 12024 delegated to the administrator of GSA all responsibilities of the president for implementing the Federal Advisory Committee Act (FACA). Secretariat operations are directed at reporting to the president and Congress on the activities of at least 1000 federal advisory committees. Samples of documents and forms used by the Secretariat and its clients can be found in the " Advice and Guidance " pages. Executive orders and congressional revisions have further refined the extension and the application of the Act in 1993, 1997, and 1998, and the extent and nature of the Secretariat's reporting of the activities of the committees. The legal history is easy to follow in the " Legislation and Regulation " pages. The shortcut to this page is www.gsa.gov/committeemanagement . http://www.nsf.gov/pubs/2011/nsf11553/nsf11553.htm?WT.mc_id=USNSF_25&WT.mc_ev=click
Career : Sheep and Rabbit have attraction relationship into Wood, which is related to career. That means Sheep people have a good career opportunity in the year of Rabbit. However, this comes with pressure. In the spring of 2011, Sheep people will feel nervous while doing their daily job. Either there are more tasks coming or more complexity of tasks that may be challenging to Sheep people. It's very important that Sheep people must be patient with their job position and shouldn't have any quarrels with people. Otherwise any conflict will impact your reputation and bring more pressure onto you. If any trouble comes, Sheep people can ask for good friend's help since you have good people relationship in 2011. If you can handle the job pressure during the spring, then this is opportunity to take over more responsibilities in your job position and there is a chance to step up your career.
Money : Since the appearance of Finance Star , Sheep people are supposed to have a good money luck in business or financial development, but the White Tiger Unlucky Star can bring people luck into different direction. Therefore, for every money opportunity, Sheep people need to carefully calculate any risk in their investments before making the decision. Because of this uncertain future, you will have to choose the conservative approach. There is no easy money in 2011. You will get paid by the time and labor you spend and how much you get involved. Even when the money comes, you will still need to prepare for any chances of money loss later. In the year of Rabbit, Sheep, people should not endorse or promise to help the financial failure of friends or relatives.
Love : There is no strong Love sign appearing in the year of Rabbit, but Sheep people still have the chance to meet people as long as they increase their social activities. If you are single, you can try talking to people born in year of Rabbit, Horse or Rat. If you can meet someone in spring or summer, then you might have better relationship in December. If you are in love or married, then you need to pay attention on your relationship. It's possible that someone will appear and involve or interfere your relationship. You should be patient and don't let any gossip or rumor impact your love relationship. Avoiding conflict is the way to maintain relationships in this Rabbit year.
Health : Sheep people shouldn't have any major health problems in the year of Rabbit, but career pressure might cause them to feel fatigued often. Therefore, Sheep people should learn how to relax themselves by attending some social events or joining outdoor activities. However, they shouldn't try dangerous activities or challenging sports, because there is an injury sign in this year. Also, Sheep people need to pay more attention while driving and always focus on safety while outdoors.
Fortune : Money and career opportunities come to Sheep people in 2011. But the Unlucky Star makes their money and career luck up and down. Sheep people can bear hardship without complaining. They should be able to handle the pressure from their jobs and money. Sheep people have a mild temper, they can easily find new friends from their social life. They like compliments and courage from people. Therefore, Sheep people can take advantage from their social connections to develop their money luck and career path. During the White Tiger Star year, Sheep people have to watch their words and deeds to avoid hurting people. Also, they have to pay attention to their health and stay alert prevent from body damage.
"Happy for us, that when we find our constitutions defective and insufficient to secure the happiness of our people, we can assemble with all the coolness of philosophers and set it to rights, while every other nation on earth must have recourse to arms to amend or to restore their constitutions." Thomas Jefferson after 2 weeks of deliberation on the United States Constitution http://fcw.com/Microsites/2011/Network-Infrastructure/USGS-earthquake-information-CDN-content-delivery-network.aspx
What is the Implication of the Proposed Revisions on Small Entities?
EPA first promulgated the Lead and Copper Rule to control lead and copper levels in drinking water in 1991. The rule requires treatment techniques to reduce lead and copper levels in drinking water. These include corrosion control treatment, source water treatment, lead service line replacement and public education. The LCR set an action level (AL) of 0.015 mg/L or 15 parts per billion (ppb) for lead and 1.3 mg/L or 1300 ppb for copper. The action level is a concentration of lead or copper in the water that determines, in some cases, whether a water system must install corrosion control treatment, monitor source water, replace lead service lines, and/or undertake a public education program. The action level is exceeded if the concentration in more than 10 percent of tap water samples collected during any monitoring period is greater than the action level (i.e., if the 90th percentile level is greater than the action level). If the 90th percentile value for tap water samples is above the action level, it does not signal a violation, but may trigger other requirements that include water quality parameter monitoring (WQP), corrosion control treatment (CCT), source water monitoring/treatment, public education, and/or lead service line replacement. EPA is developing a proposal to modify the current Lead and Copper Rule. Requirements under consideration for modification include sample site selection criteria, tap sampling procedures, water quality parameters monitoring, lead service line replacement, and consecutive water system requirements. The changes under consideration are intended to improve public health protection provided by the LCR and streamline requirements. For more background on the LCR, visit the Lead and Copper Rule web page at: http://water.epa.gov/lawsregs/rulesregs/sdwa/lcr/index.cfm
What is a Small Business Advocacy Panel?
EPA expects to conduct a Small Business Advocacy Review (SBAR) Panel during development of a proposed rulemaking to modify the Lead and Copper Rule. The Regulatory Flexibility Act as amended by the Small Business Regulatory Enforcement Fairness Act (RFA) requires EPA to convene an SBAR Panel for a proposed rule unless the agency certifies that the rule will not have a significant economic impact on a substantial number of small entities. The Panel process offers an opportunity for small businesses, small governments, and small not-for-profit organizations (collectively referred to as small entities) to provide advice and recommendations to ensure that EPA carefully considers small entity concerns. The Panel itself is comprised of federal employees from EPA, the Office of Management and Budget , and the Office of Advocacy in the Small Business Administration (SBA) . Small Entity Representatives (SERs) provide advice and recommendations to the Panel. Typically, EPA prefers that SERs be owner-operators of small businesses, small organization officials, or small government officials. Other representatives, such as trade associations that exclusively or at least primarily represent potentially regulated small entities, also may serve as SERs. These other representatives are evaluated on a case-by-case basis. Information about what constitutes a " small business " under the RFA is available in SBA's Table of Size Standards . A " small government " is defined as a jurisdiction serving a population of 50,000 residents or fewer. A “ small organization ” is defined as any “not-for-profit enterprise which is independently owned and operated and is not dominant in its field.” To learn more, review EPA's fact sheet, What Potential Small Entities Should Know About the Small Business Advocacy Review Panel Process (2009) (PDF) (4 pp, 19 K) .
How Can I Get Involved?
If you are or represent a small public water system serving no more than 10,000 or fewer persons, you may be eligible to serve as a Small Entity Representative (SER). As mentioned above, other representatives that exclusively or at least primiarily represent potentially regulated small entities may also serve as SERs. You may nominate yourself to serve as a SER by following the directions in the next section. Depending on the volume of responses, EPA may not be able to invite all eligible candidates to participate as SERs. Generally, SERs will be asked to review background information, listen to informational briefings, and provide oral and written advice and recommendations to the Panel. At least one face-to-face meeting is typically held with the SERs in Washington, DC; a toll-free conference line is provided for this meeting. Additional information about the Small Business Regulatory Enforcement Fairness Act is available in the following fact sheet: What Small Entities Should Know About EPA and the Small Business Regulatory Enforcement Fairness Act (2009) (PDF) (4 pp, 20K) .
Who Should I Contact?
SERs must:
be small and expect to be subject to requirements of the proposed rule; or
exclusively represent or at least primarily represent potentially regulated small entities (e.g., a trade association that exclusively or primarily represents small entities). Nominees such as these will be evaluated on a case by case basis.
Individuals who are interested in potentially serving as a SER should send a message to RFA-SBREFA@epa.gov or call (202) 564-8831 by July 12, 2011. In the message, please provide:
Your name.
Name of your jurisdiction or organization.
Size of the population served by your jurisdiction or organization.
If you are with a group such as a trade association that does not qualify as a small entity but represents small entities, provide a list of your members, the size of your members, and a qualitative statement describing how your group can truly represent only the unique interests of your members that qualify as small entities.
Address.
Contact information (preferably, a minimum of a phone number and email address).
USE THIS AS THE SUBJECT LINE OF YOUR EMAIL: SER Self-Nomination for Lead & Copper
Please remember: Depending on the volume of responses, EPA may not be able to invite all qualified candidates to participate as SERs. Lead and copper enter drinking water primarily through plumbing materials. Exposure to lead and copper may cause health problems ranging from stomach distress to brain damage. On June 7, 1991, EPA published a regulation to control lead and copper in drinking water. This regulation is known as the Lead and Copper Rule (also referred to as the LCR or 1991 Rule). The treatment technique for the rule requires systems to monitor drinking water at customer taps. If lead concentrations exceed an action level of 15 ppb or copper concentrations exceed an action level of 1.3 ppm in more than 10% of customer taps sampled, the system must undertake a number of additional actions to control corrosion. If the action level for lead is exceeded, the system must also inform the public about steps they should take to protect their health and may have to replace lead service lines under their control. Notice of a Public Meeting: Environmental Justice Considerations for Drinking Water Regulatory Efforts - March 3, 2011
Current Regulation and Quick Reference Guides
Lead and Copper Rule – Code of Federal Regulations 40 CFR Part 141
This section is a reference for the public regarding the long-term revisions to the LCR. Here you will find links and information regarding public outreach, and opportunities for public participation in the revisions process. Overview
The goal for the LCR Long-Term Revisions is to improve public health protection provided by the LCR by making substantive changes based on topics that were identified in the 2004 National Review, and to streamline the rule requirements. Example categories of potential changes to the rule include:
Potentially outdated requirements, rule relevancy and simplicity for systems
Sample site collection criteria and sampling procedures for lead and copper tap monitoring
For additional supporting information related to this rule-making, visit Docket ID number EPA-HQ-OW-2005-0034 at Regulations.gov .
With the recent disasters from tornadoes to floods and wild fires, it is a good time to review state and local governments' ability to use GSA Schedule contracts for disaster recovery. Disaster recovery purchasing using GSA Schedule contracts was authorized starting in FY 2007 by the Section 833 of the John Warner National Defense Authorization Act. The Act authorized the Administrator of General Services to provide for the use of Federal Supply Schedules by state and local governments for the purchase of products and services to be used to facilitate recovery from major disasters, terrorism, or nuclear, biological, chemical, or radiological attacks. State and local government entities may use GSA Schedule contracts to purchase products and services in advance of a major disaster declared by the president, as well as in the aftermath of an emergency event. State and local government entities are responsible for ensuring that the products or services purchased are to be used to facilitate recovery. Disaster Recovery Purchasing is voluntary for both state and local government entities and for Schedule contractors. State and local entities have full discretion to decide if they wish to make a GSA Schedule purchase, subject to any limitations that may be established under state and local laws and procedures. Therefore, all products and services available under the GSA Schedule contracts can be ordered to support the disaster recovery programs. Disaster Recovery Purchasing authority is limited to GSA Schedule contracts and does not include any other GSA programs. GSA eLibrary contains a list of all GSA Schedules subject to Disaster Recovery Purchasing. State or local government grantees cannot purchase Schedule products or services under the Disaster Recovery Purchasing Program. State or local governments themselves receiving grant money are eligible users under the Disaster Recovery Purchasing Program by virtue of meeting the definition of state and local government entities; so the source of funding for these entities is irrelevant and they can use grant money to make the purchases. Under Disaster Recovery Purchasing, ordering activities can include terms and conditions required by state or local statutes, ordinances, regulations, or orders. However, the additional terms and conditions must be included as a part of the Statement of Work (SOW) or the Statement of Objectives (SOO) and must not conflict with the terms and conditions of the GSA Schedule contract. State and Local Governments may use GSA Advantage and GSA E-Buy to make their purchase or they may use their own purchasing procedures. GSA Schedule contractors that accept disaster recovery purchasing orders are identified on GSA Advantage and in the GSA E-Library with this icon . Orders received under the Disaster Recovery Purchasing Program must be reported separately and the Industrial Funding Fee must be paid. Things to Do Now:
Make sure your GSA Schedule is up to date with the products or services a State or local government would need for disaster recovery.
Make sure that in your GSA Schedule contract you have agreed to the support the program and separately report the sales.
Notify your state and local government entities that your products and services are available to assist them in preparation or recovery from disasters.
Subscribe to GovContracts to receive notices of opportunities
To expand the government's ability to access your products you can get your items on a GSA Schedule contract:
Locate partners now such as Technical Communities who have already agreed to support the Disaster Recovery Purchasing program and will act for you in the market.
Make sure they have full access to the products or services that are in demand for the those government markets.
The Senate on Tuesday confirmed President Obama's nominee to be Attorney General Eric Holder's top deputy at the Justice Department largely along party lines in a vote of 55-42. James Cole, a veteran Washington attorney nominated in May, had been serving in the position since late December courtesy of a presidential recess appointment, one that would have expired at the end of the current session of Congress. And despite the bipartisan support of eight former attorneys general, the GOP remained steadfast in their opposition as top Republicans sought information on both the terrorist prison at Guantanamo Bay, Cuba, as well as, the Bureau of Alcohol, Tobacco, and Firearm's program dubbed "Fast and Furious." Once the Administration came forward with the information sought, Republicans ended their filibuster, one that had successfully blocked the nomination earlier in June. But opposition was not just about a lack of information. Some of it was directed at the nominee, himself. Not only is there concern about Cole's tenure as an independent consultant to failed insurance industry giant AIG prior to the company's near-collapse in 2008 and its subsequent government bailout, but Republicans also voiced strong concern about what they believe to be his soft-on-terrorism stance. Republican senators repeatedly referred to an op-ed the nominee penned in 2002 in the Legal Times in which Cole referred to the Sept. 11, 2001 attacks as "criminal acts of terrorism against a civilian population," and included the attacks in the same vein as "many other devastating crimes" like rape, drug trade, organized crime, and child abuse. Cole told Judiciary Committee members in his confirmation hearing last year that decisions to try alleged terrorists should be made on a case-by-case basis, not ruling out military commissions for some. The Obama administration has since said it will try the alleged 9/11 terrorists imprisoned at the Guantanamo facility in military commissions. Cole previously served in the Justice Department for more than a dozen years before heading into private practice in 1992. He also served on former President Bill Clinton's transition team in 1992.
Read more: http://politics.blogs.foxnews.com/2011/06/28/former-aig-consultant-wins-confirmation-doj-2#ixzz1Qc9EoVOi WASHINGTON — The Supreme Court has agreed to consider the rights of landowners when confronted with an order from the Environmental Protection Agency that they are violating the federal Clean Water Act. The justices on Tuesday added the case of Idaho property owners Chantell and Michael Sackett to their lineup for the term that begins in October. The Sacketts contend that EPA left them with no practical way to object to the agency's determination that work on their half-acre parcel violated federal law and tried to coerce their compliance through the threat of costly fines. The Sacketts say they would either have to apply for a federal permit that could cost as much as the property itself, or wait for the EPA to go to court to force them to comply. Copyright 2011 The Associated Press. All rights reserved. This material may not be published, broadcast, rewritten or redistributed.
General notion of an impediment
The Latin word impedimentum signifies directly whatever embarrasses or hinders a person , whatever is an obstacle to his movements, and in this sense the baggage of an army was called impedimenta . Juridical language applies the term to whatever hinders the free action of an agent, or to whatever prevents him from performing, or at least from performing regularly, any act that the law takes cognizance of. The impediment therefore affects directly the juridical capacity of the agent, restrains it, or even entirely suppresses it; indirectly it affects the action itself, which it renders more or less defective or even null. An impediment consequently produces its effect by reason of a defect; it ceases when the agent has legally recovered his capacity, whether that be by a dispensation or by his fulfilling the conditions requisite for the act he wishes to perform. The impediment, in other words, the restriction or suppression of the juridical capacity of the agent, may arise from natural laws from Divine law , or from human law, ecclesiastical or civil; we may, however, point out that certain cases of nullity, certain defects of acts that the law takes cognizance of, are caused by the absence of an essential constitutive element; for example in the case of a contract imposed by force on one of the parties, there would be no impediment unless in a wide improper sense of the term. This general idea of impediments is applicable to all those acts in regard to which the law regulates the juridical capacity of the agents; for instance, acquisition of jurisdiction , contracts in religious matters, the sacraments . Canon law affords a multitude of examples. A layman , a heretic , an excommunicated person is incapable of acquiring spiritual jurisdiction ; better known are the restrictions placed on minors, religious, children not yet emancipated, etc., in the matter of making contracts; finally, there are many legal obstacles affecting the capacity of the faithful to receive licitly or even validly, baptism , confirmation, penance, and particularly Holy orders and matrimony.
Canon law uses the word impediment in its restricted and technical sense, only in reference to marriage, while impediments to Holy orders are spoken of as irregularities (q.v.). We may remark, however, that several real impediments or obstacles to the reception of Holy orders are not called irregularities: thus, women and unbaptized persons , who are by Divine law incapable of being ordained , are not termed irregular. But speaking of matrimony, the word impediment refers to all obstacles, whether arising from natural or Divine law . Another interesting fact is that whereas the word impediment has thus acquired a precise technical meaning in canon law, the cognate words impedire , impediens , impeditus , have preserved their wide grammatical signification and may be applied to other matters; so writers speak of those unable to go personally to Rome to be absolved from censures as impediti adire Romam , and the Constitution "Apost. Sedis" speaks of those who hinder ( impedientes ) the exercise of ecclesiastical jurisdiction .
DECLARATION OF NULLITY
In a time where divorce is the tragic outcome of approximately one out of every two marriages, the Church has been approached by many who wish to investigate, or challenge, the validity of such marriages—in short, to “seek an annulment”. But, what exactly is an “annulment”? This article will answer that question as well as explain in a concise and simple manner all that is involved in the process.
Part I : Basic Questions and Answers
What is meant by the word “annulment”?
It is interesting to note that the term “annulment” is nowhere defined in the Code of Canon Law, and in fact, is never even used. The proper and more accurate term for an “annulment” is a “declaration of matrimonial nullity.” Such a declaration is granted by an ecclesiastical tribunal. Although there is not an official definition of a declaration of matrimonial nullity, it means that what appeared to be, from one or more points of view, a valid marriage, was actually not one .
An annulment has nothing to do about who is to blame for the civil dissolution of the marriage. It is, rather, a juridical decision that states that one or both of the parties did not give adequate consent in their attempt to contract a valid matrimonial bond as the Catholic Church understands and proclaims it. A Declaration of Nullity can also be granted if at least one of the partners is Catholic and did not follow the canonical form required for a valid marriage.
The purpose of the annulment process is to uphold and protect the dignity of the sacrament of Holy Matrimony. It is imperative to understand that the Catholic Church always presumes the validity of any and all marriages submitted for investigation . Therefore, the Church will not construct a case in order to reach an affirmative decision.
By “marital consent,” we mean the human act whereby two spouses mutually accept each other into a covenantal union in which they establish a communion of the whole life, and is by its nature ordered toward the good of the spouses and procreation and education of offspring [1] . This marriage covenant is indissoluble and endures until death. These aspects were already explained in the previous two articles on “The Theology of the Sacrament of Marriage” and the “The Teaching of the Catholic Church on divorce”.
Why would I need an annulment if I have already divorced civilly?
Marriage is a union—not a contract—made by God , not by man. Therefore, no civil institution has the power to dissolve what God has joined. The civil dissolution only deals with the civil aspects of the marriage: finances, assets, custody of children, etc. A declaration of nullity declares that a covenantal union never existed in the first place. Civil divorce is indicative only of a marriage that has failed , which is not the same as an invalid marriage.
If someone who is divorced wanted to re-marry, then it must be proven that his/her previous attempt at marriage lacked a valid consent according to the understanding and teaching of the Catholic Church. Once again, the Church always presumes the validity of any marriage until that validity is challenged and proven null within the ecclesiastical forum. It is important to add, therefore, that one must not plan any future marriage until the judges have rendered an affirmative decision and that decision has been ratified by the court of Second Instance (also known as the appellate court). There is, however, never a guarantee of an affirmative decision. Therefore, one should not be contemplating a future marriage unless they are truly free to marry. If someone were contemplating a future marriage while petitioning for an annulment, then that would clearly indicate that he/she does not understand or believe the Church's understanding of marriage as an indissoluble bond until death. Only when a declaration of nullity has been given can one consider himself/herself free to marry .
This question is also discussed in depth in the two previous articles pertaining to the theology of marriage and the Church's teaching on divorce.
An opportunity for Spiritual Healing
Many who have completed the annulment process have found it a means of emotional healing. For many, revisiting past bad memories is often a painful experience. However, through a thorough review of their lives and the events leading up to and including their marriage, many have discovered things about themselves that they may have never known had they not been required to examine. Many of the questions in the formal petition help the parties examine closely their personal histories and their thought processes. For others, completing the formal petition has helped deepen their understanding of marriage in ways they never considered. Many have said that had they thought of all the things the formal petition covers before they married, they either would have waited longer to marry or not marry at all. If an affirmative decision is reached in the case, and that person chooses to marry in the Catholic Church in the future, then he/she is highly unlikely to make the same critical mistakes in their behavior or in his/her choosing of a spouse for life.
There are many who found the process serves as a means of reconciliation with their spouse and as a way to “bring closure” to a very difficult time in their life, regardless of the outcome of the case. What often begins with pain, by digging into painful memories, often ends with a life-changing reconciliation. The pastoral and prayerful assistance of your advocate and the Tribunal are there to help make your walk through the annulment process a peaceful one.
Who reads all the testimony submitted to the Tribunal?
All testimony shared within the marriage trial is held strictly confidential among the court officials. Witnesses are not permitted to share any of the testimony they have submitted to the court, nor are they permitted to speak about the dynamics of the case with either the Petitioner or Respondent. Once all the testimony has been presented to the court and is sufficient for the judges to render a decision, only the main parties of the Petitioner and Respondent, with their respective advocates, are allowed to review all the testimony gathered by the court. Only those testimonies deemed by the court to be confidential for serious reasons will be withheld from one or both parties.
How long does it take for a case to be processed?
Each case varies in the amount of time it takes to be processed. The average time in the Archdiocese of Denver is approximately six months to one year provided there are no significant obstacles that may slow a case down.
What are some of these obstacles?
Almost every obstacle arises from a lack of cooperation with the directives given by the court. Every request by the court must be attended to promptly or one risks his/her case being delayed. These directives include scheduling and completing a personal interview at the Tribunal, and scheduling and completing an interview with court-appointed experts (when necessary). Another significant obstacle is the lack of witness cooperation throughout the case.
Isn't the annulment process expensive?
The Metropolitan Tribunal of the Archdiocese of Denver charges a processing fee of $450 per case. This fee, however, is only a fraction of all the expenses that go into the processing of a case. In comparison to the processing fees of most civil divorces, the processing fee for a petition of nullity is quite inexpensive. For those who are in financial difficulties, however, it is possible for a waiver of the fees to be granted. In such cases, the petitioner would be required to provide documentary evidence of his/her financial status to the Tribunal, and it will be given its due consideration.
Which tribunal should I approach?
This depends upon certain criteria listed in the Code of Canon Law (c. 1673). Once the Tribunal receives a Preliminary Questionnaire, it must determine whether the case falls under its jurisdiction before it can accept a case. The court contains legal competence to hear cases fulfilling one of the following criteria:
1. When a marriage was celebrated inside the Archdiocese of Denver;
2. The Respondent is domiciled (maintains a current legal address) in the Archdiocese of Denver;
3. The Petitioner is domiciled in the Archdiocese of Denver—however, the Tribunal must receive permission from the diocese within which the Respondent is currently domiciled. In other words, unless the diocese of the Respondent grants legal competence to the Tribunal of the Petitioner's domicile, then the Petitioner's Tribunal does not have legal competence to hear the case.
4. If it is the Tribunal which contains the greatest accumulation of proofs in order to try the case. This is an extraordinary condition of legal competence.
When a marriage was celebrated outside the Archdiocese of Denver and the Respondent is currently a resident outside the jurisdiction of the U.S. Episcopal Conference, additional conditions must be fulfilled before the Denver Tribunal may accept a petition for formal investigation. Petitioners are, therefore, informed that there is no guarantee that the Tribunal here will be legally competent to process a particular case. Your local parish priest will be able to help you in making the right decision.
“If the annulment is granted, does that vindicate the awful actions of my spouse that caused the divorce? How can the Church overlook/condone his/her behavior by granting an annulment?”
Regarding the first question, absolutely not--especially if they are the actions of the one petitioning for the annulment! The Church is sometimes accused of overlooking past immoral conduct when it declares a marriage null. It is quite clear that since the marriage ended in civil divorce, that something went tragically wrong. The annulment process, however, is primarily concerned with proving whether or not there was something fundamentally lacking in the consent of the married couple at the time of marriage contract—not with the event(s) which brought about the civil divorce. The court must be very careful to discern a marriage which ended due to a sinful act(s) (i.e. infidelity) versus an invalid consent, although there is sometimes a connection between them.
During the investigation of the courtship and marriage, certain facts may arise that point to serious problems in the habitual behavior of one or both parties. As a result, the court, by the ecclesiastical authority given it by the bishop, may impose a prohibition (vetitum) on one or both parties at the time an affirmative decision is granted. A prohibition is imposed only on those cases where there is serious doubt whether that person is currently capable or adequately disposed toward entering into a binding covenantal union according to the Church's teachings on marriage. This would prohibit the party stated in the vetitum from marrying in the Catholic Church until the particular issue stated in the vetitum has been satisfactorily treated according to the wishes of the Tribunal.
At times a recommendation (monitum) for counseling may be made by the Presiding Judge in First Instance (the tribunal which processes your formal petition). This recommendation may involve one or both of the parties. The recommendation is based on the hope that the person will pursue adequate counseling for the well being of all parties concerned in a subsequent marital relationship . It is the responsibility of the preparing minister of a subsequent marriage to ensure that whatever has been affixed to any party (monitum or vetitum) who has received a declaration of nullity by the Church be properly addressed .
The Church does not cast blame on one or both of the parties, even if they acted in a blameworthy manner. By issuing a declaration of nullity, the Church is stating that neither party is bound to accept the consequences of a valid marriage bond. The parties, therefore, are normally free to contract marriage in the Catholic Church. In other words, an annulment declares that what was believed to be a valid marriage is declared never to have been so in the first place.
There is also a misconception that should the Tribunal decide not to declare a marriage null, the Church is not forgiving or compassionate to the parties. The Church is then seen as passing judgment on the character of the parties, especially to whom the grounds of the case applied. This is simply not true and an unjust accusation against the Church because, as was stated already, the annulment process has to do exclusively with judgment upon the disposition of the parties at the time of marital consent . It is the duty of the civil divorce proceedings to place blame on one or both parties for the failure of the marriage.
Legitimacy of children
A common question for those going through the annulment process is: “If our marriage is declared null by the Church, does that mean our children from that union are illegitimate?” The answer to that question is, “No.” A declaration of nullity has no bearing on the legitimacy on any children born from the presumed valid union because the presumption of validity is always the position of the Church towards all marriages. The Church upholds the children of marriages where at least one of the partners believed, at the time of marital consent, that it was a real marriage. In addition, “legitimacy” is a civil term and thereby rendering all children born under a civil marriage legitimate.
Part II: The Juridical Process
Court Officials
Who's Who in the Juridical Process
There is a misconception that the Tribunal officials are non-approachable and desire no further contact from those petitioning for an annulment once the process has begun. As this article has already illustrated, from the beginning of the process to its completion, there is both an Advocate from your parish and a Judicial Auditor who are always available to walk you through the process.
The Tribunal is comprised of various officials involved in the trial of all formal cases. Judges are appointed to office by the diocesan bishop [2] , and they are assigned to specific cases by the judicial vicar [3] usually in the order the cases are presented. [4] The parties involved in the annulment process have the right to object to any of the officials appointed for the trial. [5] All objections are subject to the discretion of the Tribunal.
The Advocate
Every Petitioner is appointed an Advocate to assist them with the process of the annulment. In the Archdiocese of Denver, only priests and deacons are appointed to serve as Advocates, with the exception of those appointments made only by the Tribunal. Once a case is accepted by the Tribunal, the Respondent is afforded the right to have an Advocate appointed for him/her. The role of the Advocate is to guide the parties in thoroughly completing the petition and questionnaires sent to them as well as correspond with the Tribunal throughout the trial regarding the dynamics of the case. Since the annulment process can be emotionally draining for the parties involved, the Advocate also serves in a pastoral manner to make the process as painless as possible while helping them deepen their understanding of what the Church teaches regarding marriage and divorce.
The Judicial Auditor
The Auditor's role is to assist the judges in the gathering of information from all parties in the case. It is not uncommon that you will be asked to undergo a personal interview with the Auditor to clarify testimony you have submitted. As stated earlier, the Auditor is the “point man” between the parties and the court. The Auditors can answer any questions regarding your case.
Defender of the Bond
Finally, before a Judge may render a decision regarding nullity, he must obtain the written comments of the Defender of the Bond. This person is charged with the task of upholding the validity of the marriage or attesting to the fact that justice has been served. The Defender protects the integrity of marriage by providing evidence from all the testimony gathered in the case to uphold the validity of the marriage. The judges will carefully review the report by the Defender before a decision is rendered.
The Process
Where to Start
The first place to begin the process is the pastor or deacon of your parish, or any priest within the Archdiocese of Denver. He will explain the annulment process to you and give you a Preliminary Questionnaire.
Types of Cases
The Preliminary Questionnaire will provide the Tribunal with the necessary information to determine whether your marriage is going to be a formal case or a “lack of form” case. A formal case pertains to those marriages contracted following the canonical form required by all Catholics (cf. 1983 CIC 1108 & 1117). Non-Catholics are not bound to observe canonical form unless they married a baptized Catholic. However, a dispensation can be obtained by the local ordinary (bishop), which would dispense the parties from observing canonical form. Those marriages which were required to observe the canonical form, but did not for whatever reason, can be declared null by an ecclesiastical tribunal by merit of the historical facts proven by documentary evidence. No formal investigation is needed. All other marriage cases are considered “formal cases” and an investigation regarding the interior dispositions of the parties at the time of marriage contract is commenced. We will now elaborate on the main classifications of nullity cases: documentary cases and formal cases.
· DOCUMENTARY CASES: Ligamen, Defect of Form, Lack of Form
These are declarations of nullity which can result from an investigation of documents without a formal trial.
The first of these cases is called a Ligamen . This term refers to a bond of a prior valid marriage. Ligamen cases [7] refer to marriages involving one party who had been validly married before, and whose marriage had not been terminated by death before the celebration of a subsequent union, which also failed at a later date. Ligamen cases generally involve a marriage between non-Catholics. If the judges decide that there appears to a strong case for a ligamen, the Petitioner and Advocate will be assisted by the Tribunal in gathering the required materials.
Defect of Form
As stated earlier, there exist invalid marriages involving a defect of canonical form. This ordinarily refers to marriage celebrations in the Catholic Church where the officiating cleric either de facto lacked the faculty to assist or failed to assist actively by not requesting and receiving the consent of the parties or where the required two witnesses were not present. In other words, the required canonical form was only partially observed.
Lack of Form
In the past, it would not have been necessary to even explain this type of documentary case because the laws of the Catholic Church for marriages was well known. However, the level of ignorance of these laws has dramatically grown in the last few decades. Lack of canonical form cases, as stated earlier, refer to marriages of Roman Catholics who, while bound to the canonical form of marriage, attempt marriage before a non-Catholic minister of religion or a civil magistrate or enter into a civilly recognized common law marriage. Canonical form ordinarily refers to the celebration of marriage before a duly authorized Roman Catholic clergyman and two witnesses in a Catholic Church. Lack of canonical form ordinarily invalidates the marriage of Roman Catholics unless a previous dispensation from canonical form has been granted by the proper ecclesiastical authority.
· FORMAL CASES: “Petitioning” for an anullment
Those individuals whose marriages are determined to be “formal” cases are sent a “formal petition” to be completed by the Petitioner of the case. This is a good time to meet with your approved Advocate to help you complete the petition in a thorough manner. This 16-page petition is comprised of questions covering the background of both parties and the dynamics of the courtship, engagement, and marriage. The testimony given in the petition is given under a solemn oath, which the Petitioner signs at the end of the testimony. It is extremely important that each question be answered with as much detail as possible in order to help the court gather all information as soon as possible.
Some ask the question: “Why do I need to answer the detailed questionnaire? This seems so intrusive. These questions don't seem relevant!” It is true that not every question may be completely relevant to your particular case, but a vast majority of the personal questions do apply. You have petitioned the Catholic Church to thoroughly investigate your disposition at the time of marital consent, and there are many factors present which influence your decision. This includes your childhood and family life, adolescence, courtship, and engagement. The detailed questions regarding your background and courtship are to help the court see that those factors that caused your marriage to fail existed at the time of your consent and saw their fruition in a failed marriage. Therefore, since the decision to marry is one that encompassed the whole person, body, mind, and spirit, it is necessary for the court to examine each party's history in the same context.
Upon reception of the petition, the judges review the content and decide whether the facts presented merit possible grounds for the marriage to be declared null. A legitimate “doubt” has been presented and the investigation of the marriage will proceed on that basis.
Don't forget, the Judicial Auditor and an Advocate are available to assist you through the processing of the case.
Your Spouse's Participation (The “Respondent”)
One may wonder why the word “spouse” is used rather than “previous spouse.” Remember that the Church's presumes a marriage is valid until proven otherwise within an ecclesiastical tribunal. Throughout the annulment process, however, your spouse is referred to as “The Respondent” while you are referred to as “The Petitioner”. To ensure the rights of your spouse, he/she is notified that you have petitioned the Tribunal for a declaration of nullity of your marriage. Accompanying this citation of your spouse is the same questionnaire you completed as your formal petition. If the Respondent has not been properly cited, then the Petition for Nullity of your marriage is automatically null and the process is abruptly stopped.
The participation of both parties often assists the judges in acquiring a fuller picture of the disposition of both people at the time they consented to marriage. If, however, the Respondent chooses NOT to participate, or even in a limited fashion, in the trial, it is sufficient for the case to proceed that he/she has been properly cited and offered the opportunity to provide testimony. In that case, the merits of the case will be tried on the testimony of the Petitioner and that of his/her witnesses.
Many become alarmed about getting their spouses involved because they are afraid of their spouses reading what they have written to the Tribunal. It is important to remember, however, that both parties have rights, as in a civil case, and to be equally involved in the annulment process. Therefore, only for a credible, grave reason is testimony ever withheld from one or both parties. Permission can be granted, however, to keep the Petitioner's address confidential from the Respondent should that be necessary.
Another concern is that the Respondent may try to place obstacles in the case to prevent it from coming to a decision. The judges and auditors are keenly aware of such attempts and are often able to detect such efforts. The court is aware of the length of time a case is in process and will clearly communicate to both parties deadlines for information to be received. This prevents the processing of a case from being unduly delayed.
Testimony from Credible Witnesses: Why do I need Witnesses?
This is usually what comprises the longest part of the case processing. Once both Petitioner and Respondent have been cited and have not provided serious objections to the case, then the court sends questionnaires to all the witnesses listed by each party in their formal questionnaires. These witnesses should possess knowledge of the courtship, engagement, and marital dynamics. Children from the marriage in question are not appropriate witnesses because of the pressures to favor one party over the other. In addition, the direct offspring of the marriage in question do not possess first-hand knowledge of the courtship, engagement, and marital dynamics of the marriage. Those witnesses who possess expert knowledge of the events under investigation (psychologists, priests, counselors, etc.) should also be submitted as witnesses.
The purpose of witnesses is to help the judges reach the moral certitude necessary in order to render a definitive decision. Witnesses serve to offer an “outside” perspective on the facts of the marriage to confirm the testimony already given under oath. Witnesses, too, are required to give testimony under solemn oath in order to ascertain the objective truth of the facts of the case and prevent them from giving biased testimony. In addition, any communication between the Petitioner/Respondent with their witnesses regarding what testimony was submitted to the Tribunal is not permitted under any circumstances. If the court discovers that there has been such communication, the integrity of the case will have been violated and the case will be dismissed.
In order to facilitate the processing of your case, it is highly encouraged that you check on the status of your witnesses to make sure they have completed the witness questionnaire in a timely manner.
Personal Interviews
Personal interviews are commonly required of any of the parties and/or witnesses involved in the annulment process. Such interviews often serve to help elaborate on those details which the court renders necessary in obtaining the full truth of the matters in question. In addition, the parties involved often find that they are able to better express in a personal interview what they could not do in their written depositions. The Auditor appointed to your case almost always conducts the interview. This is also a good time to ask any questions you may have regarding the processing of your case.
Seeking Expert Testimony
After an adequate amount of testimony has been obtained from the parties and witnesses, the Instructing Judge may consult a clinical psychologist for his or her opinion about the marital dynamics of a particular case. It is not uncommon for one or both of the parties to be asked to visit with one of the court-appointed experts to help the judges better their understanding of more sensitive issues.
Some individuals become defensive when the court requires that such a visit be made for the case, jumping to the conclusion that the court thinks of them as “whackos.” This is far from the truth. The court is seeking the opinion of experts to assist them in fleshing out some of the deeper issues that were involved in the failure of the marriage. An expert's assessment does not replace the judgment of the judges.
Part III: Rendering A Decision
Publication of the Process
Prior to arriving at a decision, the Judge will inform the Petitioner and the Respondent with their respective Advocates that they have two weeks in order to review all the testimony gathered from their witnesses and spouse. At that time, they may provide a rebuttal to any allegations made that are not true. They are also permitted to submit any new evidence within this period of time. This is known as the Publication of the Process.
Adjudication
After having heard from the Defender of the Bond, the Judge will study the case and issue the decision. Afterwards, he or she will inform both parties of the decision. If either party feels aggrieved by the decision, either or both may lodge a personal appeal of that decision within a reasonable period of time.
All affirmative decisions must be transmitted in the legitimately designated Court of Appeal. If the Court of Appeal concurs in the affirmative decision of the court of First Instance (the tribunal which processed your formal petition), the affirmative decision then becomes effective. In the case of a negative decision in First Instance, it is best that the aggrieved party consult with the Presiding Judge or Advocate before lodging an appeal.
TED ARMAN SPLASHING IN MINE WATER, "THE MOST TOXIC ON EARTH"
Waterbody History Report for CAR304.120SAN LORENZO RIV
Waterbody CAR304.120SAN LORENZO RIV appears to have undergone an ID change prior to 2006.
Click on the Listed Water ID to see a detailed waterbody report. The highlighted row indicates the Listed Water ID and cycle for which this report was requested.
The TMDL ID provided in the waterbody history is associated with the specific cause name(s) in the National TMDL Tracking System.
Click on the Listed Water ID to see a detailed waterbody report.
The color in this table is for readibility only.
The TMDL ID provided in the waterbody history is associated with the specific cause name(s) in the National TMDL Tracking System.
Click on the Listed Water ID to see a detailed waterbody report.
The color in this table is for readibility only.
The TMDL ID provided in the waterbody history is associated with the specific cause name(s) in the National TMDL Tracking System.
Click on the Listed Water ID to see a detailed waterbody report.
The color in this table is for readibility only.
Below is a brief summary of some federal and state watershed policies that both inform and interact with the Coastal Watershed Council. We hope these policies provide excellent background information for the public to understand our mission.
Federal Acts:
Federal Clean Water Act:
This important act was established in 1972, and amended in 1977. It regulates the discharge of pollutants in the water, and gives the United States Environmental Protection Agency (U.S. EPA) the authority to implement pollution control programs such as setting wastewater policies for industry and continued requirements to set water quality standards for all contaminants on surface water quality. The act also makes it unlawful for any person to discharge pollutants into the water supply from any point pollution source (a source that is a single identifiable water or thermal pollution) unless they have the proper permits under the established provisions. This act also funds construction of sewage treatment plants and recognizes the need for planning to address the threats posed by non point source pollution (pollution that comes from diffuse sources such as animal feces, and fertilizers that deposit into water sources) 1.
Below is one of the most important sections of the Federal Clean Water Act that directly links to the purpose of the Coastal Watershed Council.
Section 303 (d): Requires states to identify water bodies that do not meet water quality objectives and are not supporting their general use. Every two years, each state must submit an updated list called the 303 (d) list to the U.S. EPA, that also names the pollutant or stressor causing the impairment, and establishes the priority for a control plan to address the impairment. The list also identifies water bodies where a Total Maximum Daily Load (TMDL) (which is the total allowable pollutant load to receiving water that will violate state water quality standards) that has been approved by U.S. EPA and implementation is available, but water quality standards are not yet met 1. The second component of the 303(d) list serves water bodies where the water quality problem is being addressed by an action other than a TMDL and water quality standards are also not yet met.2
Endangered Species Act (ESA):
In 1972 Congress recognized that society needs to change the ways in which humans utilize and, too often, degrade finite natural resources. Congress passed the Endangered Species Act, a piece of legislation that has provided the basis for ecosystem and species protection for the United States of America. Although it is a complicated stature in practice, the purposes are clear: to provide for the conservation and recovery of threatened and endangered species and the ecosystem upon which they depend.
The ESA requires the federal government to establish protective regulations that apply to a threatened or endangered species. These regulations are often referred to as the “4(d) rules” and provide protection for the conservation of the species. The regulations prohibit the “take” of any threatened or endangered species through harming or killing or through destruction or modification of the species’ habitat. The 4(d) rules also allow certain kinds of activities that contribute to the long-term survival and recovery of listed species.
For example, the National Marine and Fisheries Services (NMFS) and the U.S. Fish and Wildlife Services (USFWS), amongst other federal agencies, develop and implement rules to protect and restore the coho salmon and steelhead trout, along with other species, under the ESA.. These regulations will apply not only to public entities, but will also apply to private entities and their activities. Examples of activities which may be regulated under the new rules include water diversions, wastewater discharges, and erosion and sediment controls. Currently, there are over 1,925 endangered species, and of these, 1,350 are found in part or entirely in the U.S. and it’s waters 3.
The Governors of Washington, Oregon, and California have joined together by creating an agreement to protect the health of the West Coast’s ocean and coastal ecosystems and the economies that depend on them. They believe issues will be more effectively addressed through the collective effort of all three states. This agreement targets seven priority areas, which include:
1) Clean coastal water and beaches
2) Healthy oceans and coastal habitats
3) Effective implementation of ecosystem and watershed-based management programs
4) The reduction of impacts due to offshore development
5) An expansion of ocean and coastal scientific research and monitoring
6) Increasing ocean awareness and literacy in the west coast region, and lastly
7) Creating a more sustainable economic development of coastal communities.
In addition to the above seven target areas, this agreement also defines four actions for the states to jointly undertake immediately. These actions focus on increased funding for nonpoint source pollution control programs, the prohibition of new offshore oil and gas leasing, development and production, the development of a marine research plan for the West Coast region, and federal technical support for addressing issues of regional significance. The states have acted on each of these initial directives, and are presently continuing to participate in the identification and prioritization of regional research needs in cooperation with the four Sea Grant programs. Sea Grant programs are a national program under the National Oceanic and Atmospheric Administration (NOAA) in conjunction with various universities that conduct scientific research, education programs and extension programs to enhance the use and conservation of coastal marine resources. The West Coast Governors’ Agreement hopes that other coastal communities in other states and around the world will see this agreement as a model for their own communities, and find more available funding for state and federal ocean and coastal management. This agreement has just been passed, and the release of the final plan will be released in mid 2008 4.
California State Water Policies:
California Ocean Protection Act (COPA):
Created in 1972, this is the primary law that governs the decisions of the Coastal Commission. COPA outlines, among other things, standards for development within the Coastal Zone, as well as encouraging local governments to develop protected areas and increase the diversity and protection of already conserved lands such as bays, wetlands, and estuaries . This will be accomplished by continuous water monitoring and necessary environmental adjustments, while still supporting ocean dependent economic activities. Under this plan several other policies have been enacted, among them California’s Ocean Protection Council, California’s Ocean Currents Monitoring System, and California’s Marine Life Protection Act 5 .
Assembly Bill (AB) -411:
This bill is part of the coastal related legislation, which requires the State Department of Health Services to adopt regulations requiring the testing of all beaches for total coliform, fecal coliform, enterococci, and streptococci bacteria. This policy establishes protective minimum standards for the location of monitoring sites and monitoring frequency. It requires postings in clearly visible points along affected beaches whenever state standards are violated, and requires that beaches be tested for total coliform, fecal coliform, enterococci, and streptococci bacteria and chemical pollutants including PCBs, PAHs, and mercury on a weekly basis from April 1 to October 31, of each year 6.
Porter-Cologne Water Quality Control Act:
Created in 1969, and updated in 2007, this is by far one of the most important acts for water protection in California. This act establishes State Water Resource Control Board (SWRCB) and each Regional Water Quality Control Board as the principal state agency for having primary responsibility in controlling water quality in California by organizing water quality control plans. There are nine Regional Water Quality Control Boards in California (see diagram on website). Today the five-member State Water Board allocates water rights, adjudicates water right disputes, develops statewide water protection plans, establishes water quality standards, and guides the nine Regional Water Quality Control Boards located in the major watersheds of the state. The Regional Boards, each comprised of nine members, serve as the frontline for state and federal water pollution control efforts. A Basin Plan tailored to its unique watershed and providing scientific and regulatory basis for each Regional Board’s water protection efforts guides each Board. These basin plans include beneficial uses of the watershed, economic uses of the water, monitoring water quality, the needs to develop housing in the region, and wastewater uses. These also include the development and uses of recycled water, as well notification requirements for oil and petroleum discharges, solid waste disposal sites, and general waste discharge. This act lists the notification requirements if waste is leaked from source and the penalties, waivers, and criteria of what cleanup steps need to occur 7 .
Proposition 50:
This proposition for the State of California in 2002, authorizes $3,400,000,000 in general obligation bonds to be repaid from the state’s General Fund, to fund a variety of water projects including: specified CALFED Bay-Delta Program projects including urban and agricultural water use efficiency projects; grants and loans to reduce Colorado River water use; purchasing, protecting and restoring coastal wetlands near urban areas; competitive grants for water management and water quality improvement projects; development of river parkways; improved security for state, local and regional water systems; and grants for desalination and drinking water disinfecting projects.
Approximately four hundred and twelve million dollars in IRWM Grants are available, which are split between the State Water Resources Control Board (SWRCB) and the Department of Water Resources (DWR). Approximately one hundred and eighty three million dollars is available from the State Water Board’s funding allocation to qualified recipeints1.
In March 2007, the State Water Board adopted Resolution No. 2007-0011 under Proposition 50 that approved additional IRWM Implementation Grant Funding List totaling $75,000,000 that included the Community Foundation of Santa Cruz County in the amount of $12,500, 000. The Community Foundation of Santa Cruz County has since requested the State Water Board’s approval to substitute a subsidiary of the Community Foundation as Grantee under the Grant. The subsidiary is a qualified 501(c) (3) non-profit organization, and is called the Regional Water Management Foundation, a Subsidiary of the Community Foundation of Santa Cruz County. This has been done to preserve the fiscal integrity of the Community Foundation by creating a separate legal entity to receive and administer the Grant funds 8.
California Nonpoint Source Pollution Act:
Enacted in 1998 by the United States Environmental Protection Agency (U.S, EPA) and the National Oceanic and Atmosphere Administration (NOAA). This established the California Nonpoint Source Pollution Control Program, which controls and manages a range of nonpoint source pollution such as agriculture, hydromodifications, urban run off and forestry. The California Nonpoint Source Pollution Control Program has establishe a Program Plan that identifies nonpoint source management measures to be implemented by 2013. It is a statewide program that represents a commitment by the State to expand its efforts over the next 13 years to reduce and prevent nonpoint source pollution. The Program Plan includes the following key elements:
Adoption of 61 nonpoint source management measures (MMs).
A commitment to implement all of the MMs by 2013.
A Memorandum of Understanding (MOU) between the California Coastal Commission and the State Water Resources Control Board regarding their commitment to serve as lead agencies for implementation of the Program Plan.
A schedule to implement targeted MMs to be developed in three consecutive five-year plans.
Tracking and evaluating program effectiveness through biennial and five-year evaluations. Biennial evaluations will focus on assessing continuing implementation of MMs and activities identified in the five-year plans. At the end of each five-year period, the State will conduct and evaluation of how well performance measures and implementation goals identified in the five-year plans have been met, and assess mechanisms, including rulemaking, to improve program implementation.
A description of the authority of the Coastal Commission, via the Coastal Act, and the State and Regional Boards, via the Porter-Cologne Water Quality Control Act (Porter-Cologne), to implement the program throughout the State.
Incorporation of additional State authorities into the Program Plan through MOUs and Management Agency Agreements ( MAAs).
As a result of these efforts, California will receive $10.6 million this year to implement the nonpoint source program. This includes $5.2 million of new funds that the Clean Water Action Plan (February 1998) has earmarked for those States that have upgraded their nonpoint source programs 9.
Watershed Policies for Santa Cruz County:
(Only one policy was looked into at this time)
Stormwater Ordinance:
The City of Santa Cruz adopted a Stormwater Ordinance establishing standards for keeping stormwater clean. Studies indicate that stormwater runoff is a major contributor of pollutants to the San Lorenzo River and Monterey Bay. In addition to pollution control requirements, the City of Santa Cruz faces significant flood control commitments for the San Lorenzo River Flood Control Project. The City is required to initiate programs that monitor stormwater for pollutants, improve stormwater system maintenance, and provide educational activities to individuals, businesses and agencies that impact stormwater. The City of Santa Cruz adopted a Stormwater Ordinance to establish standards for keeping stormwater clean. Best management practices (BMP, which are effective methods to prevent or reduce the movement of sediment, nutrients, pesticides and other pollutants from the land to surface or ground water) for specific areas such as retail, industrial, and construction activities are being developed and implemented. In combination, these programs will reduce stormwater pollution. These activities support the goal of the City to minimize the pollutants from the City storm drain system entering Monterey Bay National Marine Sanctuary. The City created the Stormwater Management Utility and established utility fees to pay for the City’s share of costs for stormwater pollution prevention and flood control projects. Stormwater related pollution abatement programs are estimated to cost around $200,000 per year on an ongoing basis 10.
Posted on Thursday, April 22, 2010 8:18:11 AM by george76
House Democrats pushed forward Wednesday with an effort to delete the word "navigable" from the Clean Water Act - a change that would give the government greater ability to enforce clean-water rules but that opponents said amounts to a federal power grab.
"If this bill were to become law, there'd be no body of water in America that wouldn't be at risk of job-killing federal regulation - from farmers' irrigation canals to backyard ponds and streams to mud puddles left by rainstorms," said Rep. Doc Hastings of Washington, the ranking Republican on the House Natural Resources Committee.
The Waters Advocacy Coalition, made up of farm, manufacturing and housing advocacy groups, said the bill would upset the federal-state balance that has developed on water protection.
At its core, the fight is over how broadly Congress wanted the 1972 Clean Water Act to be applied.
The law in one place says the act was to protect the nation's waters, but in other places, it says it's meant to govern "navigable" waters. The Supreme Court ruled that constrained the Environmental Protection Agency to regulating waterways big enough for ship traffic.
Official Summary 4/2/2009--Introduced.Clean Water Restoration Act - Amends the Federal Water Pollution Control Act (commonly known as the Clean Water Act) to replace the term "navigable waters" that are subject to such Act with the term "waters of the United States," defined to mean all waters subject to the ebb and flow of the tide, the territorial seas, and all interstate and intrastate waters and their tributaries, including lakes, rivers, streams (including intermittent streams), mudflats, sandflats, wetlands, sloughs, prairie potholes, wet meadows, playa lakes, natural ponds, and all impoundments of the foregoing, to the fullest extent that these waters, or activities affecting them, are subject to the legislative power of Congress under the Constitution. Declares that nothing in such Act affects the authority of the Secretary of the Army or the Administrator of the Environmental Protection Agency (EPA) under the provisions of the Clean Water Act related to discharges: (1) composed entirely of return flows from irrigated agriculture; (2) of stormwater runoff from certain oil, gas, and mining operations composed entirely of flows from precipitation runoff conveyances, which are not contaminated by or in contact with specified materials; (3) of dredged or fill materials resulting from normal farming, silviculture, and ranching activities, from upland soil and water conservation practices, or from activities with respect to which a state has an approved water quality regulatory program; or (4) of dredged or fill materials for the maintenance of currently serviceable structures, the construction or maintenance of farm or stock ponds, irrigation ditches and maintenance of drainage ditches, or farm, forest, or temporary roads for moving mining equipment in accordance with best management practices, or the construction of temporary sedimentation basins on construction sites for which discharges do not include placement of fill material into the waters of the United States.
3 posted on Thursday, April 22, 2010 9:12:05 AM by Roccus (......and then there were none.)
"If this bill were to become law, there'd be no body of water in America that wouldn't be at risk of job-killing federal regulation -
Incorrect.
If this bill were to become law, there'd be no body of waterLAND in America that wouldn't be at risk of job-killing federal regulation
All land drains into water.
5 posted on Friday, April 23, 2010 11:02:17 AM by Carry_Okie (The RINOcrat Party is still in charge. There has never been a conservative American government.)
It is fairly obvious that the NRDC lawsuit was not the first that the EPA had heard about enforcing 303(d) TMDL on nonpoint sources. Both litigants are members of the same multilateral organization, the International Union for the Conservation of Nature and Natural Resources (IUCN). In this case, both litigants have a confidential, offshore venue at which to conclude the settlement in advance, and get a free vacation in the deal. The litigants can walk into the Federal Court and tell the judge that they'll settle. The judge looks at the backlog and down comes the gavel. It's a done deal: The litigants can enter into a consent decree with a time limit for implementation upon which they alone agree. They can even have the press releases written in advance.
It's called a sweetheart suit.
There are dozens of Federal Courts in the Western United States. No one could possibly monitor all of these lawsuits sufficiently to find out about the suit, notify the affected property owners, gather data capable of refuting the claims, and organize a response quickly enough to block the consent decree. No one is there with the preparation and aura of credibility to refute the legitimacy of the claims or contest their jurisdictional authority to institute and enforce the nonpoint TMDL.
Now, what was the point of all this? Why should the NRDC and the EPA think the nonpoint nitrate TMDL in the San Lorenzo River Watershed is such a big deal? It's gonna take a little while for this one to sink in.
Mud.
Wherever there is dirt and water, there is mud. Whenever you mix mud and water, you get suspended silt. Mud is a nonpoint source of silt. Silt is found everywhere there is dirt, which is everywhere. If you want to control the use of dirt, just call it a pollutant! It isn't clean water any more, it's dirty. People don't want dirty water. They want clean water. Just ask them.
6 posted on Friday, April 23, 2010 11:06:46 AM by Carry_Okie (The RINOcrat Party is still in charge. There has never been a conservative American government.)
William Z. Foster said it best, back in 1932.
“The establishment of an American Soviet government will require the confiscation of large landed estates in both town and country and the entirety of lakes, rivers, forests, and mineral deposits.”
He was the head of the Fosterite division of the Communist Party, as well as CPUSA National Chairman.
Then Gus Hall said, “The future of communism in America will be the environmental movement.”
Fast forward to National Audubon Society President, Peter Berle - “We reject the idea of private property.”
Berle’s VP was Brock Evans, and Brockie Poo said “..let’s be unreasonable! Let’s take it all!”
The Clean Water Act is one of the great unnatural acts, along with the Wilderness Act, the Endangered Species Act, the Clean Air Act, ad nauseam.
8 posted on Friday, April 23, 2010 1:35:03 PM by GladesGuru (In a society predicated upon freedom, it is essential to examine principles,)
Yes, even as their debt-for-foreign-products racket is about to develop ballistic interest rates and run into a ditch. That is, they won't have the revenues after the bond collapse and chain of other events.
9 posted on Friday, April 23, 2010 10:10:55 PM by familyop (cbt. engr. (cbt), NG, '89-' 96, Duncan Hunter or no-vote.)
Disclaimer: Opinions posted on Free Republic are those of the individual posters and do not necessarily represent the opinion of Free Republic or its management. All materials posted herein are protected by copyright law and the exemption for fair use of copyrighted works.
Sources of Microbiologic Contamination
Elevated bacteria levels in the lower San Lorenzo River come from a combination of sources,
which may differ under wet versus dry conditions. Sampling during this study identified
locations where bacteria levels were high, indicating significant sources:
1. Large congregations of hundreds of waterfowl (particularly seagulls) occur in the shallows
and exposed sand bars in the tidal area of the River. Substantial increase in fecal coliform
has been measured downstream from the birds. Fecal contamination by birds, seals, and
other wildlife can pose a risk of illness to humans.
2. The storm drain pipes, catch basins, and wet wells serve as conveyances and likely reservoirs
of indicator bacteria and potential pathogens. Sources of bacteria in the storm drain system
include sewage spills, subsurface sewage leaks, and nonspecific, nonpoint sources of
bacteria in urban areas from pet waste, garbage, decaying vegetation, organic fertilizer, and
other sources. Subsurface sewage leaks were a likely source of the very high bacteria levels
during the summer in the storm drains on the west side of the River near the mouth. This
area is subject to high, salty groundwater during the summer.
3. During storm periods there is substantial bacteria contribution from upstream suburban areas
from nonspecific urban runoff, pets, livestock, and occasional septic system failures.
However, the bacterial contribution from the urban storm drains is even greater. Even during
storms, bacteria levels tend to increase as the River flows through Santa Cruz.
4. Accumulations of human waste, pet waste and garbage were observed in and adjacent to the
River within the flood control channel and upstream floodplain areas. These sources
represent a significant threat to water quality and public health, although chronically elevated
bacteria counts could not be directly tied to these sources.
You can lead the Environmental Protection Agency to water, but you can't make it think. That's what New York City has learned after suggesting changes to costly, needless regulations that the federal government is imposing on Gotham.
The regulations will cost billions, are "truly burdensome" and almost entirely useless, says New York City environmental commissioner Cas Holloway, who wrote a 15-page letter to the EPA explaining what is wrong with its analysis.
FOIA Lawsuit Targets U.S. Department of Energy for Withholding "Water Energy Roadmap" Ordered by Congress
Civil Society Institute Takes Action Based on Concerns That Report Critical of Nuclear & Coal Power Water Demands is Being Suppressed or Toned Down WASHINGTON , June 23, 2011 /PRNewswire-USNewswire/ -- A report ordered by Congress in 2005 on the connection between U.S. energy production and demands on water supplies is the target of a Freedom of Information Action (FOIA) lawsuit filed by the nonprofit and nonpartisan Civil Society Institute (CSI) against the U.S. Department of Energy (DOE) and U.S. Energy Secretary Steven Chu . The litigation was filed after DOE failed to respond to a CSI FOIA request for a so-far-unreleased second portion of a report on the relationship between the nation's water supplies and energy needs. CSI believes this portion of the report will address the water impacts of new electricity generation, including the potential impacts from additional nuclear reactors and from so-called "carbon capture and storage" (CCS) of carbon emitted from the combustion of coal. According to CSI's complaint, the first part of the report was made public in 2006, but the second portion, titled the "National Energy-Water Roadmap" and drafted by experts at the Sandia National Laboratories, has been held up since July 2006. According to the complaint: "On information and belief, DOE has blocked the issuance of the Roadmap over the last four years because it shows energy policy has not given adequate consideration to the nation's limited water resources." Pam Solo , founder and president, Civil Society Institute, said: "This is a classic example of why documents like this should be made public and in a timely fashion. In 2005, Congress mandated a water-energy blueprint as an essential piece of information for energy policy making. Without this roadmap, water availability and water quality issues remain unaddressed. As a result, Congress and the President are flying blind without a clear understanding of whether water is available for the proposed expansion of nuclear power plants and 'clean coal' plants under what is euphemistically being termed a 'Clean Energy Standard.' This is not a side issue, but a central and pivotal piece of data that should inform and guide energy decision making." Solo added: "We are deeply concerned by the appearance that the study was done and then buried (or is currently being watered down) because it raised major and legitimate concerns about the impact of new power generation on increasingly scarce U.S. water resources, particularly in chronically drought-afflicted portions of the nation. If this concern is not merited, then DOE should release the study and clear the air. If our concerns are well founded, we expect to learn more as we vigorously pursue the FOIA litigation." For a copy of the lawsuit, go to http://www.civilsocietyinstitute.org/doefoia.pdf on the Web. On January 25, 2011 , CSI released an analysis by Synapse Energy Economics, Inc., showing:
As growing swaths of the United States face dwindling water supplies and even outright drought, the U.S. electric sector already withdraws 42 trillion gallons of water each year – more than 200 billion gallons a day, the equivalent of more than half of the water flowing through the Ohio River each year.
Titled "Benefits of Beyond Business as Usual," the Synapse report for CSI notes: " ... we estimate that generators along the Ohio River withdraw so much water that for every gallon which spills into the Mississippi River at Cairo, IL , one cup has passed through a generator on the banks of the Ohio River, and one tablespoon has evaporated to the atmosphere ... According to data collected by the United States Geographic Survey (USGS), water withdrawals from thermoelectric power sources account for 49 percent of total withdrawals in the United States in 2005. This is equivalent to more than 201 billion gallons of water per day that is used for power plant cooling alone."
The nearly trillion gallons of water used by coal plant cooling systems each year represents over 2,000 gallons for each person in the US.
First Hearing Held on Congressman Smith's Small Scale Hydropower Act
Posted: Jun 23, 2011 12:34 PM PDT Updated: Jun 23, 2011 12:34 PM PDT
The following is a press release from Nebraska Congressman Adrian Smith: Washington, D.C. – Congressman Adrian Smith (R-NE) today participated in the House Committee on Natural Resources Water and Power Subcommittee's hearing about the bipartisan Small Scale Hydropower Enhancement Act (H.R. 795), which he introduced in February.
"Hydropower can and should play a critical role in our nation's clean, affordable, and reliable energy future," Smith said. "Most think hydropower is a resource requiring a massive dam, but advancements in smaller hydropower projects offer tremendous opportunity to expand this energy resource as a viable option for rural consumers. This bill would help stimulate the economy of rural America, empower local irrigation districts to generate revenue and increase domestic energy production - all at no cost to taxpayers."
Smith continued, "In addition to expanding clean, renewable energy, this bill explicitly removes one-size-fits-all federal regulations which stifle entrepreneurship and economic development across the nation. Catch-all federal regulations – many of which are unnecessary or outdated – stifle innovation in the small scale hydropower field by making projects financially prohibitive."
H.R. 975 would exempt hydropower projects generating less than one and a half megawatts from the Federal Regulatory Commission's (FERC) permitting rules. FERC regulates the licensing and inspection of private, municipal, and state hydroelectric projects.
In this update to the Nestle-McCloud story (see here ), Nestle is backing away from its current contract for exporting 500 million gallons (1,540AF or 1,900GL) from the area (at a price of about $0.70/1,000 gallons). Claiming that high fuel costs are changing the economics of the deal, Nestle is now saying they want to export mine 200 million gallons/year from a smaller facility -- probably for less money.
Critics of the new plan say that the agreement should be renegotiated and expire sooner than the 100 years currently on the table. They are right.
Bottom Line: Given that bottled spring water costs about $0.70/liter ($2.66/gallon) and Nestle is paying $0.70/1,000 gallons, I figure that McCloud can get more than its 0.026 percent share of the the retail price. Five percent of the retail price would mean that McCloud would make about $27 million per year (instead of $130,000/year) for its water. Now that's real money. Oh, and the agreement should also run for no more than 20 years. Water is only going to get more valuable. http://www.aguanomics.com/2008/05/nestle-blinks.html
NEHRP Seismic Design Technical Briefs Webinar Series: August 11, 2011
Seismic Design of Reinforced Concrete Special Moment Frames
NEHRP (National Earthquake Hazards Reduction Program) Technical Briefs are published by NIST, the National Institute of Standards and Technology, as aids to the efficient transfer of NEHRP and other research into practice, thereby helping to reduce the nation's losses from earthquakes. This NIST Technical Brief addresses the seismic design of cast-in-place reinforced concrete special moment frames. These frames are designated as one of the accepted seismic-force-resisting systems for concrete buildings assigned to Seismic Design Categories D, E, and F. The first chapter identifies the scope of the technical brief and the governing building codes. Chapter 2 identifies the common uses and geometries of special moment frames, which Chapter 3 describes the principles that govern their design. Chapter 4 explains code requirements for determination of design forces and drift limits. Chapter 5 explains requirements for proportioning and detailing of special moment frames. Chapters 6 and 7 identify additional requirements and challenges for practical detailing. The primary audience of the technical brief is the practicing structural engineer, although educators, students, and building officials also will find useful information. The compact form (under 30 pages) provides easy access for new users. Each session will award 1.5 hours of continuing education. The times will be 12:00 pm Pacific, 1:00 pm Mountain, 2:00 pm Central, and 3:00 pm Eastern Approved in All 50 States
The clare constat writ is one granted by the crown or a subject superior for the purpose of completing title of a vassal's heirs to lands held by the deceased vassal. Where the lands are leasehold the writ of acknowledgment under 20 and 21 Vict. c. 26 is used for the same purpose. By 40 and 41 Viet. c. 40 the form of warrant of execution on certain extracts of registered writs is amended. Extracts, of registered writs are to be equivalent to the registered writs them-selves. Writs registered in the register of sasines for preserva-tion only may afterwards be registered for preservation and execution. By 22 Geo. II. c. 48, passed for the purpose of assimi-lating the practice of outlawry for treason in Scotland to that in use in England, the court before which an indictment for treason or misprision of treason is found, is entitled on proper cause to issue writs of capias, proclamation, and exigent. Many writs are by the Stamp Act, 1870, chargeable with a duty of five shillings. In some respects the proceedings in parliamentary elections differ from those in use in England . Thus the writ in university elec-tions is directed to the vice-chancellors of Edinburgh and Glasgow respectively, but not to those of St Andrews and Aberdeen , and there is an extension of the time for the return in elections for Orkney and Shetland, and for the Wick burghs. Representative peers of Scotland were by the Act of Union to be elected after writ issued to the privy council of Scotland . On the abolition of the privy council a proclamation under the great seal was substituted by 6 Anne, c. 23.
United States.—Writs in United States courts are by Act of United Congress to be tested in the name of the chief justice of the United States . States. By State laws writs are generally bound to be in the name of the people of the State, in the English language, and tested in the name of a judge. AVrits of error have been the subject of much legislation by the United States and by the States. In New York writs of error and of ne exeat have been abolished. Writs as parts of real actions have been generally superseded, but in Massachu-setts a writ of entry on disseisin is still a mode of trying title. Writs of dower and of estrepement are still in use in some States. By the law of some States, e.g., New Jersey , writs of election are issued to supply casually occurring vacancies in the legislature.
Authorities.—The importance of the writ in procedure led to the compilation of a great body of law and precedent at an early date. In addition to the Registium Breviumlhave were, among other old works, the Natura Brevium, first published in 1525; Theloall, Le Digest des Briefes Originates (1579); Fitzherbert, Le Nouvel Natura Brevium (1588); OJfkina Brevium (1079). See too Coke upon Littleton , 158, 159, 2 Coke's Institutes, 39. Many precedents will also be found in the collection of Parliamentary Writs and in Stubbs's Select Charters. Old books of practice, such as Tidd's Practice, Corner's down Practice, and Booth On Real Actions, contained much law on the subject. For the history Spence's Equitable Jurisdiction, vol. i. bk. ii. ch. viii., Forsyth's Hist, of Trial by Jury, Stephen On Pleading, and Bigelow's Hist, of Procedure, ch. iv., may be consulted. There appears to be no book dealing with the writ in modern practice, but sufficient information is contained in the ordinary treatises on procedure. (J. Wf.)
EXECUTIVE OFFICE OF THE PRESIDENT OFFICE OF MANAGEMENT AND BUDGET WASHINGTON , D.C. 20503
April 7, 2011
M-11-13
MEMORANDUM FOR THE HEADS OF EXECUTIVE DEPARTMENTS AND AGENCIES FROM:
Jacob J. Lew~~
Director
SUBJECT:
Planning for Agency Operations During a Lapse in Government Funding
The current Continuing Resolution (CR) expires at the end of tomorrow, Friday April 8, 2011. We are deeply engaged in efforts to reach an agreement that cuts spending in a balanced way so that we do not have a government shutdown that could setback our economic recovery. Negotiations on the budget are continuing, and it remains possible that Congress will reach an agreement by midnight tomorrow on continued funding for the current fiscal year.
Yet at this late hour, responsible management requires that we be prepared if there is a lapse in appropriations. To that end, and pursuant to Section 124 of Circular A-II, the Office of Management and Budget (OMB) has been providing guidance and coordinating the efforts of the Executive Branch to facilitate appropriate contingency planning in accordance with the provisions of the Antideficiency Act. This Memorandum is being sent in conjunction with these efforts.
As part of the guidance that has been provided to you, OMB has referred agencies to legal opinions issued by the Attorney General and the Office of Legal Counsel (OLC) of the Department of Justice, which set forth the legal requirements imposed by the Antideficiency Act during a lapse in appropriations and the guiding standards that agencies should use in making decisions under the Act during a lapse in appropriations. In reviewing existing contingency plans, agency leaders are reminded of the agency's duty to make the determination of which agency activities qualify as "excepted" functions pursuant to applicable legal requirements, and to make the determination of which employees are needed for the performance of those "excepted" functions on a case-by-case basis.
We have received a number of technical questions about particular matters related to agency operations during a lapse in funding. As a result we have issued Frequently Asked Questions (FAQ) documents through the OMB MAX community system. (See Attachments) The F AQ documents provide an overview of relevant legal principles that apply to all government operations, address particular issues with contracts and grants, and answer questions relating to information technology, travel, orderly shutdown, and payment for excepted work.
EXECUTIVE OFFICE OF THE PRESIDENT OFFICE OF MANAGEMENT AND BUDGET WASHINGTON , D.C. 20503
April 7, 2011
M-11-13
MEMORANDUM FOR THE HEADS OF EXECUTIVE DEPARTMENTS AND AGENCIES FROM:
Jacob J.Lew~~
Director
SUBJECT:
Planning for Agency Operations During a Lapse in Government Funding
The current Continuing Resolution (CR) expires at the end of tomorrow, Friday April 8, 2011. We are deeply engaged in efforts to reach an agreement that cuts spending in a balanced way so that we do not have a government shutdown that could setback our economic recovery. Negotiations on the budget are continuing, and it remains possible that Congress will reach an agreement by midnight tomorrow on continued funding for the current fiscal year.
Yet at this late hour, responsible management requires that we be prepared if there is a lapse in appropriations. To that end, and pursuant to Section 124 of Circular A-II, the Office of Management and Budget (OMB) has been providing guidance and coordinating the efforts of the Executive Branch to facilitate appropriate contingency planning in accordance with the provisions of the Antideficiency Act. This Memorandum is being sent in conjunction with these efforts.
As part of the guidance that has been provided to you, OMB has referred agencies to legal opinions issued by the Attorney General and the Office of Legal Counsel (OLC) of the Department of Justice, which set forth the legal requirements imposed by the Antideficiency Act during a lapse in appropriations and the guiding standards that agencies should use in making decisions under the Act during a lapse in appropriations. In reviewing existing contingency plans, agency leaders are reminded of the agency's duty to make the determination of which agency activities qualify as "excepted" functions pursuant to applicable legal requirements, and to make the determination of which employees are needed for the performance of those "excepted" functions on a case-by-case basis.
We have received a number of technical questions about particular matters related to agency operations during a lapse in funding. As a result we have issued Frequently Asked Questions (FAQ) documents through the OMB MAX community system. (See Attachments) The F AQ documents provide an overview of relevant legal principles that apply to all government operations, address particular issues with contracts and grants, and answer questions relating to information technology, travel, orderly shutdown, and payment for excepted work.
Earlier this week, we encouraged agencies to reach out to their senior managers on logistical and managerial issues associated with executing agency contingency plans. We know that the current uncertainty and threat of a shutdown is a tremendous burden on Federal employees and therefore, earlier this week, we encouraged agencies to reach out to all employees regarding the possible lapse in appropriations. In addition, the Office of Personnel Management issued an F AQ to assist agencies and employees on personnel issues associated with a funding lapse, posted at http://www.opm.gov/furlough20 11.
We will remain in close communication until this situation is resolved to ensure that the
Executive Branch is prepared in case a funding lapse occurs. At this time, agencies should proceed
as follows:
Today, Thursday, April 7: You should continue to review your shutdown plans and begin the process of communicating the details of your plans to all employees. Your communications with an employee should address the expected status of that employee under a shutdown: that is, whether the employee would continue to report to work (either because the employee is paid from an appropriation that continues to remain available or because the employee would be needed for the agency's performance of its "excepted" functions) or instead would be placed on furlough as "non-excepted." An agency may , complete this communication electronically if appropriate. Agencies also are encouraged to conduct appropriate outreach to unions, State, local and tribal governments, grantees, contractors, Congressional committees, and other stakeholders.
Tomorrow, Friday, April 8: As noted, the current CR expires at midnight tomorrow. Therefore, tomorrow is a normal workday for the Federal Government, and all employees should report to work as normal. Agencies must complete the process of communicating to all employees their status under a shutdown no later than the end of the day tomorrow.
We will advise you tomorrow of further developments, including whether a new CR will likely be enacted. If we inform you tomorrow that a new CR is not likely to be enacted, then you should prepare to implement your shutdown plan beginning on Saturday, April 9. In that case, agencies must instruct non-excepted employees (including those who do not have a weekend work schedule) that they are prohibited, pursuant to the legal requirements of the Antideficiency Act, from performing any work over the weekend pending further notice. This means that the non-excepted employees will be prohibited, after midnight on Friday night, from working remotely, such as from home --including by accessing agency information technology (e.g., Blackberries, cell phones, computers, laptops), except to the extent that the agency's contingency plan provides for the agency to use such technology to provide non-excepted employees with updates regarding their furlough and return-to-work status. Also, as noted below, there may be circumstances in which certain employees are accessing agency information technology remotely for a brief period to carry out de minimis shutdown related activities.
If there is a lapse in appropriations, during the employee's next scheduled work day (i.e., Saturday or Sunday for weekend employees; Monday for all other employees), an agency
shall have its non-excepted employees perform -for up to a half-day (e.g., up to four
hours) -such "orderly shutdown" activities as are needed for the agency's implementation
of its contingency plan (e.g., turning in equipment if required). Non-excepted employees
who are scheduled to telework on their next scheduled work day may perfonn these
shutdown activities from their telework location, if an existing telework agreement is in
place. In addition, agencies at their discretion may allow other employees to conduct
shutdown activities from a remote location, even without an existing telework agreement,
ifthe nature of the employees' shutdown activities are de minimis (i.e., can be completed in
approximately 15 minutes). For example, such activities would include receiving and
acknowledging receipt of an electronic furlough notice and adjusting voicemail and email
to reflect current work status. All other non-excepted employees will be expected to
report to work on their next scheduled work day to carry out orderly shutdown activities.
Saturday, April 9/Sunday, April 10/Monday, April 11: During the weekend, we will advise you further, depending on the status of appropriations action, as follows:
Normal Operations: If it is apparent late Friday evening or early Saturday that a new CR is likely to be enacted on Saturday, OMB will instruct agencies to operate in a normal manner (and not engage in shutdown activities).
Shutdown: Ifno new CR is likely to be enacted on Saturday, OMB will issue
instructions on Saturday for agencies to proceed with their shutdown
implementation, initiating the orderly shutdown by non-excepted employees.
Agencies will need to issue furlough notices to non-excepted employees during the
next scheduled work day (Saturday or Sunday for weekend employees and Monday
for all other employees). Agencies are encouraged to issue furlough notices
electronically to employees where possible. Absent compelling circumstances,
agencies should complete orderly shutdown activities for non-excepted personnel
within the first half-day (i.e., up to four hours) of an employee's nonnal work
schedule.
Agency leaders with questions on the contents of this Memorandum should contact Jeffrey Zients, OMB's Deputy Director for Management, who is leading shutdown coordination. Your staff should direct queries to your OMB Resource Management Office or your agency's Office of General Counsel.
We greatly appreciate your cooperation during this time of uncertainty. We will continue to keep in close contact with you as developments unfold.
Attachments
Attachment 1
April 1,2011
Frequently Asked Questions on Contracting, Grant Administration, and Payment Processing During a Lapse in Appropriations
As agencies continue their ongoing, routine efforts to update contingency plans, several questions have arisen about some cross-cutting issues. The below FAQ is meant to provide answers to them in a way that is understandable, accessible, and convenient to agencies. If you have further questions, please consult your agency counselor your appropriate points of contact within the Office of Management & Budget.
Normally, routine, ongoing operational and administrative activities relating to contract or grant administration (including payment processing) cannot continue when there is a gap in funding. Therefore, agency employees who are paid with annual appropriations and who perform an activity associated with contract or grant administration (including oversight, inspection, payment, or accounting) should generally not continue work during a funding hiatus.
Below is an outline of the general principles that govern an agency's operations during a lapse in appropriations. Following this outline is a set ofQ&As, based on these principles, for agencies to use in addressing contract and grant situations that arise during a lapse in appropriations.
The outline and Q&As are based on the legal opinions issued by the Justice Department (DOl), and the guidance issued by the Office of Management and Budget (OMB), regarding agency operations during a lapse in appropriations (see, generally, OMB Circular A-II, Section 124). To the extent that agency staff need further guidance regarding the situations addressed below, or on other situations involving contracts and grants, the staff should consult with the agency counsel, which may in turn consult with OMB and DOl.
I. Basic Principles of Agency Operations During a Lapse in Appropriations.
The Antideficiency Act prohibits agencies from incurring obligations that are in advance of, or that exceed, an appropriation. Thus, with certain limited exceptions, an agency may not incur obligations when the funding source for the obligation is an appropriation that has lapsed.
A. Excepted activities under the Antideficiency Act (express statutory authorizations, emergency circumstances, and the President's constitutional authorities).
As DOl has explained in its opinions, an agency may incur an obligation in the absence of an appropriation in certain "excepted" situations:
A statute or other legal requirement expressly authorizes an agency to obligate funds in advance of appropriations.
In very rare situations, Congress has granted an agency the statutory authority to incur obligations in advance of appropriations. The best known example, in the contracting realm, is the Civil War-era Feed and Forage Act (41 U.S.C. § 6301), which provides authority to the Defense Department to contract for necessary clothing, subsistence, forage, fuel, quarters, transportation or medical and hospital supplies in advance of appropriations. Other examples are the authorities provided by 25 U.S.C. § 99 (Bureau ofIndian Affairs contracts for goods and supplies) and 41
U.S.C. § 6302 (Army contracts for fuel).
2. The function addresses emergency circumstances, such that the suspension of the function would imminently threaten the safety of human life or the protection of property.
As DOJ has explained, the emergency exception applies when both of the following exist:
(a) a reasonable and articulable connection between the obligation (in this case, involving a contract or grant) and the safety of life or the protection of property, and
(b) some reasonable likelihood that either the safety of life or the protection of property would be compromised in some significant degree by failure to carry out the function in question --and that the threat to life or property can be reasonably said to be near at hand and demanding of immediate response.
As the Antideficiency Act states, the emergency exception does not authorize the continuation of ongoing, regular functions of government, the suspension ofwhich would not imminently threaten the safety of human life or the protection of property.
3. The function is necessary to the discharge of the President's constitutional duties and powers (e.g., Commander-in-Chief or conducting foreign relations).
B. Activities that an agency must continue, in the absence of appropriations, because their continuation is "necessarily implied" from the authorized continuation of other activities.
In addition, as DOJ has explained, there are a limited number of government activities which an agency must otherwise continue despite a lapse in their appropriations because the lawful continuation of other funded or excepted activities "necessarily implies" that these additional activities will continue as well. A "necessary implication" can arise when an agency needs to incur obligations, even though there has been a lapse in the appropriation against which those obligations would be charged, in order to implement:
1. An "orderly shutdown" when there has been a lapse in appropriations (as the Justice Department has explained, "authority may be inferred from the Antideficiency Act itself for federal officers to incur those minimal obligations necessary to closing their agencies"),
• One of the "excepted" activities in LA. above, or
• A congressionally authorized or appropriated function for which Congress has provided funding that remains available during the lapse (including funds already obligated from the current fiscal year), where the suspension of the related activity (during the funding lapse) would prevent or significantly damage the execution of the terms of the statutory authorization or appropriation. The touchstone of the analysis is determining whether execution of the terms of the statutory provision -not the terms of the funded contract or grant pursuant to that statute -would be significantly damaged in the absence of immediate performance of the unfunded, related activity.
As DO] has explained, an example of a "necessarily implied" activity, for which obligations can continue to be incurred despite a funding lapse, are the administrative activities (funded out of annual appropriation) that are necessary to disburse benefit payments under entitlement programs, such as social security benefits, for which an indefinite appropriation provides the funding for the benefits (and for which there is a congressional authorization to make regular payments to beneficiaries).
However, as DO] has also explained, a "necessary implication" may not ordinarily be inferred from the kind of broad, categorical authority that often appears in the organic statutes of government agencies.
Moreover, the fact that an agency has unobligated balances (appropriated in a prior fiscal year on a multi-year or no-year basis) that continue to remain available for funding a program does not, in itself, demonstrate that the incurring of obligations for related activities (for which there has been a lapse in appropriations) is necessarily implied. In this regard, it is often the case that agencies possess discretion with respect to when, during the period of availability, the agency engages in activities for which Congress has provided funding. Furthermore, in those cases when Congress has provided funding on a multi-year or no-year basis, the agency may often possess substantial discretion with respect to the timing of when the agency carries out these funded activities. In such situations, where an agency is not otherwise compelled by the terms of a statute to engage in a funded activity during a period in which there is a lapse in appropriations, there is not a "necessary implication" that the agency must incur obligations for related activities for which the appropriation has lapsed.
II. Questions and Answers on Contracts and Grants.
The following Q&As address principally the impact on contract and grant activity of a lapse of appropriations, with respect to an agency incurring obligations for the contract or grant itself as well as for the administrative activities in support thereof.
Of course, in the situation in which performance under an already-issued contract or grant is not impacted by such a lapse, the contractor or grantee may continue to proceed with its work during the lapse period. An example is the situation where an agency has already obligated funds representing the entire price under a contract or task order before the funding lapse began, or where the agency may use multi-year or no-year funds to incur new obligations for the contract or grant. This assumes there is no problem with funding for any necessary related activities, for example, by federal employees overseeing the contract or grant. The question of what to do if necessary activities related to the contract or grant are funded out of lapsed appropriations is addressed in Question 5 below.
A. Incurring New Obligations for Contracts or Grants.
Q1. When an appropriation has lapsed, mayan agency incur a new obligation -by signing a new contract or grant, or by extending a contract or a grant, or by exercising a renewal option -when the funding source for that obligation would be the lapsed appropriation?
A1: No -except in very limited circumstances.
The Antideficiency Act prohibits agencies from incurring obligations that are in advance of, or that exceed, an appropriation. Thus, except in certain limited circumstances, an agency may not incur obligations when the funding source for the obligation would be an appropriation that has lapsed. As outlined above in l.A.-B., these limited circumstances are when:
• A statute expressly authorizes an agency to obligate funds in advance of appropriations.
• The function addresses emergency circumstances, such that the suspension of the function would imminently threaten the safety of human life or the protection of property.
• The function is necessary to the discharge of the President's constitutional duties and powers.
• The agency must continue the function, in the absence of appropriations, because its continuation is "necessarily implied" from the continuation of other authorized activities.
In these limited circumstances, an agency may incur the obligation (e.g., by awarding a contract to support an emergency activity, such as the minimal necessary guard services to protect a facility), but the agency cannot pay the contractor until appropriations are enacted. Agency staff should work with agency counsel to establish if such an exception may be appropriately invoked.
Q2. Mayan agency incur a new contractual or grant obligation in order to address emergency circumstances, even though the annual appropriation, against which the obligation would be charged, has lapsed?
A2: Yes, if the new obligation is necessary to address emergency circumstances that imminently threaten the safety of human life or the protection of property. See l.A.2., above, and the DO] opinions that address the emergency exception. the lapse period. An example is the situation where an agency has already obligated funds representing the entire price under a contract or task order before the funding lapse began, or where the agency may use multi-year or no-year funds to incur new obligations for the contract or grant. This assumes there is no problem with funding for any necessary related activities, for example, by federal employees overseeing the contract or grant. The question of what to do if necessary activities related to the contract or grant are funded out of lapsed appropriations is addressed in Question 5 below.
A. Incurring New Obligations for Contracts or Grants.
Q1. When an appropriation has lapsed, mayan agency incur a new obligation -by signing a new contract or grant, or by extending a contract or a grant, or by exercising a renewal option -when the funding source for that obligation would be the lapsed appropriation?
A1: No -except in very limited circumstances.
The Antideficiency Act prohibits agencies from incurring obligations that are in advance of, or that exceed, an appropriation. Thus, except in certain limited circumstances, an agency may not incur obligations when the funding source for the obligation would be an appropriation that has lapsed. As outlined above in l.A.-B., these limited circumstances are when:
• A statute expressly authorizes an agency to obligate funds in advance of appropriations.
• The function addresses emergency circumstances, such that the suspension of the function would imminently threaten the safety of human life or the protection of property.
• The function is necessary to the discharge of the President's constitutional duties and powers.
• The agency must continue the function, in the absence of appropriations, because its continuation is "necessarily implied" from the continuation of other authorized activities.
In these limited circumstances, an agency may incur the obligation (e.g., by awarding a contract to support an emergency activity, such as the minimal necessary guard services to protect a facility), but the agency cannot pay the contractor until appropriations are enacted. Agency staff should work with agency counsel to establish if such an exception may be appropriately invoked.
Q2. Mayan agency incur a new contractual or grant obligation in order to address emergency circumstances, even though the annual appropriation, against which the obligation would be charged, has lapsed?
A2: Yes, ifthe new obligation is nec~ssary to address emergency circumstances that imminently threaten the safety of human life or the protection of property. See l.A.2., above, and the DO] opinions that address the emergency exception. Q3. Mayan agency incur a new contractual or grant obligation -even though the
appropriation for this obligation has lapsed -as part of the agency carrying out a program
that is separately funded through an appropriation that remains available?
A3: That depends on whether the authority to incur the obligation during the lapse is a "necessary implication" of the program (see I.B. above).
Q4: Mayan agency incur a new contractual or grant obligation that would be charged against an appropriation that remains available for obligation if the agency would not incur any related obligations (such as for administrative activities by agency employees) for which the appropriation has lapsed?
A4: Yes. In this situation, the agency may incur the new contractual or grant obligation, since both the contract or grant obligation itself, as well as the obligations for necessary related activities (e.g., the administrative actions that are needed in order for the agency to incur the contract or grant obligation), may be charged against an available appropriation.
B. Continued Performance of Administrative, Supervisory, or Support Activities, During a Funding Lapse, In Connection With a Previously-Awarded Contract or Grant.
QS: The agency has previously awarded a contract or grant, and the contractor or grantee is in the midst of performance. If there has been a lapse in the appropriation that funds the Federal employees who supervise or support the performance of the contract or grant, can the Federal employees continue these activities during the funding lapse?
AS: In most cases, the absence of appropriations would prevent the continuation of such supervision or support. Routine ongoing activities, related to the agency's contract and grant administration, would not usually be authorized to continue when there has been a lapse in the appropriation that funds the contract and grant administration activities. In other words, during a funding lapse, the performance -by contracting officers, contracting officer technical representatives, contract administration personnel, and grants management specialists -of routine oversight, inspection, accounting, administration, payment processing, and other contracting or grant management activity would generally not continue.
There are very limited circumstances under which such work may continue, notwithstanding the lapse in appropriations. As is further explained in LB. above, these limited circumstances are when the continued performance of the contract or grants administration is "necessarily implied" for carrying out:
• An "orderly shutdown" when there has been a lapse in appropriations,
• One of the "excepted" activities in LA. above (i.e., express statutory authorizations, emergency circumstances, and the President's constitutional authorities), or A congressionally authorized or appropriated function for which Congress has provided funding that remains available during the lapse, where the suspension of the related activity (during the funding lapse) would prevent or significantly damage the execution of the terms of the statutory authorization or appropriation.
For example, in the situation where an agency has awarded a contract to provide services that are necessary to address emergency circumstances that pose an imminent threat to life or property, some contract administration might well be necessary in order to enable this "excepted" activity to accomplish its objective (e.g., where a contractor cannot perform an emergency service unless the contractor receives direction from the contracting officer regarding how and where to proceed). In that situation, that direction by the contracting officer would be a "necessarily implied" activity, and thus could occur even though there has been a lapse in the appropriation that funds contract administration.
Another example might be a grant program that cannot proceed to the next milestone, under the previously-awarded grant, unless the grant administrator provides approval to the grantee for its continued performance. If the grant program is one that is mandated by Congress, and if failing to proceed to that next milestone -during the period of the funding lapse -would violate a statutory timetable, then in that case the review and approval by the grant administrator would be a "necessarily implied" activity, and thus could occur even though there has been a lapse in the appropriation that funds grant administration. Again, the touchstone of the analysis is determining whether execution of the terms of the statutory authorization or appropriation for which funding remains available -not the terms of the funded contract or grant pursuant to that statute -would be significantly damaged in the absence of performance of the unfunded activity.
These situations are expected to be very limited ones, and the employee may be excepted from furlough only for the bare minimum of time necessary to carry out the review and approval.
Q6: The agency has previously awarded a contract or grant, and the contractor or grantee is in the midst of performance. In addition, the agency has determined that, due to a lapse in the appropriation that funds the Federal employees who supervise or support the performance of the contract or grant, those Federal employees cannot continue these activities during the funding lapse. In the absence of such supervision or support, may the contractor or grantee nevertheless continue performance?
A6: If the continued supervision or support, during the lapse period, is not critical to the contractor's or grantee's continued performance during that period, then the contractor or grantee may continue to proceed with its work. This is the case, for example, if an agency had obligated funds representing the entire price for a good or service under a contract or task order before the funding lapse began. In that example, the agency would not have to issue an affirmative direction to the contractor or grantee to continue performance, such as a notice to proceed. Instead, the contractor or grantee could continue to engage in performance. (It is always prudent to be in communication with the contractor or grantee to avoid a misunderstanding.) However, depending on the duration of a funding lapse, the absence of available Federal employee oversight may lead an agency to reconsider whether the contract or grant activity should continue to be performed. In particular, if the continued supervision or support, during the lapse period, is critical to the contractor's or grantee's continued performance during that period, then -where consistent with law and the terms of the contract or grant -the agency should instruct the contractor or grantee to suspend performance.
The same would be true if continued performance depends on the participation of other Federal agencies or the availability of other Federal facilities that would be precluded by the lapse of appropriations.
Q7: The agency has previously awarded a contract or grant, and the contractor or grantee is in the midst of performance. In addition, the agency has determined that the continued performance of the contract or grant, during a lapse in appropriations, does not require the supervision or support of Federal employees who may not continue to perform these activities during the funding lapse. In that case, should performance of the contract or grant always continue during the funding lapse?
A 7: The first consideration is whether continued performance of the contract or grant is required in order for the agency to comply with its authorization or appropriations statute. If it is the case that continued performance is statutorily required, then performance should proceed.
If continued performance is not statutorily required, then the agency should consider whether having the contract move forward is a sensible use of taxpayer funds in light of the lapse of appropriations. In this regard, there might be situations in which the continued performance of a contract would be wasteful due to the impact that the funding lapse is having on other agency activities. For example, if a Federal building is closed due to the funding lapse, it might be wasteful to have a contractor perform its normal duties of emptying trash cans every day in the building'S offices. In that situation, the agency should consider whether to have the contractor suspend performance.
If an agency decides that continued performance would be wasteful and thus should be suspended during the funding lapse, the agency should take appropriate contractual action (which would be part of the agency's orderly-shutdown activities). Contracting staff will need to work closely with agency counsel in making and implementing these decisions to minimize costs to the government.
Q8: Is the duration of a funding lapse a factor in the analysis in Q&As 5-7?
A8: Yes. In evaluating whether, and to what extent, Federal employee activities -and contractor or grant performance -should continue during a lapse in appropriations, agencies should consider whether these activities or the performance can be postponed until after appropriations are enacted. In some cases, activities and performance would not qualify for continuation during a very brief
funding lapse (under the analysis in Q&As 5-7), but they would qualify if the duration of the
funding lapse became longer.
In other cases, the opposite conclusion should be reached, namely, that activities or performance which would qualify for continuation at the outset of a funding lapse, or at some point during a funding lapse, become unnecessary -having been discharged -and thus should be discontinued
(e.g. in the case of an agency's initial shutdown activities, or in the case of the one-time, grant-administrator approval that is discussed in the answer to Question 5).
Another situation in which the duration of a funding lapse can have a significant impact on the analysis is where the agency had previously awarded a contract or grant, and -under the analysis in Q&As 5-7 -the contractor or grantee could continue to perform during the initial period of the funding lapse. However, if the funding lapse extended for a sufficiently long period, a situation might arise in which continued performance could occur only if the agency obligated additional funds to the contract or grant. Whether the agency could obligate such additional funds would depend on whether the lapse of appropriations includes the funding for the contract or grant payments, and/or for the contract or grants administration, and whether the continued performance would be wasteful because of the impact of the funding lapse on other agency activities. The agency would therefore need to undertake the analysis under Q&As 2-8 to determine how to proceed in that situation. If the agency determines that the contract or grant performance should discontinue due to the funding lapse, then the agency would not obligate additional funds to the contract or grant, and the contactor or grant would cease work when the previously-obligated funds run out. (Agencies would be well advised to communicate with contractors to avoid any misunderstanding. )
C. Making Payments to Contractors and Grantees during a Lapse in Appropriations
Q9: In the case of a contract or grant that has been previously awarded (and thus for which available funds were obligated), can Federal employees be excepted from furlough in order to make timely payments to the contractor or grantee in accordance with the contract or grant?
A9: No -except in very limited circumstances.
During a lapse in appropriations, the activity of making contract and grant payments on a timely basis does not, by itself, qualify as one of the limited circumstances for which obligations can be incurred under the Antideficiency Act (as outlined in l.A.-B., above). In this regard, the fact that the government would incur interest penalties under the Prompt Payment Act or other law, due to the delay in payment caused by a funding lapse, does not provide a legal justification under the Antideficiency Act for an agency to continue to make payments during a funding lapse.
An exception would exist in the very limited situation in which making the payment to a contractor or grant -during the funding lapse -is "necessarily implied" under the analysis outlined in LB., above. There may be very limited circumstances where making a payment, during the funding lapse, is necessary because the agency's failure to make the payment -during the funding lapseitself would result in an imminent threat to life or property, or would critically impair the President's constitutional functions, or would prevent or significantly damage the execution of a congressionally authorized and funded function. In that latter situation (applying the analysis in
I.B.3., above), the agency must determine that (1) the continuation of the program during the funding lapse has been contemplated by Congress in authorizing or appropriations legislation, (2) the agency's failure to make the payment during the funding lapse would delay contract or grant performance, and (3) this delay in payment would significantly damage the execution ofthe terms of the authorizing or appropriations legislative provision.
Q10: Can an agency pay a contractor or grantee, during a funding lapse, for performance under a contract or grant that the agency awarded during the funding lapse under one of the exceptions to the Antideficiency Act (see Q&As 1-2)?
A10: No. As is the case with federal employees who are excepted from furlough to perform authorized activities during a funding lapse, the agency will incur obligations for the excepted work that a contractor or grantee is authorized to perform during a funding lapse. However, as with the pay of the excepted federal employees, the agency cannot liquidate those contract and grant obligations until an appropriation is enacted.
D. Can Non-furloughed Employees Perform Other Work?
Qll: The agency has excepted, from furlough, employees who are performing necessary contract or grant support functions for an "excepted" activity or under the "necessarily implied" standard. Can these employees also continue to perform other work (that is not for an excepted activity and is not "necessarily implied") during the remaining hours of the workday?
All: If the non-furlough ("excepted') support function can be performed in less than an entire day, the employee is required to resume furlough status after completing the function.
However, there may be cases in which an employee is required to perform this "excepted" support function intermittently throughout the course of the day, and the intervals in between are too short to enable the employee to be furloughed and then recalled in time to perform the function. In such cases, the employee may remain at work, and may perform non-"excepted" functions during these intervals. In such situations, agencies must minimize the number of employees who are performing "excepted" functions on an intermittent basis, by consolidating the "excepted" functions, to the extent possible, for performance by a smaller number of employees (e.g., agencies should not except, from furlough, multiple employees in order to perform intermittent "excepted" work, when instead the agency could have fewer employees perform the "excepted" work on more of a full-time basis). In this way, the agency properly minimizes its reliance on the Antideficiency Act to incur obligations for which the appropriation has lapsed. Attachment 2
April 5, 2011
Supplement to Frequently Asked Questions Concerning Contingency Planning for Lapse in Appropriations
The FAQs below are designed to respond to additional questions posed by agencies concerning IT, travel, orderly shutdown, and entitlement to payment for excepted work in the event ofa lapse in appropriations, and build upon the Basic Principles ofAgency Operations During a Lapse in Appropriations that were set forth in the FA Qs on Contracting, Grant Administration, and Payment Processing During a Lapse in Appropriations.
A: Information Technology
QI: What is the controlling consideration for the continuity or suspension ofIT operations for an agency during a lapse in appropriations?
AI: The consideration governing all determinations concerning continuity or suspension of Federal activities funded through lapsed appropriations is that such activities, including IT operations, may continue only if they are excepted activities under the Antideficiency Act, or where their continuation is necessarily implied from a congressional authorization or appropriation ofother continued functions. See "Basic Principles ofAgency Operations During a Lapse in Appropriations," in F AQs on Contracting, Grant Administration, and Payment Processing During a Lapse in Appropriations. https:llmax.omb.gov/community/x/2Z7zIQ.
Q2: How should agencies determine what systems, including linked interoperable systems, are to be maintained and operated during an appropriations lapse?
A2: If a single system must operate to avoid significant damage to the execution of authorized or excepted activities, only this system should maintain operations, and support for continued operation of the single system (whether by agency IT staff or by a contractor) should be the minimum necessary to maintain functionality and ensure the security and integrity of the system during the period of the lapse. If the integration of that system with other systems makes it infeasible to maintain operation of the single system without maintaining others with which it is integrated, an agency must provide guidance on operations consistent with avoiding any imminent threat to Federal property (including avoiding any permanent disruption to agency IT systems and ensuring preservation of agency electronic records). Given that websites represent the front-end of numerous back-end processing systems, agencies must determine whether the entire website can be shut down or components of the website will be shut down. Q3: What is the guidance on keeping Government websites up during a lapse in appropriations if the costs of maintaining the website are funded by a lapsed appropriations source?
A3: The same standards described above would apply. The mere benefit ofcontinued access by the public to information about the agency's activities would not warrant the retention ofpersonnel or the obligation offunds to maintain (or update) the agency's website during such a lapse. However, if maintenance of the website is necessary to avoid significant damage to the execution of authorized or excepted activities (e.g., maintenance of the IRS website may be necessary to allow for tax filings and tax collection, which are activities that continue during an appropriations lapse), then the website should remain operational even if its costs are funded through appropriations that have lapsed. If it becomes necessary to incur obligations to ensure that a website remains available in support of excepted activities, it should be maintained at the lowest possible level. For example, in the IRS case above, the IRS website would remain active, but the entire Treasury Department website would not, absent a separate justification or a determination that the two sites cannot not feasibly be operated separately.
Q4: What notice should agencies provide to the public regarding the status of their websites during a lapse of appropriations?
A4: If an agency's website is shut down, users should be directed to a standard notice that the website is unavailable during the period of government shutdown. If any part of an agency's website is available, agencies should include a standard notice on their landing pages that notifies the public of the following: (a) information on the website may not be up to date, (b) transactions submitted via the website might not be processed until appropriations are enacted, and (c) the agency may not be able to respond to inquiries until appropriations are enacted.
QS: What if the cost of shutting down a website exceeds the cost of, maintaining services?
AS: The determination of which services continue during an appropriations lapse is not affected by whether the costs of shutdown exceed the costs of maintaining services.
Q6: If websites are down, will agencies be able to extend deadlines for applications that would otherwise have been due during the lapse in appropriations?
A6: To the extent permitted by law, agencies may extend deadlines for activities, as necessary to compensate for the period of the lapse in appropriations and the unavailability ofthe website.
Q7: What is the guidance regarding the use of mobile devices such as Blackberries, or home access to work email through Secure ID?
A 7: Furloughed employees should be given clear guidance that the prohibitions of the Antideficiency Act extend to work performed from outside of the office, including via mobile devices or remote computer connections. Orderly shutdown procedures should not rely on mobile devices or home access to work email for providing notices of when to return to work. Agencies have discretion to enforce these access restrictions in light of their own particular needs. Some may choose, for example, to include in orderly shutdown activities a requirement that furloughed employees turn in their Blackberries until they return to the office; others may determine that circumstances warrant a different approach.
B. Orderly Shutdown
Q8: How long should "orderly shutdown" take?
A8: Ordinarily, furloughed employees should take no more than three or four hours to provide necessary notices and contact information, secure their files, complete time and attendance records, and otherwise make preparations to preserve their work. OMB Circular A-II requires agencies to provide OMB with written justification for the conduct of orderly shutdown activities in excess ofa half-day. While it may be appropriate in limited circumstances for some employees to take longer to assist in shutdown activities (e.g., seeking court continuances or stop-work orders on pending contracts), these may not be necessary in the event that a very short period ofa lapse in appropriations is anticipated. Agencies should make every effort to prepare for these needs in advance of a lapse so that orderly shutdown activities are minimized.
Q9: In the event of a lapse on a Friday, when would employees whose schedule is a normal Monday-Friday work week and who are funded by annual appropriations be expected to conduct orderly shutdown activities?
A9: They should be directed to return to work on the following Monday morning to conduct such activities.
QIO: Does this mean that they can continue to work remotely over the preceding weekend?
AIO: No. Following a lapse in appropriations, the Antideficiency Act bars nonexcepted work by such employees other than to perform orderly shutdown activities.
c. Travel
Qll: If employees funded through appropriations that have lapsed are on temporary duty assignments away from their normal duty stations at the time of an appropriations lapse, can they make arrangements to return home sooner than planned?
All: They are encouraged to do so wherever reasonable and practicable. However, agencies should make a determination ofreasonableness and practicality based on the length ofthe assignment and the time required for return travel, compared to the anticipated length ofthe lapse, so as to minimize the burdens of doing so. D. Entitlement to Payment for Excepted Work
Ql2: How will excepted employees be paid for excepted work required during the lapse in appropriations?
• Al2: Without further specific direction or enactment by Congress, all excepted employees are entitled to receive payment for obligations incurred by their agencies for their performance of excepted work during the period of the appropriations lapse. After appropriations are enacted, payroll centers will pay all excepted employees for time worked.
Key references for this section include:
< Guidance for Conducting Remedial Investigations and Feasibility Studies under CERCLA, Interim
Final, EPA, OSWER Directive 9355.3-01, October 1988.
< Guide for Conducting Treatability Studies under CERCLA, Interim Final, EPA 540/2-89/058,
December 1989.
< Treatability Studies under CERCLA: An Overview, EPA, OSWER Directive 9380.3-02FS,
December 1989.
< The Remedial Investigation: Site Characterization and Treatability Studies, EPA, OSWER
Directive 9355.3-01FS2, November 1989.
• The treatability study is also conducted to reduce treatment alternative cost and performance
uncertainties to acceptable levels so that a remedy can be selected.
• The decision to conduct treatability testing may be made during project scoping if information indicates
such testing is desirable. In some situations, a specific technology that appears to offer a substantial
savings in costs or significantly greater performance capabilities may not be identified until the later
phases of the RI/FS. Under such circumstances, it may be advantageous to postpone completion of
the RI/FS until treatability studies can be completed.
• Some technologies always require treatability testing:
< Stabilization -- reagent blend
< Soil washing -- solvent efficiency
< Vitrification -- glass quality
• These are generally innovative technologies.
• Certain technologies have been demonstrated sufficiently so that site-specific information collected
during site characterization is adequate to evaluate and cost those technologies without conducting
treatability testing. For example, a groundwater investigation usually provides sufficient information for
which to size a packed tower air stripper and prepare a comparative cost estimate.
• The need for treatability testing should be identified during project scoping to avoid delays in the RI/FS
schedule. During scoping, a literature survey should be conducted to gather information on a
technology's applicability, performance, etc.
• If practical candidate technologies have not been sufficiently demonstrated or cannot be adequately
evaluated based on available information, treatability testing should be performed.
• Bench testing usually is performed in a lab, where comparatively small volumes of waste are tested for
the individual parameters of a treatment technology.
• Bench tests are typically performed for projects involving treatment or destruction technologies.
• Pilot studies are intended to simulate the physical as well as chemical parameters of a full-scale
process; therefore, the treatment unit size and the volume of waste to be processed in pilot systems
greatly increase over those of bench scale.
• Pilot units are intended to bridge the gap between bench and full-scale and are intended to more
accurately simulate the operation of the full-scale process than bench-scale testing.
• For a technology that is well developed and tested, bench studies are often sufficient to evaluate
performance on new wastes. For innovative technologies, however, pilot tests may be required
because information necessary to conduct full-scale tests is either limited or nonexistent.
• Pilot-scale studies should be limited to situations in which bench-scale testing or field sampling provide
insufficient information from which to evaluate an alternative.
• Section 5.4 of EPA's RI/FS Guidance provides more detail on bench vs. pilot testing.
• Because substantial quantities of material may be processed in a pilot test and because of the
material's hazardous nature, special precautions may be required in handling transport and disposal of
processed waste. It may be necessary to obtain an agreement with a local sewer authority or
cognizant state agencies or to obtain a NPDES permit for off-site discharge of treated effluent. Solid
residuals must be disposed of properly or stored on site to be addressed as part of the remedial action.
• 40 CFR Parts 260 and 261 provide details on the treatability sample exemption.
�� Site characterization is adequate when:
– DQO’s are met
– Risk posed by the site are adequately defined
– Need for remedial action (or lack thereof) is demonstrated
– Rationale for selecting a remedial action objective is
supported
�� Treatability studies are used to determine whether a
technology will be successful in meeting remedial
action goals. Information collected during
treatability study will be used to select the remedial
action.
�� Superfund Innovative Technology Evaluation (SITE)
Program
�� ORD/RREL Technology Support Branch Ben
Blaney (513-569-7406) START program
�� Guide for Conducting Treatability Studies Under
CERCLA, Interim Final, EPA/540/2-89/058, December
1989. (www.epa.gov/oswer)
�� Technology Screening Guide for Treatment of
Contaminated Soils and Sludges, EPA/540/2-88/004,
September 1989
�� Treatability Study Clearinghouse Abstracts,
EPA/540/2-89/001, August 1989
Site Characterization and Treatability Studies
• These sources generally are only appropriate for organic and inorganic constituents and are less
likely to address radiological contamination.
The U.S. Environmental Protection Agency (EPA) has granted emergency approval for the use of the neonicotinoid pesticide dinotefuran to control brown marmorated stink bugs in seven eastern states. Dinotefuran is a member of the neonicotinoid family of systemic pesticides that is known to be highly toxic to bees and associated with Colony Collapse Disorder . The states of Delaware, Maryland, New Jersey, North Carolina, Pennsylvania, Virginia, and West Virginia had previously asked EPA for emergency approval of the pesticide due to a ballooning stink bug population. The short term emergency measure became effective June 24 and will expire on October 15 of this year.
Neonicotinoids, including dinotefuran, are taken up by a plant's vascular system and expressed through pollen, nectar and gutation droplets from which pollinators such as bees then forage and drink. Neonicotinoids kill sucking and chewing insects by disrupting their nervous systems. Beginning in the late 1990s, these systemic insecticides began to take over the seed treatment market. Clothianidin and imidacloprid are two of the most commonly used neonicotinoid pesticides. Both are known to be toxic to insect pollinators, and are lead suspects as causal factors in honey bee colony collapse disorder .
The brown marmorated stink bug is a non-native species thought to have been accidentally introduced to North America from Asia in the 1990s. The pests were first identified in Allentown, PA and have since spread rapidly throughout the mid-Atlantic region. Because they are not native to this continent, they have no natural predators or ecological checks on population here, allowing their numbers to skyrocket.
The question I ask is this: Why would the EPA approve the use of a known toxin that is directly one of the major causes of Colony Collapse Disorder? Honeybees don't just make honey, they pollinate more than 90 of the tastiest flowering crops we have. Honeybees pollinate apples, nuts, avocados, soybeans, asparagus, broccoli, celery, squash and cucumbers. And lots of the really sweet and tart stuff, too, including citrus fruit, peaches, kiwi, cherries, blueberries, cranberries, strawberries, cantaloupe and other melons. In fact, about one-third of the human diet comes from insect-pollinated plants, and the honeybee is responsible for 80 percent of that pollination, according to the U.S. Department of Agriculture.
So I guess the EPA is justified in killing more of our precious honey bees which are vital to our food chain in order to control brown marmorated stink bugs. Yes indeed, another bonehead move by the EPA!
Idaho Couple Takes Long-Brewing Clean Water Act Controversy To Supreme Court
A north Idaho couple's fight with the Environmental Protection Agency is attracting attention from some of the largest corporations in the country. The U.S. Supreme Court agreed this week to take up the property rights case this fall.
Michael and Chantell Sackett want to build a house on a half-acre lot they own at Priest Lake. And a few years back, they started to.
But then the EPA said the lot is on a wetland. The agency issued an order saying they had to stop building and restore the land.
The Sacketts disagreed. They contend their property isn't part of a wetland.
But the Sacketts say they couldn't challenge the EPA's claim. So, the case before the Supreme Court is not over whether the couple can build. It's over their ability to challenge the EPA's basis for telling them that they can't.
A battle over this very question has been brewing for more than a quarter century, says UC Davis law professor Richard Frank.
"Electric power plant companies, manufacturers, a decision in this case will have a sweeping effect to both so-called mom and pop developers like the Sacketts to Forture 500 companies," Frank said.
Frank says a ruling in the Sacketts' favor would likely result in less enforcement of environmental laws at the state and federal level.
Under the direction of EPA's Office of Enforcement and Compliance Assurance (OECA), Region 4 Superfund staff pursues enforcement and cost recovery activities on sites where response or remedial actions are planned or taken. EPA's cleanup enforcement program protects human health and the environment by getting those responsible for a hazardous waste site to either clean up or reimburse EPA for its cleanup. Compliance with the nation's environmental law is the ultimate objective, but enforcement is a vital part of encouraging governments, businesses and other companies to meet their environmental obligations. EPA's most often used and most powerful cleanup enforcement mechanism is the Comprehensive, Environmental Response, Compensation and Liability Act (CERCLA or Superfund). Superfund is a cleanup authority only and does not otherwise regulate a facility's operations.
Filed (ECF) Appellees Bayer Cropscience Inc.'s and Rhone-Poulnec Basic Chemicals Company corporate disclosure statement. Date of service: 03/09/2011. [7673671] (MWP)
03/09/2011
8
Attorney Sara J. Russell in 11-15383 substituted by Attorney Russell B. Hildreth in 11-15383 [7673675] (MT)
Filed (ECF) Appellees Bayer Cropscience Inc.'s and Rhone-Poulnec Basic Chemicals Company Motion to dismiss for lack of jurisdiction. Date of service: 03/09/2011. [7674036] (MWP)
Filed (ECF) Appellees Bayer Cropscience Inc.'s and Rhone-Poulnec Basic Chemicals Company Motion for sanctions. Date of service: 03/09/2011. [7674081] (MWP)
Filed (ECF) Appellees Bayer Cropscience Inc.'s and Rhone-Poulnec Basic Chemicals Company response opposing motion (,motion to withdraw as counsel). Date of service: 03/09/2011. [7674132] (MWP)
Filed (ECF) Appellees Bayer Cropscience Inc.'s and Rhone-Poulnec Basic Chemicals Company Corrected Motion to dismiss for lack of jurisdiction. Date of service: 03/09/2011. [7674164] (MWP)
the Superfund stopped getting funded in 1995. President Clinton unsuccessfully tried to reinstate the tax on polluters that originally filled the fund's coffers, and the fund actually ran out of money in 2003. Since then the program has relied on appropriations whose amount and consistency shift according to the prevailing congressional winds.
In 2009, the agency drafted a rule that addresses this in part -- they want mining companies to provide evidence that they'll be able to stay in business not just when they're making money off a mine, but years after the fact, when a messy, expensive cleanup -- like the one in Libby, Mont. -- might be needed.
This new rule was spurred by a Sierra Club lawsuit alleging that the 63 hardrock mining sites on the National Priorities List have estimated cleanup costs of $7.8 billion, and $2.4 billion of those costs were going be footed by taxpayers. Meanwhile, many more Western mining sites are being considered for Superfund listing, and the costs of cleaning up each site keep getting higher .
Notable opponents to the 2009 EPA rule include Alaska Senator Lisa Murkowski, a mining fan, and -- shocker -- the National Mining Association. (Read Murkowki's letter to the EPA [PDF])
Rule 44. Proving an Official Record
(a) Means of Proving.
(1) Domestic Record.
Each of the following evidences an official record — or an entry in it — that is otherwise admissible and is kept within the United States, any state, district, or commonwealth, or any territory subject to the administrative or judicial jurisdiction of the United States:
(A) an official publication of the record; or
(B) a copy attested by the officer with legal custody of the record — or by the officer's deputy — and accompanied by a certificate that the officer has custody. The certificate must be made under seal:
(i) by a judge of a court of record in the district or political subdivision where the record is kept; or
(ii) by any public officer with a seal of office and with official duties in the district or political subdivision where the record is kept.
(2) Foreign Record.
(A) In General. Each of the following evidences a foreign official record — or an entry in it — that is otherwise admissible:
(i) an official publication of the record; or
(ii) the record — or a copy — that is attested by an authorized person and is accompanied either by a final certification of genuineness or by a certification under a treaty or convention to which the United States and the country where the record is located are parties.
(B) Final Certification of Genuineness. A final certification must certify the genuineness of the signature and official position of the attester or of any foreign official whose certificate of genuineness relates to the attestation or is in a chain of certificates of genuineness relating to the attestation. A final certification may be made by a secretary of a United States embassy or legation; by a consul general, vice consul, or consular agent of the United States; or by a diplomatic or consular official of the foreign country assigned or accredited to the United States.
(C) Other Means of Proof. If all parties have had a reasonable opportunity to investigate a foreign record's authenticity and accuracy, the court may, for good cause, either:
(i) admit an attested copy without final certification; or
(ii) permit the record to be evidenced by an attested summary with or without a final certification.
(b) Lack of Record.
A written statement that a diligent search of designated records revealed no record or entry of a specified tenor is admissible as evidence that the records contain no such record or entry. For domestic records, the statement must be authenticated under Rule 44(a)(1). For foreign records, the statement must comply with (a)(2)(C)(ii).
(c) Other Proof.
A party may prove an official record — or an entry or lack of an entry in it — by any other method authorized by law.
8 See John Hutchens; T. W. Arman; et al v. United States District Court for the Eastern District of California (Sacramento), Respondent United States Environmental Protection Agency; Real Party in Interest, Appeal No. 90-71150; John F. Hutchens v. United States District Court for the Eastern District of California (Sacramento), Respondent, United States of America; et al; Real Parties in Interest, Appeal No. 90-70047.
APPEAL FROM A JUDGMENT OR ORDER OF A DISTRICT COURT
Rule 3. Appeal as of Right—When Taken
(a) Filing the Notice of Appeal.
(1) An appeal permitted by law as of right from a district court to a court of appeals may be taken only by filing a notice of appeal with the district clerk within the time allowed by Rule 4. At the time of filing, the appellant must furnish the clerk with enough copies of the notice to enable the clerk to comply with Rule 3(d).
(2) An appellant's failure to take any step other than the timely filing of a notice of appeal does not affect the validity of the appeal, but is ground only for the court of appeals to act as it considers appropriate, including dismissing the appeal.
(3) An appeal from a judgment by a magistrate judge in a civil case is taken in the same way as an appeal from any other district court judgment.
(4) An appeal by permission under 28 U.S.C. § 1292(b) or an appeal in a bankruptcy case may be taken only in the manner prescribed by Rules 5 and 6, respectively.
(b) Joint or Consolidated Appeals.
(1) When two or more parties are entitled to appeal from a district-court judgment or order, and their interests make joinder practicable, they may file a joint notice of appeal. They may then proceed on appeal as a single appellant.
(2) When the parties have filed separate timely notices of appeal, the appeals may be joined or consolidated by the court of appeals.
(c) Contents of the Notice of Appeal.
(1) The notice of appeal must:
(A) specify the party or parties taking the appeal by naming each one in the caption or body of the notice, but an attorney representing more than one party may describe those parties with such terms as “all plaintiffs,” “the defendants,” “the plaintiffs A, B, et al.,” or “all defendants except X”;
(B) designate the judgment, order, or part thereof being appealed; and
(C) name the court to which the appeal is taken.
(2) A pro se notice of appeal is considered filed on behalf of the signer and the signer's spouse and minor children (if they are parties), unless the notice clearly indicates otherwise.
(3) In a class action, whether or not the class has been certified, the notice of appeal is sufficient if it names one person qualified to bring the appeal as representative of the class.
(4) An appeal must not be dismissed for informality of form or title of the notice of appeal, or for failure to name a party whose intent to appeal is otherwise clear from the notice.
(5) Form 1 in the Appendix of Forms is a suggested form of a notice of appeal.
(d) Serving the Notice of Appeal.
(1) The district clerk must serve notice of the filing of a notice of appeal by mailing a copy to each party's counsel of record—excluding the appellant's—or, if a party is proceeding pro se, to the party's last known address. When a defendant in a criminal case appeals, the clerk must also serve a copy of the notice of appeal on the defendant, either by personal service or by mail addressed to the defendant. The clerk must promptly send a copy of the notice of appeal and of the docket entries—and any later docket entries—to the clerk of the court of appeals named in the notice. The district clerk must note, on each copy, the date when the notice of appeal was filed.
(2) If an inmate confined in an institution files a notice of appeal in the manner provided by Rule 4(c), the district clerk must also note the date when the clerk docketed the notice.
(3) The district clerk's failure to serve notice does not affect the validity of the appeal. The clerk must note on the docket the names of the parties to whom the clerk mails copies, with the date of mailing. Service is sufficient despite the death of a party or the party's counsel.
(e) Payment of Fees.
Upon filing a notice of appeal, the appellant must pay the district clerk all required fees. The district clerk receives the appellate docket fee on behalf of the court of appeals.
(A) In a civil case, except as provided in Rules 4(a)(1)(B), 4(a)(4), and 4(c), the notice of appeal required by Rule 3 must be filed with the district clerk within 30 days after the judgment or order appealed from is entered.
(B) When the United States or its officer or agency is a party, the notice of appeal may be filed by any party within 60 days after the judgment or order appealed from is entered.
(C) An appeal from an order granting or denying an application for a writ of error coram nobis is an appeal in a civil case for purposes of Rule 4(a).
(2) Filing Before Entry of Judgment.
A notice of appeal filed after the court announces a decision or order—but before the entry of the judgment or order—is treated as filed on the date of and after the entry.
(3) Multiple Appeals.
If one party timely files a notice of appeal, any other party may file a notice of appeal within 14 days after the date when the first notice was filed, or within the time otherwise prescribed by this Rule 4(a), whichever period ends later.
(4) Effect of a Motion on a Notice of Appeal.
(A) If a party timely files in the district court any of the following motions under the Federal Rules of Civil Procedure, the time to file an appeal runs for all parties from the entry of the order disposing of the last such remaining motion:
(i) for judgment under Rule 50(b);
(ii) to amend or make additional factual findings under Rule 52(b), whether or not granting the motion would alter the judgment;
(iii) for attorney's fees under Rule 54 if the district court extends the time to appeal under Rule 58;
(iv) to alter or amend the judgment under Rule 59;
(v) for a new trial under Rule 59; or
(vi) for relief under Rule 60 if the motion is filed no later than 28 days after the judgment is entered.
(B)
(i) If a party files a notice of appeal after the court announces or enters a judgment—but before it disposes of any motion listed in Rule 4(a)(4)(A)—the notice becomes effective to appeal a judgment or order, in whole or in part, when the order disposing of the last such remaining motion is entered.
(ii) A party intending to challenge an order disposing of any motion listed in Rule 4(a)(4)(A), or a judgment's alteration or amendment upon such a motion, must file a notice of appeal, or an amended notice of appeal—in compliance with Rule 3(c)—within the time prescribed by this Rule measured from the entry of the order disposing of the last such remaining motion.
(iii) No additional fee is required to file an amended notice.
(5) Motion for Extension of Time.
(A) The district court may extend the time to file a notice of appeal if:
(i) a party so moves no later than 30 days after the time prescribed by this Rule 4(a) expires; and
(ii) regardless of whether its motion is filed before or during the 30 days after the time prescribed by this Rule 4(a) expires, that party shows excusable neglect or good cause.
(B) A motion filed before the expiration of the time prescribed in Rule 4(a)(1) or (3) may be ex parte unless the court requires otherwise. If the motion is filed after the expiration of the prescribed time, notice must be given to the other parties in accordance with local rules.
(C) No extension under this Rule 4(a)(5) may exceed 30 days after the prescribed time or 14 days after the date when the order granting the motion is entered, whichever is later.
(6) Reopening the Time to File an Appeal.
The district court may reopen the time to file an appeal for a period of 14 days after the date when its order to reopen is entered, but only if all the following conditions are satisfied:
(A) the court finds that the moving party did not receive notice under Federal Rule of Civil Procedure 77(d) of the entry of the judgment or order sought to be appealed within 21 days after entry;
(B) the motion is filed within 180 days after the judgment or order is entered or within 14 days after the moving party receives notice under Federal Rule of Civil Procedure 77(d) of the entry, whichever is earlier; and
(C) the court finds that no party would be prejudiced.
(7) Entry Defined.
(A) A judgment or order is entered for purposes of this Rule 4(a):
(i) if Federal Rule of Civil Procedure 58(a) does not require a separate document, when the judgment or order is entered in the civil docket under Federal Rule of Civil Procedure 79(a); or
(ii) if Federal Rule of Civil Procedure 58(a) requires a separate document, when the judgment or order is entered in the civil docket under Federal Rule of Civil Procedure 79(a) and when the earlier of these events occurs:
the judgment or order is set forth on a separate document, or
150 days have run from entry of the judgment or order in the civil docket under Federal Rule of Civil Procedure 79(a).
(B) A failure to set forth a judgment or order on a separate document when required by Federal Rule of Civil Procedure 58(a) does not affect the validity of an appeal from that judgment or order.
(b) Appeal in a Criminal Case.
(1) Time for Filing a Notice of Appeal.
(A) In a criminal case, a defendant's notice of appeal must be filed in the district court within 14 days after the later of:
(i) the entry of either the judgment or the order being appealed; or
(ii) the filing of the government's notice of appeal.
(B) When the government is entitled to appeal, its notice of appeal must be filed in the district court within 30 days after the later of:
(i) the entry of the judgment or order being appealed; or
(ii) the filing of a notice of appeal by any defendant.
(2) Filing Before Entry of Judgment.
A notice of appeal filed after the court announces a decision, sentence, or order—but before the entry of the judgment or order—is treated as filed on the date of and after the entry.
(3) Effect of a Motion on a Notice of Appeal.
(A) If a defendant timely makes any of the following motions under the Federal Rules of Criminal Procedure, the notice of appeal from a judgment of conviction must be filed within 14 days after the entry of the order disposing of the last such remaining motion, or within 14 days after the entry of the judgment of conviction, whichever period ends later. This provision applies to a timely motion:
(i) for judgment of acquittal under Rule 29;
(ii) for a new trial under Rule 33, but if based on newly discovered evidence, only if the motion is made no later than 14 days after the entry of the judgment; or
(iii) for arrest of judgment under Rule 34.
(B) A notice of appeal filed after the court announces a decision, sentence, or order—but before it disposes of any of the motions referred to in Rule 4(b)(3)(A)—becomes effective upon the later of the following:
(i) the entry of the order disposing of the last such remaining motion; or
(ii) the entry of the judgment of conviction.
(C) A valid notice of appeal is effective—without amendment—to appeal from an order disposing of any of the motions referred to in Rule 4(b)(3)(A).
(4) Motion for Extension of Time.
Upon a finding of excusable neglect or good cause, the district court may—before or after the time has expired, with or without motion and notice—extend the time to file a notice of appeal for a period not to exceed 30 days from the expiration of the time otherwise prescribed by this Rule 4(b).
(5) Jurisdiction.
The filing of a notice of appeal under this Rule 4(b) does not divest a district court of jurisdiction to correct a sentence under Federal Rule of Criminal Procedure 35(a), nor does the filing of a motion under 35(a) affect the validity of a notice of appeal filed before entry of the order disposing of the motion. The filing of a motion under Federal Rule of Criminal Procedure 35(a) does not suspend the time for filing a notice of appeal from a judgment of conviction.
(6) Entry Defined.
A judgment or order is entered for purposes of this Rule 4(b) when it is entered on the criminal docket.
(c) Appeal by an Inmate Confined in an Institution.
(1) If an inmate confined in an institution files a notice of appeal in either a civil or a criminal case, the notice is timely if it is deposited in the institution's internal mail system on or before the last day for filing. If an institution has a system designed for legal mail, the inmate must use that system to receive the benefit of this rule. Timely filing may be shown by a declaration in compliance with 28 U.S.C. § 1746 or by a notarized statement, either of which must set forth the date of deposit and state that first-class postage has been prepaid.
(2) If an inmate files the first notice of appeal in a civil case under this Rule 4(c), the 14-day period provided in Rule 4(a)(3) for another party to file a notice of appeal runs from the date when the district court dockets the first notice.
(3) When a defendant in a criminal case files a notice of appeal under this Rule 4(c), the 30-day period for the government to file its notice of appeal runs from the entry of the judgment or order appealed from or from the district court's docketing of the defendant's notice of appeal, whichever is later.
(d) Mistaken Filing in the Court of Appeals.
If a notice of appeal in either a civil or a criminal case is mistakenly filed in the court of appeals, the clerk of that court must note on the notice the date when it was received and send it to the district clerk. The notice is then considered filed in the district court on the date so noted.
(1) To request permission to appeal when an appeal is within the court of appeals' discretion, a party must file a petition for permission to appeal. The petition must be filed with the circuit clerk with proof of service on all other parties to the district-court action.
(2) The petition must be filed within the time specified by the statute or rule authorizing the appeal or, if no such time is specified, within the time provided by Rule 4(a) for filing a notice of appeal.
(3) If a party cannot petition for appeal unless the district court first enters an order granting permission to do so or stating that the necessary conditions are met, the district court may amend its order, either on its own or in response to a party's motion, to include the required permission or statement. In that event, the time to petition runs from entry of the amended order.
(b) Contents of the Petition; Answer or Cross-Petition; Oral Argument.
(1) The petition must include the following:
(A) the facts necessary to understand the question presented;
(B) the question itself;
(C) the relief sought;
(D) the reasons why the appeal should be allowed and is authorized by a statute or rule; and
(E) an attached copy of:
(i) the order, decree, or judgment complained of and any related opinion or memorandum, and
(ii) any order stating the district court's permission to appeal or finding that the necessary conditions are met.
(2) A party may file an answer in opposition or a cross-petition within 7 days after the petition is served.
(3) The petition and answer will be submitted without oral argument unless the court of appeals orders otherwise.
(c) Form of Papers; Number of Copies.
All papers must conform to Rule 32(c)(2). Except by the court's permission, a paper must not exceed 20 pages, exclusive of the disclosure statement, the proof of service, and the accompanying documents required by Rule 5(b)(1)(E). An original and 3 copies must be filed unless the court requires a different number by local rule or by order in a particular case.
(d) Grant of Permission; Fees; Cost Bond; Filing the Record.
(1) Within 10 days after the entry of the order granting permission to appeal, the appellant must:
(A) pay the district clerk all required fees; and
(B) file a cost bond if required under Rule 7.
(2) A notice of appeal need not be filed. The date when the order granting permission to appeal is entered serves as the date of the notice of appeal for calculating time under these rules.
(3) The district clerk must notify the circuit clerk once the petitioner has paid the fees. Upon receiving this notice, the circuit clerk must enter the appeal on the docket. The record must be forwarded and filed in accordance with Rules 11 and 12(c).
Rule 6. Appeal in a Bankruptcy Case from a Final Judgment, Order, or Decree of a District Court or Bankruptcy Appellate Panel
(a) Appeal From a Judgment, Order, or Decree of a District Court Exercising Original Jurisdiction in a Bankruptcy Case.
An appeal to a court of appeals from a final judgment, order, or decree of a district court exercising jurisdiction under 28 U.S.C. § 1334 is taken as any other civil appeal under these rules.
(b) Appeal From a Judgment, Order, or Decree of a District Court or Bankruptcy Appellate Panel Exercising Appellate Jurisdiction in a Bankruptcy Case.
(1) Applicability of Other Rules.
These rules apply to an appeal to a court of appeals under 28 U.S.C. § 158(d) from a final judgment, order, or decree of a district court or bankruptcy appellate panel exercising appellate jurisdiction under 28 U.S.C. § 158(a) or (b). But there are 3 exceptions:
(A) Rules 4(a)(4), 4(b), 9, 10, 11, 12(b), 13–20, 22–23, and 24(b) do not apply;
(B) the reference in Rule 3(c) to “Form 1 in the Appendix of Forms” must be read as a reference to Form 5; and
(C) when the appeal is from a bankruptcy appellate panel, the term “district court,” as used in any applicable rule, means “appellate panel.”
(2) Additional Rules.
In addition to the rules made applicable by Rule 6(b)(1), the following rules apply:
(A) Motion for rehearing.
(i) If a timely motion for rehearing under Bankruptcy Rule 8015 is filed, the time to appeal for all parties runs from the entry of the order disposing of the motion. A notice of appeal filed after the district court or bankruptcy appellate panel announces or enters a judgment, order, or decree—but before disposition of the motion for rehearing—becomes effective when the order disposing of the motion for rehearing is entered.
(ii) Appellate review of the order disposing of the motion requires the party, in compliance with Rules 3(c) and 6(b)(1)(B), to amend a previously filed notice of appeal. A party intending to challenge an altered or amended judgment, order, or decree must file a notice of appeal or amended notice of appeal within the time prescribed by Rule 4—excluding Rules 4(a)(4) and 4(b)— measured from the entry of the order disposing of the motion.
(iii) No additional fee is required to file an amended notice.
(B) The record on appeal.
(i) Within 14 days after filing the notice of appeal, the appellant must file with the clerk possessing the record assembled in accordance with Bankruptcy Rule 8006—and serve on the appellee—a statement of the issues to be presented on appeal and a designation of the record to be certified and sent to the circuit clerk.
(ii) An appellee who believes that other parts of the record are necessary must, within 14 days after being served with the appellant's designation, file with the clerk and serve on the appellant a designation of additional parts to be included.
(iii) The record on appeal consists of:
the redesignated record as provided above;
the proceedings in the district court or bankruptcy appellate panel; and
a certified copy of the docket entries prepared by the clerk under Rule 3(d).
(C) Forwarding the record.
(i) When the record is complete, the district clerk or bankruptcy appellate panel clerk must number the documents constituting the record and send them promptly to the circuit clerk together with a list of the documents correspondingly numbered and reasonably identified. Unless directed to do so by a party or the circuit clerk, the clerk will not send to the court of appeals documents of unusual bulk or weight, physical exhibits other than documents, or other parts of the record designated for omission by local rule of the court of appeals. If the exhibits are unusually bulky or heavy, a party must arrange with the clerks in advance for their transportation and receipt.
(ii) All parties must do whatever else is necessary to enable the clerk to assemble and forward the record. The court of appeals may provide by rule or order that a certified copy of the docket entries be sent in place of the redesignated record, but any party may request at any time during the pendency of the appeal that the redesignated record be sent.
(D) Filing the record.
Upon receiving the recordor a certified copy of the docket entries sent in place of the redesignated recordthe circuit clerk must file it and immediately notify all parties of the filing date.
In a civil case, the district court may require an appellant to file a bond or provide other security in any form and amount necessary to ensure payment of costs on appeal. Rule 8(b) applies to a surety on a bond given under this rule.
A party must ordinarily move first in the district court for the following relief:
(A) a stay of the judgment or order of a district court pending appeal;
(B) approval of a supersedeas bond; or
(C) an order suspending, modifying, restoring, or granting an injunction while an appeal is pending.
(2) Motion in the Court of Appeals; Conditions on Relief.
A motion for the relief mentioned in Rule 8(a)(1) may be made to the court of appeals or to one of its judges.
(A) The motion must:
(i) show that moving first in the district court would be impracticable; or
(ii) state that, a motion having been made, the district court denied the motion or failed to afford the relief requested and state any reasons given by the district court for its action.
(B) The motion must also include:
(i) the reasons for granting the relief requested and the facts relied on;
(ii) originals or copies of affidavits or other sworn statements supporting facts subject to dispute; and
(iii) relevant parts of the record.
(C) The moving party must give reasonable notice of the motion to all parties.
(D) A motion under this Rule 8(a)(2) must be filed with the circuit clerk and normally will be considered by a panel of the court. But in an exceptional case in which time requirements make that procedure impracticable, the motion may be made to and considered by a single judge.
(E) The court may condition relief on a party's filing a bond or other appropriate security in the district court.
(b) Proceeding Against a Surety.
If a party gives security in the form of a bond or stipulation or other undertaking with one or more sureties, each surety submits to the jurisdiction of the district court and irrevocably appoints the district clerk as the surety's agent on whom any papers affecting the surety's liability on the bond or undertaking may be served. On motion, a surety's liability may be enforced in the district court without the necessity of an independent action. The motion and any notice that the district court prescribes may be served on the district clerk, who must promptly mail a copy to each surety whose address is known.
(c) Stay in a Criminal Case.
Rule 38 of the Federal Rules of Criminal Procedure governs a stay in a criminal case.
(1) The district court must state in writing, or orally on the record, the reasons for an order regarding the release or detention of a defendant in a criminal case. A party appealing from the order must file with the court of appeals a copy of the district court's order and the court's statement of reasons as soon as practicable after filing the notice of appeal. An appellant who questions the factual basis for the district court's order must file a transcript of the release proceedings or an explanation of why a transcript was not obtained.
(2) After reasonable notice to the appellee, the court of appeals must promptly determine the appeal on the basis of the papers, affidavits, and parts of the record that the parties present or the court requires. Unless the court so orders, briefs need not be filed.
(3) The court of appeals or one of its judges may order the defendant's release pending the disposition of the appeal.
(b) Release After Judgment of Conviction.
A party entitled to do so may obtain review of a district-court order regarding release after a judgment of conviction by filing a notice of appeal from that order in the district court, or by filing a motion in the court of appeals if the party has already filed a notice of appeal from the judgment of conviction. Both the order and the review are subject to Rule 9(a). The papers filed by the party seeking review must include a copy of the judgment of conviction.
(c) Criteria for Release.
The court must make its decision regarding release in accordance with the applicable provisions of 18 U.S.C. §§ 3142, 3143, and 3145(c).
The following items constitute the record on appeal:
(1) the original papers and exhibits filed in the district court;
(2) the transcript of proceedings, if any; and
(3) a certified copy of the docket entries prepared by the district clerk.
(b) The Transcript of Proceedings.
(1) Appellant's Duty to Order.
Within 14 days after filing the notice of appeal or entry of an order disposing of the last timely remaining motion of a type specified in Rule 4(a)(4)(A), whichever is later, the appellant must do either of the following:
(A) order from the reporter a transcript of such parts of the proceedings not already on file as the appellant considers necessary, subject to a local rule of the court of appeals and with the following qualifications:
(i) the order must be in writing;
(ii) if the cost of the transcript is to be paid by the United States under the Criminal Justice Act, the order must so state; and
(iii) the appellant must, within the same period, file a copy of the order with the district clerk; or
(B) file a certificate stating that no transcript will be ordered.
(2) Unsupported Finding or Conclusion.
If the appellant intends to urge on appeal that a finding or conclusion is unsupported by the evidence or is contrary to the evidence, the appellant must include in the record a transcript of all evidence relevant to that finding or conclusion.
(3) Partial Transcript.
Unless the entire transcript is ordered:
(A) the appellant mustwithin the 14 days provided in Rule 10(b)(1)file a statement of the issues that the appellant intends to present on the appeal and must serve on the appellee a copy of both the order or certificate and the statement;
(B) if the appellee considers it necessary to have a transcript of other parts of the proceedings, the appellee must, within 10 days after the service of the order or certificate and the statement of the issues, file and serve on the appellant a designation of additional parts to be ordered; and
(C) unless within 14 days after service of that designation the appellant has ordered all such parts, and has so notified the appellee, the appellee may within the following 14 days either order the parts or move in the district court for an order requiring the appellant to do so.
(4) Payment.
At the time of ordering, a party must make satisfactory arrangements with the reporter for paying the cost of the transcript.
(c) Statement of the Evidence When the Proceedings Were Not Recorded or When a Transcript Is Unavailable.
If the transcript of a hearing or trial is unavailable, the appellant may prepare a statement of the evidence or proceedings from the best available means, including the appellant's recollection. The statement must be served on the appellee, who may serve objections or proposed amendments within 14 days after being served. The statement and any objections or proposed amendments must then be submitted to the district court for settlement and approval. As settled and approved, the statement must be included by the district clerk in the record on appeal.
(d) Agreed Statement as the Record on Appeal.
In place of the record on appeal as defined in Rule 10(a), the parties may prepare, sign, and submit to the district court a statement of the case showing how the issues presented by the appeal arose and were decided in the district court. The statement must set forth only those facts averred and proved or sought to be proved that are essential to the courts resolution of the issues. If the statement is truthful, ittogether with any additions that the district court may consider necessary to a full presentation of the issues on appealmust be approved by the district court and must then be certified to the court of appeals as the record on appeal. The district clerk must then send it to the circuit clerk within the time provided by Rule 11. A copy of the agreed statement may be filed in place of the appendix required by Rule 30.
(e) Correction or Modification of the Record.
(1) If any difference arises about whether the record truly discloses what occurred in the district court, the difference must be submitted to and settled by that court and the record conformed accordingly.
(2) If anything material to either party is omitted from or misstated in the record by error or accident, the omission or misstatement may be corrected and a supplemental record may be certified and forwarded:
(A) on stipulation of the parties;
(B) by the district court before or after the record has been forwarded; or
(C) by the court of appeals.
(3) All other questions as to the form and content of the record must be presented to the court of appeals.
An appellant filing a notice of appeal must comply with Rule 10(b) and must do whatever else is necessary to enable the clerk to assemble and forward the record. If there are multiple appeals from a judgment or order, the clerk must forward a single record.
(b) Duties of Reporter and District Clerk.
(1) Reporter's Duty to Prepare and File a Transcript.
The reporter must prepare and file a transcript as follows:
(A) Upon receiving an order for a transcript, the reporter must enter at the foot of the order the date of its receipt and the expected completion date and send a copy, so endorsed, to the circuit clerk.
(B) If the transcript cannot be completed within 30 days of the reporters receipt of the order, the reporter may request the circuit clerk to grant additional time to complete it. The clerk must note on the docket the action taken and notify the parties.
(C) When a transcript is complete, the reporter must file it with the district clerk and notify the circuit clerk of the filing.
(D) If the reporter fails to file the transcript on time, the circuit clerk must notify the district judge and do whatever else the court of appeals directs.
(2) District Clerk's Duty to Forward.
When the record is complete, the district clerk must number the documents constituting the record and send them promptly to the circuit clerk together with a list of the documents correspondingly numbered and reasonably identified. Unless directed to do so by a party or the circuit clerk, the district clerk will not send to the court of appeals documents of unusual bulk or weight, physical exhibits other than documents, or other parts of the record designated for omission by local rule of the court of appeals. If the exhibits are unusually bulky or heavy, a party must arrange with the clerks in advance for their transportation and receipt.
(c) Retaining the Record Temporarily in the District Court for Use in Preparing the Appeal.
The parties may stipulate, or the district court on motion may order, that the district clerk retain the record temporarily for the parties to use in preparing the papers on appeal. In that event the district clerk must certify to the circuit clerk that the record on appeal is complete. Upon receipt of the appellee's brief, or earlier if the court orders or the parties agree, the appellant must request the district clerk to forward the record.
(d) [Abrogated.]
(e) Retaining the Record by Court Order.
(1) The court of appeals may, by order or local rule, provide that a certified copy of the docket entries be forwarded instead of the entire record. But a party may at any time during the appeal request that designated parts of the record be forwarded.
(2) The district court may order the record or some part of it retained if the court needs it while the appeal is pending, subject, however, to call by the court of appeals.
(3) If part or all of the record is ordered retained, the district clerk must send to the court of appeals a copy of the order and the docket entries together with the parts of the original record allowed by the district court and copies of any parts of the record designated by the parties.
(f) Retaining Parts of the Record in the District Court by Stipulation of the Parties.
The parties may agree by written stipulation filed in the district court that designated parts of the record be retained in the district court subject to call by the court of appeals or request by a party. The parts of the record so designated remain a part of the record on appeal.
(g) Record for a Preliminary Motion in the Court of Appeals.
If, before the record is forwarded, a party makes any of the following motions in the court of appeals:
for dismissal;
for release;
for a stay pending appeal;
for additional security on the bond on appeal or on a supersedeas bond; or
for any other intermediate order—
the district clerk must send the court of appeals any parts of the record designated by any party.
Rule 12. Docketing the Appeal; Filing a Representation Statement; Filing the Record
(a) Docketing the Appeal.
Upon receiving the copy of the notice of appeal and the docket entries from the district clerk under Rule 3(d), the circuit clerk must docket the appeal under the title of the district-court action and must identify the appellant, adding the appellant's name if necessary.
(b) Filing a Representation Statement.
Unless the court of appeals designates another time, the attorney who filed the notice of appeal must, within 14 days after filing the notice, file a statement with the circuit clerk naming the parties that the attorney represents on appeal.
(c) Filing the Record, Partial Record, or Certificate.
Upon receiving the record, partial record, or district clerk's certificate as provided in Rule 11, the circuit clerk must file it and immediately notify all parties of the filing date.
Rule 12.1 Remand After an Indicative Ruling by the District Court on a Motion for Relief That Is Barred by a Pending Appeal
(a) Notice to the Court of Appeals.
If a timely motion is made in the district court for relief that it lacks authority to grant because of an appeal that has been docketed and is pending, the movant must promptly notify the circuit clerk if the district court states either that it would grant the motion or that the motion raises a substantial issue.
(b) Remand After an Indicative Ruling.
If the district court states that it would grant the motion or that the motion raises a substantial issue, the court of appeals may remand for further proceedings but retains jurisdiction unless it expressly dismisses the appeal. If the court of appeals remands but retains jurisdiction, the parties must promptly notify the circuit clerk when the district court has decided the motion on remand.
Rule 11. Signing Pleadings, Motions, and Other Papers; Representations to the Court; Sanctions
(a) Signature.
Every pleading, written motion, and other paper must be signed by at least one attorney of record in the attorney's name — or by a party personally if the party is unrepresented. The paper must state the signer's address, e-mail address, and telephone number. Unless a rule or statute specifically states otherwise, a pleading need not be verified or accompanied by an affidavit. The court must strike an unsigned paper unless the omission is promptly corrected after being called to the attorney's or party's attention.
(b) Representations to the Court.
By presenting to the court a pleading, written motion, or other paper — whether by signing, filing, submitting, or later advocating it — an attorney or unrepresented party certifies that to the best of the person's knowledge, information, and belief, formed after an inquiry reasonable under the circumstances:
(1) it is not being presented for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of litigation;
(2) the claims, defenses, and other legal contentions are warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law or for establishing new law;
(3) the factual contentions have evidentiary support or, if specifically so identified, will likely have evidentiary support after a reasonable opportunity for further investigation or discovery; and
(4) the denials of factual contentions are warranted on the evidence or, if specifically so identified, are reasonably based on belief or a lack of information.
(c) Sanctions.
(1) In General.
If, after notice and a reasonable opportunity to respond, the court determines that Rule 11(b) has been violated, the court may impose an appropriate sanction on any attorney, law firm, or party that violated the rule or is responsible for the violation. Absent exceptional circumstances, a law firm must be held jointly responsible for a violation committed by its partner, associate, or employee.
(2) Motion for Sanctions.
A motion for sanctions must be made separately from any other motion and must describe the specific conduct that allegedly violates Rule 11(b). The motion must be served under Rule 5 , but it must not be filed or be presented to the court if the challenged paper, claim, defense, contention, or denial is withdrawn or appropriately corrected within 21 days after service or within another time the court sets. If warranted, the court may award to the prevailing party the reasonable expenses, including attorney's fees, incurred for the motion.
(3) On the Court's Initiative.
On its own, the court may order an attorney, law firm, or party to show cause why conduct specifically described in the order has not violated Rule 11(b).
(4) Nature of a Sanction.
A sanction imposed under this rule must be limited to what suffices to deter repetition of the conduct or comparable conduct by others similarly situated. The sanction may include nonmonetary directives; an order to pay a penalty into court; or, if imposed on motion and warranted for effective deterrence, an order directing payment to the movant of part or all of the reasonable attorney's fees and other expenses directly resulting from the violation.
(5) Limitations on Monetary Sanctions.
The court must not impose a monetary sanction:
(A) against a represented party for violating Rule 11(b)(2); or
(B) on its own, unless it issued the show-cause order under Rule 11(c)(3) before voluntary dismissal or settlement of the claims made by or against the party that is, or whose attorneys are, to be sanctioned.
(6) Requirements for an Order.
An order imposing a sanction must describe the sanctioned conduct and explain the basis for the sanction.
(d) Inapplicability to Discovery.
This rule does not apply to disclosures and discovery requests, responses, objections, and motions under Rules 26 through 37 .
Rule 45. Subpoena
(a) In General.
(1) Form and Contents.
(A) Requirements — In General . Every subpoena must:
(i) state the court from which it issued;
(ii) state the title of the action, the court in which it is pending, and its civil-action number;
(iii) command each person to whom it is directed to do the following at a specified time and place: attend and testify; produce designated documents, electronically stored information, or tangible things in that person's possession, custody, or control; or permit the inspection of premises; and
(iv) set out the text of Rule 45(c) and (d).
(B) Command to Attend a Deposition — Notice of the Recording Method . A subpoena commanding attendance at a deposition must state the method for recording the testimony.
(C) Combining or Separating a Command to Produce or to Permit Inspection; Specifying the Form for Electronically Stored Information . A command to produce documents, electronically stored information, or tangible things or to permit the inspection of premises may be included in a subpoena commanding attendance at a deposition, hearing, or trial, or may be set out in a separate subpoena. A subpoena may specify the form or forms in which electronically stored information is to be produced.
(D) Command to Produce; Included Obligations . A command in a subpoena to produce documents, electronically stored information, or tangible things requires the responding party to permit inspection, copying, testing, or sampling of the materials.
(2) Issued from Which Court.
A subpoena must issue as follows:
(A) for attendance at a hearing or trial, from the court for the district where the hearing or trial is to be held;
(B) for attendance at a deposition, from the court for the district where the deposition is to be taken; and
(C) for production or inspection, if separate from a subpoena commanding a person's attendance, from the court for the district where the production or inspection is to be made.
(3) Issued by Whom.
The clerk must issue a subpoena, signed but otherwise in blank, to a party who requests it. That party must complete it before service. An attorney also may issue and sign a subpoena as an officer of:
(A) a court in which the attorney is authorized to practice; or
(B) a court for a district where a deposition is to be taken or production is to be made, if the attorney is authorized to practice in the court where the action is pending.
(b) Service.
(1) By Whom; Tendering Fees; Serving a Copy of Certain Subpoenas.
Any person who is at least 18 years old and not a party may serve a subpoena. Serving a subpoena requires delivering a copy to the named person and, if the subpoena requires that person's attendance, tendering the fees for 1 day's attendance and the mileage allowed by law. Fees and mileage need not be tendered when the subpoena issues on behalf of the United States or any of its officers or agencies. If the subpoena commands the production of documents, electronically stored information, or tangible things or the inspection of premises before trial, then before it is served, a notice must be served on each party.
(2) Service in the United States.
Subject to Rule 45(c)(3)(A)(ii), a subpoena may be served at any place:
(A) within the district of the issuing court;
(B) outside that district but within 100 miles of the place specified for the deposition, hearing, trial, production, or inspection;
(C) within the state of the issuing court if a state statute or court rule allows service at that place of a subpoena issued by a state court of general jurisdiction sitting in the place specified for the deposition, hearing, trial, production, or inspection; or
(D) that the court authorizes on motion and for good cause, if a federal statute so provides.
(3) Service in a Foreign Country.
28 U.S.C. § 1783 governs issuing and serving a subpoena directed to a United States national or resident who is in a foreign country.
(4) Proof of Service.
Proving service, when necessary, requires filing with the issuing court a statement showing the date and manner of service and the names of the persons served. The statement must be certified by the server.
(c) Protecting a Person Subject to a Subpoena.
(1) Avoiding Undue Burden or Expense; Sanctions.
A party or attorney responsible for issuing and serving a subpoena must take reasonable steps to avoid imposing undue burden or expense on a person subject to the subpoena. The issuing court must enforce this duty and impose an appropriate sanction — which may include lost earnings and reasonable attorney's fees — on a party or attorney who fails to comply.
(2) Command to Produce Materials or Permit Inspection.
(A) Appearance Not Required . A person commanded to produce documents, electronically stored information, or tangible things, or to permit the inspection of premises, need not appear in person at the place of production or inspection unless also commanded to appear for a deposition, hearing, or trial.
(B) Objections . A person commanded to produce documents or tangible things or to permit inspection may serve on the party or attorney designated in the subpoena a written objection to inspecting, copying, testing or sampling any or all of the materials or to inspecting the premises — or to producing electronically stored information in the form or forms requested. The objection must be served before the earlier of the time specified for compliance or 14 days after the subpoena is served. If an objection is made, the following rules apply:
(i) At any time, on notice to the commanded person, the serving party may move the issuing court for an order compelling production or inspection.
(ii) These acts may be required only as directed in the order, and the order must protect a person who is neither a party nor a party's officer from significant expense resulting from compliance.
(3) Quashing or Modifying a Subpoena.
(A) When Required. On timely motion, the issuing court must quash or modify a subpoena that:
(i) fails to allow a reasonable time to comply;
(ii) requires a person who is neither a party nor a party's officer to travel more than 100 miles from where that person resides, is employed, or regularly transacts business in person — except that, subject to Rule 45(c)(3)(B)(iii), the person may be commanded to attend a trial by traveling from any such place within the state where the trial is held;
(iii) requires disclosure of privileged or other protected matter, if no exception or waiver applies; or
(iv) subjects a person to undue burden.
(B) When Permitted. To protect a person subject to or affected by a subpoena, the issuing court may, on motion, quash or modify the subpoena if it requires:
(i) disclosing a trade secret or other confidential research, development, or commercial information;
(ii) disclosing an unretained expert's opinion or information that does not describe specific occurrences in dispute and results from the expert's study that was not requested by a party; or
(iii) a person who is neither a party nor a party's officer to incur substantial expense to travel more than 100 miles to attend trial.
(C) Specifying Conditions as an Alternative. In the circumstances described in Rule 45(c)(3)(B), the court may, instead of quashing or modifying a subpoena, order appearance or production under specified conditions if the serving party:
(i) shows a substantial need for the testimony or material that cannot be otherwise met without undue hardship; and
(ii) ensures that the subpoenaed person will be reasonably compensated.
(d) Duties in Responding to Subpoena.
(1) Producing Documents or Electronically Stored Information.
These procedures apply to producing documents or electronically stored information:
(A) Documents . A person responding to a subpoena to produce documents must produce them as they are kept in the ordinary course of business or must organize and label them to correspond to the categories in the demand.
(B) Form for Producing Electronically Stored Information Not Specified . If a subpoena does not specify a form for producing electronically stored information, the person responding must produce it in a form or forms in which it is ordinarily maintained or in a reasonably usable form or forms.
(C) Electronically Stored Information Produced in Only One Form . The person responding need not produce the same electronically stored information in more than one form.
(D) Inaccessible Electronically Stored Information . The person responding need not provide discovery of electronically stored information from sources that the person identifies as not reasonably accessible because of undue burden or cost. On motion to compel discovery or for a protective order, the person responding must show that the information is not reasonably accessible because of undue burden or cost. If that showing is made, the court may nonetheless order discovery from such sources if the requesting party shows good cause, considering the limitations of Rule 26(b) (2)(C). The court may specify conditions for the discovery.
(2) Claiming Privilege or Protection.
(A) Information Withheld . A person withholding subpoenaed information under a claim that it is privileged or subject to protection as trial-preparation material must:
(i) expressly make the claim; and
(ii) describe the nature of the withheld documents, communications, or tangible things in a manner that, without revealing information itself privileged or protected, will enable the parties to assess the claim.
(B) Information Produced . If information produced in response to a subpoena is subject to a claim of privilege or of protection as trial-preparation material, the person making the claim may notify any party that received the information of the claim and the basis for it. After being notified, a party must promptly return, sequester, or destroy the specified information and any copies it has; must not use or disclose the information until the claim is resolved; must take reasonable steps to retrieve the information if the party disclosed it before being notified; and may promptly present the information to the court under seal for a determination of the claim. The person who produced the information must preserve the information until the claim is resolved.
(e) Contempt.
The issuing court may hold in contempt a person who, having been served, fails without adequate excuse to obey the subpoena. A nonparty's failure to obey must be excused if the subpoena purports to require the nonparty to attend or produce at a place outside the limits of Rule 45(c)(3)(A)(ii).
Rule 63. Judge's Inability to Proceed
If a judge conducting a hearing or trial is unable to proceed, any other judge may proceed upon certifying familiarity with the record and determining that the case may be completed without prejudice to the parties. In a hearing or a nonjury trial, the successor judge must, at a party's request, recall any witness whose testimony is material and disputed and who is available to testify again without undue burden. The successor judge may also recall any other witness.
Rule 77. Conducting Business; Clerk's Authority; Notice of an Order or Judgment
(a) When Court Is Open.
Every district court is considered always open for filing any paper, issuing and returning process, making a motion, or entering an order.
(b) Place for Trial and Other Proceedings.
Every trial on the merits must be conducted in open court and, so far as convenient, in a regular courtroom. Any other act or proceeding may be done or conducted by a judge in chambers, without the attendance of the clerk or other court official, and anywhere inside or outside the district. But no hearing — other than one ex parte — may be conducted outside the district unless all the affected parties consent.
(c) Clerk's Office Hours; Clerk's Orders.
(1) Hours.
The clerk's office — with a clerk or deputy on duty — must be open during business hours every day except Saturdays, Sundays, and legal holidays. But a court may, by local rule or order, require that the office be open for specified hours on Saturday or a particular legal holiday other than one listed in Rule 6(a) (4)(A).
(2) Orders.
Subject to the court's power to suspend, alter, or rescind the clerk's action for good cause, the clerk may:
(A) issue process;
(B) enter a default;
(C) enter a default judgment under Rule 55(b) (1); and
(D) act on any other matter that does not require the court's action.
(d) Serving Notice of an Order or Judgment.
(1) Service.
Immediately after entering an order or judgment, the clerk must serve notice of the entry, as provided in Rule 5(b) , on each party who is not in default for failing to appear. The clerk must record the service on the docket. A party also may serve notice of the entry as provided in Rule 5(b).
(2) Time to Appeal Not Affected by Lack of Notice.
Lack of notice of the entry does not affect the time for appeal or relieve — or authorize the court to relieve — a party for failing to appeal within the time allowed, except as allowed by Federal Rule of Appellate Procedure (4)(a).
Rule D. - Possessory, Petitory, and Partition Actions
In all actions for possession, partition, and to try title maintainable according to the course of the admiralty practice with respect to a vessel, in all actions so maintainable with respect to the possession of cargo or other maritime property, and in all actions by one or more part owners against the others to obtain security for the return of the vessel from any voyage undertaken without their consent, or by one or more part owners against the others to obtain possession of the vessel for any voyage on giving security for its safe return, the process shall be by a warrant of arrest of the vessel, cargo, or other property, and by notice in the manner provided by Rule B(2) to the adverse party or parties.
Rule F. - Limitation of Liability
(1) Time for Filing Complaint; Security.
Not later than six months after receipt of a claim in writing, any vessel owner may file a complaint in the appropriate district court, as provided in subdivision (9) of this rule, for limitation of liability pursuant to statute. The owner (a) shall deposit with the court, for the benefit of claimants, a sum equal to the amount or value of the owner's interest in the vessel and pending freight, or approved security therefor, and in addition such sums, or approved security therefor, as the court may from time to time fix as necessary to carry out the provisions of the statutes as amended; or (b) at the owner's option shall transfer to a trustee to be appointed by the court, for the benefit of claimants, the owner's interest in the vessel and pending freight, together with such sums, or approved security therefor, as the court may from time to time fix as necessary to carry out the provisions of the statutes as amended. The plaintiff shall also give security for costs and, if the plaintiff elects to give security, for interest at the rate of 6 percent per annum from the date of the security.
(2) Complaint.
The complaint shall set forth the facts on the basis of which the right to limit liability is asserted and all facts necessary to enable the court to determine the amount to which the owner's liability shall be limited. The complaint may demand exoneration from as well as limitation of liability. It shall state the voyage if any, on which the demands sought to be limited arose, with the date and place of its termination; the amount of all demands including all unsatisfied liens or claims of lien, in contract or in tort or otherwise, arising on that voyage, so far as known to the plaintiff, and what actions and proceedings, if any, are pending thereon; whether the vessel was damaged, lost, or abandoned, and, if so, when and where; the value of the vessel at the close of the voyage or, in case of wreck, the value of her wreckage, strippings, or proceeds, if any, and where and in whose possession they are; and the amount of any pending freight recovered or recoverable. If the plaintiff elects to transfer the plaintiff's interest in the vessel to a trustee, the complaint must further show any prior paramount liens thereon, and what voyages or trips, if any, she has made since the voyage or trip on which the claims sought to be limited arose, and any existing liens arising upon any such subsequent voyage or trip, with the amounts and causes thereof, and the names and addresses of the lienors, so far as known; and whether the vessel sustained any injury upon or by reason of such subsequent voyage or trip.
(3) Claims Against Owner; Injunction.
Upon compliance by the owner with the requirements of subdivision (1) of this rule all claims and proceedings against the owner or the owner's property with respect to the matter in question shall cease. On application of the plaintiff the court shall enjoin the further prosecution of any action or proceeding against the plaintiff or the plaintiff's property with respect to any claim subject to limitation in the action.
(4) Notice to Claimants.
Upon the owner's compliance with subdivision (1) of this rule the court shall issue a notice to all persons asserting claims with respect to which the complaint seeks limitation, admonishing them to file their respective claims with the clerk of the court and to serve on the attorneys for the plaintiff a copy thereof on or before a date to be named in the notice. The date so fixed shall not be less than 30 days after issuance of the notice. For cause shown, the court may enlarge the time within which claims may be filed. The notice shall be published in such newspaper or newspapers as the court may direct once a week for four successive weeks prior to the date fixed for the filing of claims. The plaintiff not later than the day of second publication shall also mail a copy of the notice to every person known to have made any claim against the vessel or the plaintiff arising out of the voyage or trip on which the claims sought to be limited arose. In cases involving death a copy of such notice shall be mailed to the decedent at the decedent's last known address, and also to any person who shall be known to have made any claim on account of such death.
(5) Claims and Answer.
Claims shall be filed and served on or before the date specified in the notice provided for in subdivision (4) of this rule. Each claim shall specify the facts upon which the claimant relies in support of the claim, the items thereof, and the dates on which the same accrued. If a claimant desires to contest either the right to exoneration from or the right to limitation of liability the claimant shall file and serve an answer to the complaint unless the claim has included an answer.
(6) Information To Be Given Claimants.
Within 30 days after the date specified in the notice for filing claims, or within such time as the court thereafter may allow, the plaintiff shall mail to the attorney for each claimant (or if the claimant has no attorney to the claimant) a list setting forth (a) the name of each claimant, (b) the name and address of the claimant's attorney (if the claimant is known to have one), (c) the nature of the claim, i.e., whether property loss, property damage, death, personal injury etc., and (d) the amount thereof.
(7) Insufficiency of Fund or Security.
Any claimant may by motion demand that the funds deposited in court or the security given by the plaintiff be increased on the ground that they are less than the value of the plaintiff's interest in the vessel and pending freight. Thereupon the court shall cause due appraisement to be made of the value of the plaintiff's interest in the vessel and pending freight; and if the court finds that the deposit or security is either insufficient or excessive it shall order its increase or reduction. In like manner any claimant may demand that the deposit or security be increased on the ground that it is insufficient to carry out the provisions of the statutes relating to claims in respect of loss of life or bodily injury; and, after notice and hearing, the court may similarly order that the deposit or security be increased or reduced.
(8) Objections to Claims: Distribution of Fund.
Any interested party may question or controvert any claim without filing an objection thereto. Upon determination of liability the fund deposited or secured, or the proceeds of the vessel and pending freight, shall be divided pro rata, subject to all relevant provisions of law, among the several claimants in proportion to the amounts of their respective claims, duly proved, saving, however, to all parties any priority to which they may be legally entitled.
(9) Venue; Transfer.
The complaint shall be filed in any district in which the vessel has been attached or arrested to answer for any claim with respect to which the plaintiff seeks to limit liability; or, if the vessel has not been attached or arrested, then in any district in which the owner has been sued with respect to any such claim. When the vessel has not been attached or arrested to answer the matters aforesaid, and suit has not been commenced against the owner, the proceedings may be had in the district in which the vessel may be, but if the vessel is not within any district and no suit has been commenced in any district, then the complaint may be filed in any district. For the convenience of parties and witnesses, in the interest of justice, the court may transfer the action to any district; if venue is wrongly laid the court shall dismiss or, if it be in the interest of justice, transfer the action to any district in which it could have been brought. If the vessel shall have been sold, the proceeds shall represent the vessel for the purposes of these rules.
Rule G. Forfeiture Actions In Rem
(1) Scope.
This rule governs a forfeiture action in rem arising from a federal statute. To the extent that this rule does not address an issue, Supplemental Rules C and E and the Federal Rules of Civil Procedure also apply.
(2) Complaint. The complaint must:
(a) be verified;
(b) state the grounds for subject-matter jurisdiction, in rem jurisdiction over the defendant property, and venue;
(c) describe the property with reasonable particularity;
(d) if the property is tangible, state its location when any seizure occurred and — if different — its location when the action is filed;
(e) identify the statute under which the forfeiture action is brought; and
(f) state sufficiently detailed facts to support a reasonable belief that the government will be able to meet its burden of proof at trial.
(3) Judicial Authorization and Process.
(a) Real Property.
If the defendant is real property, the government must proceed under 18 U.S.C. § 985.
(b) Other Property; Arrest Warrant.
If the defendant is not real property:
(i) the clerk must issue a warrant to arrest the property if it is in the government's possession, custody, or control;
(ii) the court — on finding probable cause — must issue a warrant to arrest the property if it is not in the government's possession, custody, or control and is not subject to a judicial restraining order; and
(iii) a warrant is not necessary if the property is subject to a judicial restraining order.
(c) Execution of Process.
(i) The warrant and any supplemental process must be delivered to a person or organization authorized to execute it, who may be:
(A) a marshal or any other United States officer or employee;
(B) someone under contract with the United States; or (C) someone specially appointed by the court for that purpose.
(ii) The authorized person or organization must execute the warrant and any supplemental process on property in the United States as soon as practicable unless:
(A) the property is in the government's possession, custody, or control; or
(B) the court orders a different time when the complaint is under seal, the action is stayed before the warrant and supplemental process are executed, or the court finds other good cause.
(iii) The warrant and any supplemental process may be executed within the district or, when authorized by statute, outside the district.
(iv) If executing a warrant on property outside the United States is required, the warrant may be transmitted to an appropriate authority for serving process where the property is located.
(4) Notice.
(a) Notice by Publication.
(i) When Publication Is Required. A judgment of forfeiture may be entered only if the government has published notice of the action within a reasonable time after filing the complaint or at a time the court orders. But notice need not be published if:
(A) the defendant property is worth less than $1,000 and direct notice is sent under Rule G(4)(b) to every person the government can reasonably identify as a potential claimant; or
(B) the court finds that the cost of publication exceeds the property's value and that other means of notice would satisfy due process.
(ii) Content of the Notice. Unless the court orders otherwise, the notice must:
(A) describe the property with reasonable particularity;
(B) state the times under Rule G(5) to file a claim and to answer; and
(C) name the government attorney to be served with the claim and answer.
(iii) Frequency of Publication. Published notice must appear:
(A) once a week for three consecutive weeks; or
(B) only once if, before the action was filed, notice of nonjudicial forfeiture of the same property was published on an official internet government forfeiture site for at least 30 consecutive days, or in a newspaper of general circulation for three consecutive weeks in a district where publication is authorized under Rule G(4)(a)(iv).
(iv) Means of Publication. The government should select from the following options a means of publication reasonably calculated to notify potential claimants of the action:
(A) if the property is in the United States, publication in a newspaper generally circulated in the district where the action is filed, where the property was seized, or where property that was not seized is located;
(B) if the property is outside the United States, publication in a newspaper generally circulated in a district where the action is filed, in a newspaper generally circulated in the country where the property is located, or in legal notices published and generally circulated in the country where the property is located; or
(C) instead of (A) or (B), posting a notice on an official internet government forfeiture site for at least 30 consecutive days.
(b) Notice to Known Potential Claimants.
(i) Direct Notice Required. The government must send notice of the action and a copy of the complaint to any person who reasonably appears to be a potential claimant on the facts known to the government before the end of the time for filing a claim under Rule G(5)(a)(ii)(B).
(ii) Content of the Notice. The notice must state:
(A) the date when the notice is sent;
(B) a deadline for filing a claim, at least 35 days after the notice is sent;
(C) that an answer or a motion under Rule 12 must be filed no later than 21 days after filing the claim; and
(D) the name of the government attorney to be served with the claim and answer.
(iii) Sending Notice.
(A) The notice must be sent by means reasonably calculated to reach the potential claimant.
(B) Notice may be sent to the potential claimant or to the attorney representing the potential claimant with respect to the seizure of the property or in a related investigation, administrative forfeiture proceeding, or criminal case.
(C) Notice sent to a potential claimant who is incarcerated must be sent to the place of incarceration.
(D) Notice to a person arrested in connection with an offense giving rise to the forfeiture who is not incarcerated when notice is sent may be sent to the address that person last gave to the agency that arrested or released the person.
(E) Notice to a person from whom the property was seized who is not incarcerated when notice is sent may be sent to the last address that person gave to the agency that seized the property.
(iv) When Notice Is Sent. Notice by the following means is sent on the date when it is placed in the mail, delivered to a commercial carrier, or sent by electronic mail.
(v) Actual Notice. A potential claimant who had actual notice of a forfeiture action may not oppose or seek relief from forfeiture because of the government's failure to send the required notice.
(5) Responsive Pleadings.
(a) Filing a Claim.
(i) A person who asserts an interest in the defendant property may contest the forfeiture by filing a claim in the court where the action is pending. The claim must:
(A) identify the specific property claimed;
(B) identify the claimant and state the claimant's interest in the property;
(C) be signed by the claimant under penalty of perjury; and
(D) be served on the government attorney designated under Rule G(4)(a)(ii)(C) or (b)(ii)(D).
(ii) Unless the court for good cause sets a different time, the claim must be filed:
(A) by the time stated in a direct notice sent under Rule G(4)(b);
(B) if notice was published but direct notice was not sent to the claimant or the claimant's attorney, no later than 30 days after final publication of newspaper notice or legal notice under Rule G(4)(a) or no later than 60 days after the first day of publication on an official internet government forfeiture site; or
(C) if notice was not published and direct notice was not sent to the claimant or the claimant's attorney:
(1) if the property was in the government's possession, custody, or control when the complaint was filed, no later than 60 days after the filing, not counting any time when the complaint was under seal or when the action was stayed before execution of a warrant issued under Rule G(3)(b); or
(2) if the property was not in the government's possession, custody, or control when the complaint was filed, no later than 60 days after the government complied with 18 U.S.C. § 985(c) as to real property, or 60 days after process was executed on the property under Rule G(3).
(iii) A claim filed by a person asserting an interest as a bailee must identify the bailor, and if filed on the bailor's behalf must state the authority to do so.
(b) Answer. A claimant must serve and file an answer to the complaint or a motion under Rule 12 within 20 days after filing the claim. A claimant waives an objection to in rem jurisdiction or to venue if the objection is not made by motion or stated in the answer.
(6) Special Interrogatories.
(a) Time and Scope.
The government may serve special interrogatories limited to the claimant's identity and relationship to the defendant property without the court's leave at any time after the claim is filed and before discovery is closed. But if the claimant serves a motion to dismiss the action, the government must serve the interrogatories within 20 days after the motion is served.
(b) Answers or Objections.
Answers or objections to these interrogatories must be served within 21 days after the interrogatories are served.
(c) Government's Response Deferred.
The government need not respond to a claimant's motion to dismiss the action under Rule G(8)(b) until 21 days after the claimant has answered these interrogatories.
(7) Preserving, Preventing Criminal Use, and Disposing of Property; Sales.
(a) Preserving and Preventing Criminal Use of Property.
When the government does not have actual possession of the defendant property the court, on motion or on its own, may enter any order necessary to preserve the property, to prevent its removal or encumbrance, or to prevent its use in a criminal offense.
(b) Interlocutory Sale or Delivery.
(i) Order to Sell.
On motion by a party or a person having custody of the property, the court may order all or part of the property sold if:
(A) the property is perishable or at risk of deterioration, decay, or injury by being detained in custody pending the action;
(B) the expense of keeping the property is excessive or is disproportionate to its fair market value;
(C) the property is subject to a mortgage or to taxes on which the owner is in default; or
(D) the court finds other good cause.
(ii) Who Makes the Sale. A sale must be made by a United States agency that has authority to sell the property, by the agency's contractor, or by any person the court designates.
(iii) Sale Procedures. The sale is governed by 28 U.S.C. §§ 2001, 2002, and 2004, unless all parties, with the court's approval, agree to the sale, aspects of the sale, or different procedures.
(iv) Sale Proceeds. Sale proceeds are a substitute res subject to forfeiture in place of the property that was sold. The proceeds must be held in an interest-bearing account maintained by the United States pending the conclusion of the forfeiture action.
(v) Delivery on a Claimant's Motion. The court may order that the property be delivered to the claimant pending the conclusion of the action if the claimant shows circumstances that would permit sale under Rule G(7)(b)(i) and gives security under these rules.
(c) Disposing of Forfeited Property. Upon entry of a forfeiture judgment, the property or proceeds from selling the property must be disposed of as provided by law.
(8) Motions.
(a) Motion To Suppress Use of the Property as Evidence.
If the defendant property was seized, a party with standing to contest the lawfulness of the seizure may move to suppress use of the property as evidence. Suppression does not affect forfeiture of the property based on independently derived evidence.
(b) Motion To Dismiss the Action.
(i) A claimant who establishes standing to contest forfeiture may move to dismiss the action under Rule 12(b).
(ii) In an action governed by 18 U.S.C. § 983(a)(3)(D) the complaint may not be dismissed on the ground that the government did not have adequate evidence at the time the complaint was filed to establish the forfeitability of the property. The sufficiency of the complaint is governed by Rule G(2).
(c) Motion To Strike a Claim or Answer.
(i) At any time before trial, the government may move to strike a claim or answer:
(A) for failing to comply with Rule G(5) or (6), or
(B) because the claimant lacks standing.
(ii) The motion:
(A) must be decided before any motion by the claimant to dismiss the action; and
(B) may be presented as a motion for judgment on the pleadings or as a motion to determine after a hearing or by summary judgment whether the claimant can carry the burden of establishing standing by a preponderance of the evidence.
(d) Petition To Release Property.
(i) If a United States agency or an agency's contractor holds property for judicial or nonjudicial forfeiture under a statute governed by 18 U.S.C. § 983(f), a person who has filed a claim to the property may petition for its release under § 983(f).
(ii) If a petition for release is filed before a judicial forfeiture action is filed against the property, the petition may be filed either in the district where the property was seized or in the district where a warrant to seize the property issued. If a judicial forfeiture action against the property is later filed in another district — or if the government shows that the action will be filed in another district — the petition may be transferred to that district under 28 U.S.C. § 1404.
(e) Excessive Fines.
A claimant may seek to mitigate a forfeiture under the Excessive Fines Clause of the Eighth Amendment by motion for summary judgment or by motion made after entry of a forfeiture judgment if:
(i) the claimant has pleaded the defense under Rule 8; and
(ii) the parties have had the opportunity to conduct civil discovery on the defense.
(9) Trial.
Trial is to the court unless any party demands trial by jury under Rule 38 .
Rule G. Forfeiture Actions In Rem
(1) Scope.
This rule governs a forfeiture action in rem arising from a federal statute. To the extent that this rule does not address an issue, Supplemental Rules C and E and the Federal Rules of Civil Procedure also apply.
(2) Complaint. The complaint must:
(a) be verified;
(b) state the grounds for subject-matter jurisdiction, in rem jurisdiction over the defendant property, and venue;
(c) describe the property with reasonable particularity;
(d) if the property is tangible, state its location when any seizure occurred and — if different — its location when the action is filed;
(e) identify the statute under which the forfeiture action is brought; and
(f) state sufficiently detailed facts to support a reasonable belief that the government will be able to meet its burden of proof at trial.
(3) Judicial Authorization and Process.
(a) Real Property.
If the defendant is real property, the government must proceed under 18 U.S.C. § 985 .
(b) Other Property; Arrest Warrant.
If the defendant is not real property:
(i) the clerk must issue a warrant to arrest the property if it is in the government's possession, custody, or control;
(ii) the court — on finding probable cause — must issue a warrant to arrest the property if it is not in the government's possession, custody, or control and is not subject to a judicial restraining order; and
(iii) a warrant is not necessary if the property is subject to a judicial restraining order.
(c) Execution of Process.
(i) The warrant and any supplemental process must be delivered to a person or organization authorized to execute it, who may be:
(A) a marshal or any other United States officer or employee;
(B) someone under contract with the United States; or (C) someone specially appointed by the court for that purpose.
(ii) The authorized person or organization must execute the warrant and any supplemental process on property in the United States as soon as practicable unless:
(A) the property is in the government's possession, custody, or control; or
(B) the court orders a different time when the complaint is under seal, the action is stayed before the warrant and supplemental process are executed, or the court finds other good cause.
(iii) The warrant and any supplemental process may be executed within the district or, when authorized by statute, outside the district.
(iv) If executing a warrant on property outside the United States is required, the warrant may be transmitted to an appropriate authority for serving process where the property is located.
(4) Notice.
(a) Notice by Publication.
(i) When Publication Is Required. A judgment of forfeiture may be entered only if the government has published notice of the action within a reasonable time after filing the complaint or at a time the court orders. But notice need not be published if:
(A) the defendant property is worth less than $1,000 and direct notice is sent under Rule G(4)(b) to every person the government can reasonably identify as a potential claimant; or
(B) the court finds that the cost of publication exceeds the property's value and that other means of notice would satisfy due process.
(ii) Content of the Notice. Unless the court orders otherwise, the notice must:
(A) describe the property with reasonable particularity;
(B) state the times under Rule G(5) to file a claim and to answer; and
(C) name the government attorney to be served with the claim and answer.
(iii) Frequency of Publication. Published notice must appear:
(A) once a week for three consecutive weeks; or
(B) only once if, before the action was filed, notice of nonjudicial forfeiture of the same property was published on an official internet government forfeiture site for at least 30 consecutive days, or in a newspaper of general circulation for three consecutive weeks in a district where publication is authorized under Rule G(4)(a)(iv).
(iv) Means of Publication. The government should select from the following options a means of publication reasonably calculated to notify potential claimants of the action:
(A) if the property is in the United States, publication in a newspaper generally circulated in the district where the action is filed, where the property was seized, or where property that was not seized is located;
(B) if the property is outside the United States, publication in a newspaper generally circulated in a district where the action is filed, in a newspaper generally circulated in the country where the property is located, or in legal notices published and generally circulated in the country where the property is located; or
(C) instead of (A) or (B), posting a notice on an official internet government forfeiture site for at least 30 consecutive days.
(b) Notice to Known Potential Claimants.
(i) Direct Notice Required. The government must send notice of the action and a copy of the complaint to any person who reasonably appears to be a potential claimant on the facts known to the government before the end of the time for filing a claim under Rule G(5)(a)(ii)(B).
(ii) Content of the Notice. The notice must state:
(A) the date when the notice is sent;
(B) a deadline for filing a claim, at least 35 days after the notice is sent;
(C) that an answer or a motion under Rule 12 must be filed no later than 21 days after filing the claim; and
(D) the name of the government attorney to be served with the claim and answer.
(iii) Sending Notice.
(A) The notice must be sent by means reasonably calculated to reach the potential claimant.
(B) Notice may be sent to the potential claimant or to the attorney representing the potential claimant with respect to the seizure of the property or in a related investigation, administrative forfeiture proceeding, or criminal case.
(C) Notice sent to a potential claimant who is incarcerated must be sent to the place of incarceration.
(D) Notice to a person arrested in connection with an offense giving rise to the forfeiture who is not incarcerated when notice is sent may be sent to the address that person last gave to the agency that arrested or released the person.
(E) Notice to a person from whom the property was seized who is not incarcerated when notice is sent may be sent to the last address that person gave to the agency that seized the property.
(iv) When Notice Is Sent. Notice by the following means is sent on the date when it is placed in the mail, delivered to a commercial carrier, or sent by electronic mail.
(v) Actual Notice. A potential claimant who had actual notice of a forfeiture action may not oppose or seek relief from forfeiture because of the government's failure to send the required notice.
(5) Responsive Pleadings.
(a) Filing a Claim.
(i) A person who asserts an interest in the defendant property may contest the forfeiture by filing a claim in the court where the action is pending. The claim must:
(A) identify the specific property claimed;
(B) identify the claimant and state the claimant's interest in the property;
(C) be signed by the claimant under penalty of perjury; and
(D) be served on the government attorney designated under Rule G(4)(a)(ii)(C) or (b)(ii)(D).
(ii) Unless the court for good cause sets a different time, the claim must be filed:
(A) by the time stated in a direct notice sent under Rule G(4)(b);
(B) if notice was published but direct notice was not sent to the claimant or the claimant's attorney, no later than 30 days after final publication of newspaper notice or legal notice under Rule G(4)(a) or no later than 60 days after the first day of publication on an official internet government forfeiture site; or
(C) if notice was not published and direct notice was not sent to the claimant or the claimant's attorney:
(1) if the property was in the government's possession, custody, or control when the complaint was filed, no later than 60 days after the filing, not counting any time when the complaint was under seal or when the action was stayed before execution of a warrant issued under Rule G(3)(b); or
(2) if the property was not in the government's possession, custody, or control when the complaint was filed, no later than 60 days after the government complied with 18 U.S.C. § 985(c) as to real property, or 60 days after process was executed on the property under Rule G(3).
(iii) A claim filed by a person asserting an interest as a bailee must identify the bailor, and if filed on the bailor's behalf must state the authority to do so.
(b) Answer. A claimant must serve and file an answer to the complaint or a motion under Rule 12 within 21 days after filing the claim. A claimant waives an objection to in rem jurisdiction or to venue if the objection is not made by motion or stated in the answer.
(6) Special Interrogatories.
(a) Time and Scope.
The government may serve special interrogatories limited to the claimant's identity and relationship to the defendant property without the court's leave at any time after the claim is filed and before discovery is closed. But if the claimant serves a motion to dismiss the action, the government must serve the interrogatories within 21 days after the motion is served.
(b) Answers or Objections.
Answers or objections to these interrogatories must be served within 21 days after the interrogatories are served.
(c) Government's Response Deferred.
The government need not respond to a claimant's motion to dismiss the action under Rule G(8)(b) until 21 days after the claimant has answered these interrogatories.
(7) Preserving, Preventing Criminal Use, and Disposing of Property; Sales.
(a) Preserving and Preventing Criminal Use of Property.
When the government does not have actual possession of the defendant property the court, on motion or on its own, may enter any order necessary to preserve the property, to prevent its removal or encumbrance, or to prevent its use in a criminal offense.
(b) Interlocutory Sale or Delivery.
(i) Order to Sell.
On motion by a party or a person having custody of the property, the court may order all or part of the property sold if:
(A) the property is perishable or at risk of deterioration, decay, or injury by being detained in custody pending the action;
(B) the expense of keeping the property is excessive or is disproportionate to its fair market value;
(C) the property is subject to a mortgage or to taxes on which the owner is in default; or
(D) the court finds other good cause.
(ii) Who Makes the Sale. A sale must be made by a United States agency that has authority to sell the property, by the agency's contractor, or by any person the court designates.
(iii) Sale Procedures. The sale is governed by 28 U.S.C. §§ 2001, 2002, and 2004, unless all parties, with the court's approval, agree to the sale, aspects of the sale, or different procedures.
(iv) Sale Proceeds. Sale proceeds are a substitute res subject to forfeiture in place of the property that was sold. The proceeds must be held in an interest-bearing account maintained by the United States pending the conclusion of the forfeiture action.
(v) Delivery on a Claimant's Motion. The court may order that the property be delivered to the claimant pending the conclusion of the action if the claimant shows circumstances that would permit sale under Rule G(7)(b)(i) and gives security under these rules.
(c) Disposing of Forfeited Property. Upon entry of a forfeiture judgment, the property or proceeds from selling the property must be disposed of as provided by law.
(8) Motions.
(a) Motion To Suppress Use of the Property as Evidence.
If the defendant property was seized, a party with standing to contest the lawfulness of the seizure may move to suppress use of the property as evidence. Suppression does not affect forfeiture of the property based on independently derived evidence.
(b) Motion To Dismiss the Action.
(i) A claimant who establishes standing to contest forfeiture may move to dismiss the action under Rule 12(b).
(ii) In an action governed by 18 U.S.C. § 983(a)(3)(D) the complaint may not be dismissed on the ground that the government did not have adequate evidence at the time the complaint was filed to establish the forfeitability of the property. The sufficiency of the complaint is governed by Rule G(2).
(c) Motion To Strike a Claim or Answer.
(i) At any time before trial, the government may move to strike a claim or answer:
(A) for failing to comply with Rule G(5) or (6), or
(B) because the claimant lacks standing.
(ii) The motion:
(A) must be decided before any motion by the claimant to dismiss the action; and
(B) may be presented as a motion for judgment on the pleadings or as a motion to determine after a hearing or by summary judgment whether the claimant can carry the burden of establishing standing by a preponderance of the evidence.
(d) Petition To Release Property.
(i) If a United States agency or an agency's contractor holds property for judicial or nonjudicial forfeiture under a statute governed by 18 U.S.C. § 983(f), a person who has filed a claim to the property may petition for its release under § 983(f).
(ii) If a petition for release is filed before a judicial forfeiture action is filed against the property, the petition may be filed either in the district where the property was seized or in the district where a warrant to seize the property issued. If a judicial forfeiture action against the property is later filed in another district — or if the government shows that the action will be filed in another district — the petition may be transferred to that district under 28 U.S.C. § 1404.
(e) Excessive Fines.
A claimant may seek to mitigate a forfeiture under the Excessive Fines Clause of the Eighth Amendment by motion for summary judgment or by motion made after entry of a forfeiture judgment if:
(i) the claimant has pleaded the defense under Rule 8; and
(ii) the parties have had the opportunity to conduct civil discovery on the defense.
(9) Trial.
Trial is to the court unless any party demands trial by jury under Rule 38.
(C) there is an unreasonable delay in securing release of the property.
(ii) In the circumstances described in Rule E(9)(b)(i), the court, on motion by a defendant or a person filing a statement of interest or right under Rule C(6) , may order that the property, rather than being sold, be delivered to the movant upon giving security under these rules.
(c) Sales, Proceeds.
All sales of property shall be made by the marshal or a deputy marshal, or by other person or organization having the warrant, or by any other person assigned by the court where the marshal or other person or organization having the warrant is a party in interest; and the proceeds of sale shall be forthwith paid into the registry of the court to be disposed of according to law.
(10) Preservation of Property.
When the owner or another person remains in possession of property attached or arrested under the provisions of Rule E(4)(b) that permit execution of process without taking actual possession, the court, on a party's motion or on its own, may enter any order necessary to preserve the property and prevent removal.>
Rule 44.1. Determining Foreign Law
A party who intends to raise an issue about a foreign country's law must give notice by a pleading or other writing. In determining foreign law, the court may consider any relevant material or source, including testimony, whether or not submitted by a party or admissible under the Federal Rules of Evidence. The court's determination must be treated as a ruling on a question of law.
Rule 38. Right to a Jury Trial; Demand
(a) Right Preserved.
The right of trial by jury as declared by the Seventh Amendment to the Constitution — or as provided by a federal statute — is preserved to the parties inviolate.
(b) Demand.
On any issue triable of right by a jury, a party may demand a jury trial by:
(1) serving the other parties with a written demand — which may be included in a pleading — no later than 14 days after the last pleading directed to the issue is served; and
(2) filing the demand in accordance with Rule 5(d) .
(c) Specifying Issues.
In its demand, a party may specify the issues that it wishes to have tried by a jury; otherwise, it is considered to have demanded a jury trial on all the issues so triable. If the party has demanded a jury trial on only some issues, any other party may — within 14 days after being served with the demand or within a shorter time ordered by the court — serve a demand for a jury trial on any other or all factual issues triable by jury.
(d) Waiver; Withdrawal.
A party waives a jury trial unless its demand is properly served and filed. A proper demand may be withdrawn only if the parties consent.
(e) Admiralty and Maritime Claims.
These rules do not create a right to a jury trial on issues in a claim that is an admiralty or maritime claim under Rule 9(h) .
Rule 22. Interpleader
(a) Grounds.
(1) By a Plaintiff.
Persons with claims that may expose a plaintiff to double or multiple liability may be joined as defendants and required to interplead. Joinder for interpleader is proper even though:
(A) the claims of the several claimants, or the titles on which their claims depend, lack a common origin or are adverse and independent rather than identical; or
(B) the plaintiff denies liability in whole or in part to any or all of the claimants.
(2) By a Defendant.
A defendant exposed to similar liability may seek interpleader through a crossclaim or counterclaim.
(b) Relation to Other Rules and Statutes.
This rule supplements — and does not limit — the joinder of parties allowed by Rule 20 . The remedy this rule provides is in addition to — and does not supersede or limit — the remedy provided by 28 U.S.C. §§ 1335 , 1397 , and 2361 . An action under those statutes must be conducted under these rules.
Rule 19. Required Joinder of Parties
(a) Persons Required to Be Joined if Feasible.
(1) Required Party.
A person who is subject to service of process and whose joinder will not deprive the court of subject-matter jurisdiction must be joined as a party if:
(A) in that person's absence, the court cannot accord complete relief among existing parties; or
(B) that person claims an interest relating to the subject of the action and is so situated that disposing of the action in the person's absence may:
(i) as a practical matter impair or impede the person's ability to protect the interest; or
(ii) leave an existing party subject to a substantial risk of incurring double, multiple, or otherwise inconsistent obligations because of the interest.
(2) Joinder by Court Order.
If a person has not been joined as required, the court must order that the person be made a party. A person who refuses to join as a plaintiff may be made either a defendant or, in a proper case, an involuntary plaintiff.
(3) Venue.
If a joined party objects to venue and the joinder would make venue improper, the court must dismiss that party.
(b) When Joinder Is Not Feasible.
If a person who is required to be joined if feasible cannot be joined, the court must determine whether, in equity and good conscience, the action should proceed among the existing parties or should be dismissed. The factors for the court to consider include:
(1) the extent to which a judgment rendered in the person's absence might prejudice that person or the existing parties;
(2) the extent to which any prejudice could be lessened or avoided by:
(A) protective provisions in the judgment;
(B) shaping the relief; or
(C) other measures;
(3) whether a judgment rendered in the person's absence would be adequate; and
(4) whether the plaintiff would have an adequate remedy if the action were dismissed for nonjoinder.
(c) Pleading the Reasons for Nonjoinder.
When asserting a claim for relief, a party must state:
(1) the name, if known, of any person who is required to be joined if feasible but is not joined; and
A pleading must state as a counterclaim any claim that — at the time of its service — the pleader has against an opposing party if the claim:
(A) arises out of the transaction or occurrence that is the subject matter of the opposing party's claim; and
(B) does not require adding another party over whom the court cannot acquire jurisdiction.
(2) Exceptions.
The pleader need not state the claim if:
(A) when the action was commenced, the claim was the subject of another pending action; or
(B) the opposing party sued on its claim by attachment or other process that did not establish personal jurisdiction over the pleader on that claim, and the pleader does not assert any counterclaim under this rule.
(b) Permissive Counterclaims.
A pleading may state as a counterclaim against an opposing party any claim that is not compulsory.
(c) Relief Sought in a Counterclaim.
A counterclaim need not diminish or defeat the recovery sought by the opposing party. It may request relief that exceeds in amount or differs in kind from the relief sought by the opposing party.
(d) Counterclaim Against the United States.
These rules do not expand the right to assert a counterclaim — or to claim a credit — against the United States or a United States officer or agency.
(e) Counterclaim Maturing or Acquired After Pleading.
The court may permit a party to file a supplemental pleading asserting a counterclaim that matured or was acquired by the party after serving an earlier pleading.
(f) [Abrogated]
(g) Crossclaim Against a Coparty.
A pleading may state as a crossclaim any claim by one party against a coparty if the claim arises out of the transaction or occurrence that is the subject matter of the original action or of a counterclaim, or if the claim relates to any property that is the subject matter of the original action. The crossclaim may include a claim that the coparty is or may be liable to the crossclaimant for all or part of a claim asserted in the action against the crossclaimant.
(h) Joining Additional Parties.
Rules 19 and 20 govern the addition of a person as a party to a counterclaim or crossclaim.
(i) Separate Trials; Separate Judgments.
If the court orders separate trials under Rule 42(b) , it may enter judgment on a counterclaim or crossclaim under Rule 54(b) when it has jurisdiction to do so, even if the opposing party's claims have been dismissed or otherwise resolved.
Rule 23.2. Actions Relating to Unincorporated Associations
An action brought by or against the members of an unincorporated
association as a class by naming certain members as representative
parties may be maintained only if it appears that the
representative parties will fairly and adequately protect the interests
of the association and its members. In the conduct of the action
the court may make appropriate orders corresponding with
those described in Rule 23(d), and the procedure for dismissal or
compromise of the action shall correspond with that provided in
Rule 23(e).
(As added Feb. 28, 1966, eff. July 1, 1966.)
Rule 24. Intervention
(a) INTERVENTION OF RIGHT. Upon timely application anyone
shall be permitted to intervene in an action: (1) when a statute of
the United States confers an unconditional right to intervene; or
(2) when the applicant claims an interest relating to the property
or transaction which is the subject of the action and the applicant
is so situated that the disposition of the action may as a practical
matter impair or impede the applicant’s ability to protect that interest,
unless the applicant’s interest is adequately represented by
existing parties.
(b) PERMISSIVE INTERVENTION. Upon timely application anyone
may be permitted to intervene in an action: (1) when a statute of
the United States confers a conditional right to intervene; or (2)
when an applicant’s claim or defense and the main action have a
question of law or fact in common. When a party to an action relies
for ground of claim or defense upon any statute or executive
order administered by a federal or state governmental officer or
agency or upon any regulation, order, requirement, or agreement
issued or made pursuant to the statute or executive order, the officer
or agency upon timely application may be permitted to intervene
in the action. In exercising its discretion the court shall
consider whether the intervention will unduly delay or prejudice
the adjudication of the rights of the original parties.
(c) PROCEDURE. A person desiring to intervene shall serve a motion
to intervene upon the parties as provided in Rule 5. The motion
shall state the grounds therefor and shall be accompanied by
a pleading setting forth the claim or defense for which intervention
is sought. The same procedure shall be followed when a statute
of the United States gives a right to intervene.
(As amended Dec. 27, 1946, eff. Mar. 19, 1948; Dec. 29, 1948, eff. Oct.
20, 1949; Jan. 21, 1963, eff. July 1, 1963; Feb. 28, 1966, eff. July 1, 1966;
Mar. 2, 1987, eff. Aug. 1, 1987; Apr. 30, 1991, eff. Dec. 1, 1991; Apr. 12,
2006, eff. Dec. 1, 2006.)
Rule 25. Substitution of Parties
(a) DEATH.
(1) If a party dies and the claim is not thereby extinguished,
the court may order substitution of the proper parties. The
motion for substitution may be made by any party or by the
successors or representatives of the deceased party and, together
with the notice of hearing, shall be served on the parties
as provided in Rule 5 and upon persons not parties in the
manner provided in Rule 4 for the service of a summons, and
may be served in any judicial district. Unless the motion for
substitution is made not later than 90 days after the death is
suggested upon the record by service of a statement of the fact
of the death as provided herein for the service of the motion,
the action shall be dismissed as to the deceased party.
(2) In the event of the death of one or more of the plaintiffs
or of one or more of the defendants in an action in which the
right sought to be enforced survives only to the surviving
plaintiffs or only against the surviving defendants, the action
does not abate. The death shall be suggested upon the record
and the action shall proceed in favor of or against the surviving
parties.
(b) INCOMPETENCY. If a party becomes incompetent, the court
upon motion served as provided in subdivision (a) of this rule may
allow the action to be continued by or against the party’s representative.
(c) TRANSFER OF INTEREST. In case of any transfer of interest,
the action may be continued by or against the original party, unless
the court upon motion directs the person to whom the interest
is transferred to be substituted in the action or joined with the
original party. Service of the motion shall be made as provided in
subdivision (a) of this rule.
(d) PUBLIC OFFICERS; DEATH OR SEPARATION FROM OFFICE.
(1) When a public officer is a party to an action in his official
capacity and during its pendency dies, resigns, or otherwise
ceases to hold office, the action does not abate and the officer’s
successor is automatically substituted as a party. Proceedings
following the substitution shall be in the name of the
substituted party, but any misnomer not affecting the substantial
rights of the parties shall be disregarded. An order of
substitution may be entered at any time, but the omission to
enter such an order shall not affect the substitution.
(2) A public officer who sues or is sued in an official capacity
may be described as a party by the officer’s official title rather
than by name; but the court may require the officer’s name
to be added.
(As amended Dec. 29, 1948, eff. Oct. 20, 1949; Apr. 17, 1961, eff. July
19, 1961; Jan. 21, 1963, eff. July 1, 1963; Mar. 2, 1987, eff. Aug. 1, 1987.)
V. DEPOSITIONS AND DISCOVERY
Rule 26. General Provisions Governing Discovery; Duty of Disclosure
(a) REQUIRED DISCLOSURES; METHODS TO DISCOVER ADDITIONAL
MATTER.
(1) Initial Disclosures. Except in categories of proceedings
specified in Rule 26(a)(1)(E), or to the extent otherwise stipulated
or directed by order, a party must, without awaiting a
discovery request, provide to other parties:
(A) the name and, if known, the address and telephone
number of each individual likely to have discoverable information
that the disclosing party may use to support its
claims or defenses, unless solely for impeachment, identifying
the subjects of the information;
(B) a copy of, or a description by category and location
of, all documents, electronically stored information, and
tangible things that are in the possession, custody, or control
of the party and that the disclosing party may use to
support its claims or defenses, unless solely for impeachment;
(C) a computation of any category of damages claimed
by the disclosing party, making available for inspection
and copying as under Rule 34 the documents or other evidentiary
material, not privileged or protected from disclosure,
on which such computation is based, including materials
bearing on the nature and extent of injuries suffered;
and
(D) for inspection and copying as under Rule 34 any insurance
agreement under which any person carrying on an
insurance business may be liable to satisfy part or all of
a judgment which may be entered in the action or to indemnify
or reimburse for payments made to satisfy the
judgment.
(E) The following categories of proceedings are exempt
from initial disclosure under Rule 26(a)(1):
(i) an action for review on an administrative record;
(ii) a forfeiture action in rem arising from a federal
statute;
(iii) a petition for habeas corpus or other proceeding
to challenge a criminal conviction or sentence;
(iv) an action brought without counsel by a person in
custody of the United States, a state, or a state subdivision;
(v) an action to enforce or quash an administrative
summons or subpoena;
(vi) an action by the United States to recover benefit
payments;
(vii) an action by the United States to collect on a
student loan guaranteed by the United States;
(viii) a proceeding ancillary to proceedings in other
courts; and
(ix) an action to enforce an arbitration award.
These disclosures must be made at or within 14 days after the
Rule 26(f) conference unless a different time is set by stipulation
or court order, or unless a party objects during the conference
that initial disclosures are not appropriate in the circumstances
of the action and states the objection in the Rule
26(f) discovery plan. In ruling on the objection, the court must
determine what disclosures—if any—are to be made, and set
the time for disclosure. Any party first served or otherwise
joined after the Rule 26(f) conference must make these disclosures
within 30 days after being served or joined unless a different
time is set by stipulation or court order. A party must
make its initial disclosures based on the information then reasonably
available to it and is not excused from making its disclosures
because it has not fully completed its investigation of
the case or because it challenges the sufficiency of another
party’s disclosures or because another party has not made its
disclosures.
(2) Disclosure of Expert Testimony.
(A) In addition to the disclosures required by paragraph
(1), a party shall disclose to other parties the identity of
any person who may be used at trial to present evidence
under Rules 702, 703, or 705 of the Federal Rules of Evidence.
(B) Except as otherwise stipulated or directed by the
court, this disclosure shall, with respect to a witness who
is retained or specially employed to provide expert testimony
in the case or whose duties as an employee of the
party regularly involve giving expert testimony, be accompanied
by a written report prepared and signed by the witness.
The report shall contain a complete statement of all
opinions to be expressed and the basis and reasons therefor;
the data or other information considered by the witness
in forming the opinions; any exhibits to be used as a
summary of or support for the opinions; the qualifications
of the witness, including a list of all publications authored
by the witness within the preceding ten years; the compensation
to be paid for the study and testimony; and a
listing of any other cases in which the witness has testified
as an expert at trial or by deposition within the preceding
four years.
(C) These disclosures shall be made at the times and in
the sequence directed by the court. In the absence of other
directions from the court or stipulation by the parties, the
disclosures shall be made at least 90 days before the trial
date or the date the case is to be ready for trial or, if the
evidence is intended solely to contradict or rebut evidence
on the same subject matter identified by another party
under paragraph (2)(B), within 30 days after the disclosure
made by the other party. The parties shall supplement
these disclosures when required under subdivision (e)(1).
(3) Pretrial Disclosures. In addition to the disclosures required
by Rule 26(a)(1) and (2), a party must provide to other parties
and promptly file with the court the following information regarding
the evidence that it may present at trial other than
solely for impeachment:
(A) the name and, if not previously provided, the address
and telephone number of each witness, separately identifying
those whom the party expects to present and those
whom the party may call if the need arises;
(B) the designation of those witnesses whose testimony
is expected to be presented by means of a deposition and,
if not taken stenographically, a transcript of the pertinent
portions of the deposition testimony; and
(C) an appropriate identification of each document or
other exhibit, including summaries of other evidence, separately
identifying those which the party expects to offer
and those which the party may offer if the need arises.
Unless otherwise directed by the court, these disclosures must
be made at least 30 days before trial. Within 14 days thereafter,
unless a different time is specified by the court, a party
may serve and promptly file a list disclosing (i) any objections
to the use under Rule 32(a) of a deposition designated by another
party under Rule 26(a)(3)(B), and (ii) any objection, together
with the grounds therefor, that may be made to the admissibility
of materials identified under Rule 26(a)(3)(C). Objections
not so disclosed, other than objections under Rules
402 and 403 of the Federal Rules of Evidence, are waived unless
excused by the court for good cause.
(4) Form of Disclosures. Unless the court orders otherwise, all
disclosures under Rules 26(a)(1) through (3) must be made in
writing, signed, and served.
(5) Methods to Discover Additional Matter. Parties may obtain
discovery by one or more of the following methods: depositions
upon oral examination or written questions; written interrogatories;
production of documents or things or permission
to enter upon land or other property under Rule 34 or
45(a)(1)(C), for inspection and other purposes; physical and
mental examinations; and requests for admission.
(b) DISCOVERY SCOPE AND LIMITS. Unless otherwise limited by
order of the court in accordance with these rules, the scope of discovery
is as follows:
(1) In General. Parties may obtain discovery regarding any
matter, not privileged, that is relevant to the claim or defense
of any party, including the existence, description, nature, custody,
condition, and location of any books, documents, or
other tangible things and the identity and location of persons
having knowledge of any discoverable matter. For good cause,
the court may order discovery of any matter relevant to the
subject matter involved in the action. Relevant information
need not be admissible at the trial if the discovery appears
reasonably calculated to lead to the discovery of admissible
evidence. All discovery is subject to the limitations imposed
by Rule 26(b)(2)(i), (ii), and (iii).
(2) Limitations.
(A) By order, the court may alter the limits in these
rules on the number of depositions and interrogatories or
the length of depositions under Rule 30. By order or local
rule, the court may also limit the number of requests
under Rule 36.
(B) A party need not provide discovery of electronically
stored information from sources that the party identifies
as not reasonably accessible because of undue burden or
cost. On motion to compel discovery or for a protective
order, the party from whom discovery is sought must show
that the information is not reasonably accessible because
of undue burden or cost. If that showing is made, the court
may nonetheless order discovery from such sources if the
requesting party shows good cause, considering the limitations
of Rule 26(b)(2)(C). The court may specify conditions
for the discovery.
(C) The frequency or extent of use of the discovery methods
otherwise permitted under these rules and by any local
rule shall be limited by the court if it determines that: (i)
the discovery sought is unreasonably cumulative or duplicative,
or is obtainable from some other source that is
more convenient, less burdensome, or less expensive; (ii)
the party seeking discovery has had ample opportunity by
discovery in the action to obtain the information sought;
or (iii) the burden or expense of the proposed discovery
outweighs its likely benefit, taking into account the needs
of the case, the amount in controversy, the parties’ resources,
the importance of the issues at stake in the litigation,
and the importance of the proposed discovery in resolving
the issues. The court may act upon its own initiative
after reasonable notice or pursuant to a motion under
Rule 26(c).
(3) Trial Preparation: Materials. Subject to the provisions of
subdivision (b)(4) of this rule, a party may obtain discovery of
documents and tangible things otherwise discoverable under
subdivision (b)(1) of this rule and prepared in anticipation of
litigation or for trial by or for another party or by or for that
other party’s representative (including the other party’s attorney,
consultant, surety, indemnitor, insurer, or agent) only
upon a showing that the party seeking discovery has substantial
need of the materials in the preparation of the party’s
case and that the party is unable without undue hardship to
obtain the substantial equivalent of the materials by other
means. In ordering discovery of such materials when the required
showing has been made, the court shall protect against
disclosure of the mental impressions, conclusions, opinions, or
legal theories of an attorney or other representative of a party
concerning the litigation.
A party may obtain without the required showing a statement
concerning the action or its subject matter previously
made by that party. Upon request, a person not a party may
obtain without the required showing a statement concerning
the action or its subject matter previously made by that person.
If the request is refused, the person may move for a court
order. The provisions of Rule 37(a)(4) apply to the award of expenses
incurred in relation to the motion. For purposes of this
paragraph, a statement previously made is (A) a written statement
signed or otherwise adopted or approved by the person
making it, or (B) a stenographic, mechanical, electrical, or
other recording, or a transcription thereof, which is a substantially
verbatim recital of an oral statement by the person
making it and contemporaneously recorded.
(4) Trial Preparation: Experts.
(A) A party may depose any person who has been identified
as an expert whose opinions may be presented at trial.
If a report from the expert is required under subdivision
(a)(2)(B), the deposition shall not be conducted until after
the report is provided.(B) A party may, through interrogatories or by deposition,
discover facts known or opinions held by an expert
who has been retained or specially employed by another
party in anticipation of litigation or preparation for trial
and who is not expected to be called as a witness at trial
only as provided in Rule 35(b) or upon a showing of exceptional
circumstances under which it is impracticable for
the party seeking discovery to obtain facts or opinions on
the same subject by other means.
(C) Unless manifest injustice would result, (i) the court
shall require that the party seeking discovery pay the expert
a reasonable fee for time spent in responding to discovery
under this subdivision; and (ii) with respect to discovery
obtained under subdivision (b)(4)(B) of this rule the
court shall require the party seeking discovery to pay the
other party a fair portion of the fees and expenses reasonably
incurred by the latter party in obtaining facts and
opinions from the expert.
(5) Claims of Privilege or Protection of Trial-Preparation Materials.
(A) Information Withheld. When a party withholds information
otherwise discoverable under these rules by claiming
that it is privileged or subject to protection as trialpreparation
material, the party shall make the claim expressly
and shall describe the nature of the documents,
communications, or things not produced or disclosed in a
manner that, without revealing information itself privileged
or protected, will enable other parties to assess the
applicability of the privilege or protection.
(B) Information Produced. If information is produced in
discovery that is subject to a claim of privilege or of protection
as trial-preparation material, the party making
the claim may notify any party that received the information
of the claim and the basis for it. After being notified,
a party must promptly return, sequester, or destroy the
specified information and any copies it has and may not
use or disclose the information until the claim is resolved.
A receiving party may promptly present the information
to the court under seal for a determination of the claim.
If the receiving party disclosed the information before
being notified, it must take reasonable steps to retrieve it.
The producing party must preserve the information until
the claim is resolved.
(c) PROTECTIVE ORDERS. Upon motion by a party or by the person
from whom discovery is sought, accompanied by a certification
that the movant has in good faith conferred or attempted
to confer with other affected parties in an effort to resolve the dispute
without court action, and for good cause shown, the court in
which the action is pending or alternatively, on matters relating
to a deposition, the court in the district where the deposition is
to be taken may make any order which justice requires to protect
a party or person from annoyance, embarrassment, oppression, or
undue burden or expense, including one or more of the following:
(1) that the disclosure or discovery not be had; (2) that the disclosure or discovery may be had only on specified
terms and conditions, including a designation of the time
or place;
(3) that the discovery may be had only by a method of discovery
other than that selected by the party seeking discovery;
(4) that certain matters not be inquired into, or that the
scope of the disclosure or discovery be limited to certain matters;
(5) that discovery be conducted with no one present except
persons designated by the court;
(6) that a deposition, after being sealed, be opened only by
order of the court;
(7) that a trade secret or other confidential research, development,
or commercial information not be revealed or be revealed
only in a designated way; and
(8) that the parties simultaneously file specified documents
or information enclosed in sealed envelopes to be opened as directed
by the court.
If the motion for a protective order is denied in whole or in part,
the court may, on such terms and conditions as are just, order
that any party or other person provide or permit discovery. The
provisions of Rule 37(a)(4) apply to the award of expenses incurred
in relation to the motion.
(d) TIMING AND SEQUENCE OF DISCOVERY. Except in categories of
proceedings exempted from initial disclosure under Rule
26(a)(1)(E), or when authorized under these rules or by order or
agreement of the parties, a party may not seek discovery from
any source before the parties have conferred as required by Rule
26(f). Unless the court upon motion, for the convenience of parties
and witnesses and in the interests of justice, orders otherwise,
methods of discovery may be used in any sequence, and the fact
that a party is conducting discovery, whether by deposition or
otherwise, does not operate to delay any other party’s discovery.
(e) SUPPLEMENTATION OF DISCLOSURES AND RESPONSES. A party
who has made a disclosure under subdivision (a) or responded to
a request for discovery with a disclosure or response is under a
duty to supplement or correct the disclosure or response to include
information thereafter acquired if ordered by the court or in
the following circumstances:
(1) A party is under a duty to supplement at appropriate intervals
its disclosures under subdivision (a) if the party learns
that in some material respect the information disclosed is incomplete
or incorrect and if the additional or corrective information
has not otherwise been made known to the other parties
during the discovery process or in writing. With respect to
testimony of an expert from whom a report is required under
subdivision (a)(2)(B) the duty extends both to information contained
in the report and to information provided through a
deposition of the expert, and any additions or other changes to
this information shall be disclosed by the time the party’s disclosures
under Rule 26(a)(3) are due.
(2) A party is under a duty seasonably to amend a prior response
to an interrogatory, request for production, or request
for admission if the party learns that the response is in some material respect incomplete or incorrect and if the additional
or corrective information has not otherwise been made known
to the other parties during the discovery process or in writing.
(f) CONFERENCE OF PARTIES; PLANNING FOR DISCOVERY. Except in
categories of proceedings exempted from initial disclosure under
Rule 26(a)(1)(E) or when otherwise ordered, the parties must, as
soon as practicable and in any event at least 21 days before a
scheduling conference is held or a scheduling order is due under
Rule 16(b), confer to consider the nature and basis of their claims
and defenses and the possibilities for a prompt settlement or resolution
of the case, to make or arrange for the disclosures required
by Rule 26(a)(1), to discuss any issues relating to preserving discoverable
information, and to develop a proposed discovery plan
that indicates the parties’ views and proposals concerning:
(1) what changes should be made in the timing, form, or requirement
for disclosures under Rule 26(a), including a statement
as to when disclosures under Rule 26(a)(1) were made or
will be made;
(2) the subjects on which discovery may be needed, when discovery
should be completed, and whether discovery should be
conducted in phases or be limited to or focused upon particular
issues;
(3) any issues relating to disclosure or discovery of electronically
stored information, including the form or forms in which
it should be produced;
(4) any issues relating to claims of privilege or of protection
as trial-preparation material, including—if the parties agree
on a procedure to assert such claims after production—whether
to ask the court to include their agreement in an order;
(5) what changes should be made in the limitations on discovery
imposed under these rules or by local rule, and what
other limitations should be imposed; and
(6) any other orders that should be entered by the court
under Rule 26(c) or under Rule 16(b) and (c).
The attorneys of record and all unrepresented parties that have
appeared in the case are jointly responsible for arranging the conference,
for attempting in good faith to agree on the proposed discovery
plan, and for submitting to the court within 14 days after
the conference a written report outlining the plan. A court may
order that the parties or attorneys attend the conference in person.
If necessary to comply with its expedited schedule for Rule
16(b) conferences, a court may by local rule (i) require that the
conference between the parties occur fewer than 21 days before the
scheduling conference is held or a scheduling order is due under
Rule 16(b), and (ii) require that the written report outlining the
discovery plan be filed fewer than 14 days after the conference between
the parties, or excuse the parties from submitting a written
report and permit them to report orally on their discovery plan at
the Rule 16(b) conference.
(g) SIGNING OF DISCLOSURES, DISCOVERY REQUESTS, RESPONSES,
AND OBJECTIONS.
(1) Every disclosure made pursuant to subdivision (a)(1) or
subdivision (a)(3) shall be signed by at least one attorney of
record in the attorney’s individual name, whose address shall
be stated. An unrepresented party shall sign the disclosure and
state the party’s address. The signature of the attorney or
party constitutes a certification that to the best of the signer’s
knowledge, information, and belief, formed after a reasonable
inquiry, the disclosure is complete and correct as of the
time it is made.
(2) Every discovery request, response, or objection made by
a party represented by an attorney shall be signed by at least
one attorney of record in the attorney’s individual name,
whose address shall be stated. An unrepresented party shall
sign the request, response, or objection and state the party’s
address. The signature of the attorney or party constitutes a
certification that to the best of the signer’s knowledge, information,
and belief, formed after a reasonable inquiry, the request,
response, or objection is:
(A) consistent with these rules and warranted by existing
law or a good faith argument for the extension, modification,
or reversal of existing law;
(B) not interposed for any improper purpose, such as to
harass or to cause unnecessary delay or needless increase
in the cost of litigation; and
(C) not unreasonable or unduly burdensome or expensive,
given the needs of the case, the discovery already had in
the case, the amount in controversy, and the importance
of the issues at stake in the litigation.
If a request, response, or objection is not signed, it shall be
stricken unless it is signed promptly after the omission is
called to the attention of the party making the request, response,
or objection, and a party shall not be obligated to take
any action with respect to it until it is signed.
(3) If without substantial justification a certification is
made in violation of the rule, the court, upon motion or upon
its own initiative, shall impose upon the person who made the
certification, the party on whose behalf the disclosure, request,
response, or objection is made, or both, an appropriate
sanction, which may include an order to pay the amount of
the reasonable expenses incurred because of the violation, including
a reasonable attorney’s fee.
(As amended Dec. 27, 1946, eff. Mar. 19, 1948; Jan. 21, 1963, eff. July
1, 1963; Feb. 28, 1966, eff. July 1, 1966; Mar. 30, 1970, eff. July 1, 1970;
Apr. 29, 1980, eff. Aug. 1, 1980; Apr. 28, 1983, eff. Aug. 1, 1983; Mar.
2, 1987, eff. Aug. 1, 1987; Apr. 22, 1993, eff. Dec. 1, 1993; Apr. 17, 2000,
eff. Dec. 1, 2000; Apr. 12, 2006, eff. Dec. 1, 2006.)
NOTES
1. The pleader may use the material in one of the three sets of brackets.
His choice will depend upon whether he desires to plead the document verbatim,
or by exhibit, or according to its legal effect.
2. Under the rules free joinder of claims is permitted. See Rules 8(e) and
18. Consequently the claims set forth in each and all of the following forms
may be joined with this complaint or with each other. Ordinarily each
claim should be stated in a separate division of the complaint, and the divisions
should be designated as counts successively numbered. In particular
the rules permit alternative and inconsistent pleading. See Form 10.
(As amended Jan. 21, 1963, eff. July 1, 1963.)
Water
As Chairman of the Senate Environment and Public Works Committee, Senator Boxer has led efforts to increase investment in water infrastructure to protect communities from flooding, provide safe drinking water for families and improve management of water supplies. Throughout her Senate career, Senator Boxer has worked to secure funding for flood control, habitat restoration and water supply projects across California. She has also worked with other California lawmakers to provide relief to communities in the Central Valley that are suffering from drought conditions.
Easing Water Transfers in the Central Valley - Senator Boxer successfully fought to include an amendment in the Senate version of the fiscal year 2010 Energy and Water Appropriations bill to facilitate voluntary water transfers among Central Valley Project contractors. The measure, co-sponsored by Senator Feinstein, will provide the flexibility to deliver water to agricultural communities when they need it most. Such transfers have been identified by the Bureau of Reclamation and numerous water contractors as being a one of the most critical immediate tools available to provide relief from water shortages.
The Water Transfer Facilitation Act of 2009 – Senator Boxer and Senator Feinstein introduced the Water Transfer Facilitation Act of 2009, a bill that would allow voluntary transfers of 250,000 to 300,000 acre feet of water a year among communities in the San Joaquin Valley. Reps. Dennis Cardoza and Jim Costa introduced similar legislation in the House. The legislation would grant new authority to the Bureau of Reclamation to approve water transfers between sellers and buyers in the San Joaquin Valley, reducing unnecessary delays in water transfers at a time when Central Valley farmers have been hard hit by water shortages.
Two Gates and Intertie – Senator Boxer has supported infrastructure projects such as the Intertie between the Delta-Mendota Canal and the California Aqueduct, and “Two Gates,” the construction of two temporary gates in Old River and Connection Slough in the Sacramento-San Joaquin River Delta to control the movement of delta smelt. These are some of the most important short-term projects available to help provide more reliable water supplies to agricultural communities in the San Joaquin Valley. In November 2009, Secretary Salazar announced that the Bureau of Reclamation was committed to funding and moving forward expeditiously with both projects.
Water Infrastructure and Drought Relief Projects in the Recovery Act – Senator Boxer was a strong supporter of the American Recovery and Reinvestment Act of 2009. She played a key role in helping secure funding for water infrastructure projects to create jobs, protect public health and improve management of water supplies. The Recovery Act is expected to bring $2.5 billion to California for flood control, water infrastructure, habitat restoration in the Sacramento-San Joaquin Delta, and other water and environmental programs.
Securing Drought Relief Projects in California - Senator Boxer wrote to Secretary of the Interior Ken Salazar in May 2009 requesting his assistance with drought relief measures in California, and joined with other members of the California delegation in meeting with the Administration to discuss short-term and long-term measures needed to help communities impacted by drought conditions. In July 2009, Secretary Salazar announced the allocation of $40 million from Recovery Act funds towards a variety of water conservation, pipeline replacement, and other drought relief projects throughout California. In September 2009, Secretary Salazar announced that all of the relevant agencies would come together to work out a plan for moving forward to address water shortages and environmental challenges in the Delta, to be released in December 2009.
Helping Farmers Affected by Drought - Senator Boxer co-authored an Agriculture-Water Conservation provision that was included in the Senate-passed Jobs Bill. The provision allows for a one-time 30 percent credit of up to $500 for farmers in areas affected by drought for the costs of water conservation systems, if the improvements reduce the use of irrigation water by at least 5 percent.
Securing Funding for CALFED - CALFED is a state and federal partnership that was formed in 1994 to ensure a clean and adequate water supply for agriculture, urban use, and environmental interests in the Sacramento-San Joaquin River Delta. In 1997, while serving on the Appropriations Committee, Senator Boxer secured the first and largest annual appropriation for the program: $85 million. Senator Boxer worked with Senator Feinstein in 2001 to negotiate and introduce legislation reauthorizing the program. The bill outlined a carefully crafted plan to balance the need for increased water supply, improved water quality, and environmental restoration. A modified version of this legislation was enacted as part of a larger water management package in 2004.
Water Resources Management
The Water Resources Development Act - As Chairman of the Senate Environment and Public Works Committee, Senator Boxer earned bipartisan praise for leading the fight for major water infrastructure legislation. The Water Resources Development Act (WRDA), which she shepherded through her committee and on the Senate floor, authorized more $1.3 billion for 54 water supply, restoration and flood control projects across California. The bill had previously languished in Congress for more than six years, but in Senator Boxer's first year as Chairman, she successfully fought to pass it through her committee and the Senate. In November 2007, Congress successfully overrode President Bush's veto of the bill, which authorized $23 billion for more than 900 water projects nationwide – including critical funding to restore flood protections in New Orleans and other areas devastated by Hurricane Katrina.
Securing Funding for Water Resources Projects - Senator Boxer helped secure over $180 million in the Fiscal Year 2010 Energy and Water Appropriations and Interior Appropriations bills for critical water supply, contaminated water remediation, flood control, navigation, and aquatic habitat restoration projects throughout California, including:
• $89,032,000 for flood control projects in the Sacramento region, including strengthening levees in the Natomas Basin, modifying Folsom dam to better manage flood water, adding protection along the banks of the Sacramento River, and making improvements to West Sacramento's existing flood control projects.
• $43,310,000 for flood control along the Santa Ana River in Orange, Riverside, and San Bernardino Counties.
• $300,000 to remediate perchlorate-contaminated groundwater in the Inland Empire.
• $1,149,000 for studies and projects to restore the Los Angeles River.
• $897,000 for flood control infrastructure in San Joaquin County.
• $117,000 for flood control projects along Lower Cache Creek in Yolo County.
• $99,000 for flood control projects along Lower Mission Creek in Santa Barbara County.
• $1,890,000 for flood protection along Murrieta Creek in Riverside County.
• $583,000 for flood protection along the Pajaro River in Central California.
• $14,250,000 for Hamilton Airfield Wetlands Restoration.
• $2,500,000 for structural improvements to Success Dam in Tulare County.
• $1,000,000 to dredge the Port of Oakland to accommodate larger container vessels.
The Water Infrastructure Financing Act – Senator Boxer was a major co-author of the Water Infrastructure Financing Act. As Chairman of the Senate Environment and Public Works Committee, she spearheaded negotiations over the legislation, which passed the committee in May 2009. This bipartisan legislation assists states with making low-interest loans to finance drinking water and wastewater infrastructure. It also revises and makes improvements to existing grant programs and provides incentives for improved water conservation and efficiency. The bill now awaits consideration by the full Senate.
The Water Efficiency, Conservation, and Adaptation Act of 2009 – Senator Boxer was a major co-author of the Water Efficiency, Conservation, and Adaptation Act of 2009, which authorizes a grant program to finance a variety of measures to improve drinking, wastewater, irrigation, and other water systems in order to help communities adapt to the impacts of climate change. A broad range of water recycling, desalination, irrigation, groundwater, and wastewater projects are eligible for assistance. The legislation also authorizes EPA's Water Sense program to provide consumer incentives for water-efficient products, buildings, landscapes, processes, or services. A modified version of the legislation was incorporated into the Clean Energy Jobs and American Power Act, which is currently under consideration by the Senate Environment and Public Works Committee, chaired by Senator Boxer.
Promoting Water Reuse, Conservation and Desalination - In July 2003, Senator Boxer introduced the California Affordable Quantity and Quality Water Act 1. CAL-AQQWA1 authorizes 22 expedited feasibility studies of water projects that call for the increased reuse, desalination, and conservation of water supplies.
Water Restoration Projects
Restoring the San Joaquin River - After 18-years of litigation over Chinook salmon habitat in the San Joaquin River below the Friant Dam, the parties to the suit reached an agreement in September 2006. The settlement outlines a plan to restore and maintain fish populations while minimizing adverse water supply impacts to the Friant Division contractors. Senator Boxer and Senator Feinstein introduced legislation in 2006 and 2007 to implement the federal agencies' obligations under the settlement. The bill was included in a public lands omnibus bill that passed in 2009.
Restoring the Los Angeles River – In 2006, Senator Barbara Boxer successfully included an authorization in the Water Resources Development Act for $12 million to restore and revitalize the 32-mile Los Angeles River for the benefit and enjoyment of the Los Angeles community. Since then, she has worked to secure appropriations to restore the Los Angeles River. The Fiscal Year 2010 Energy and Water Appropriations Bill included Boxer's requests for$817,000 to continue investigations and begin demonstration projects to restore 32 miles of the Los Angeles River and $332,000 to complete a feasibility study on the restoration of another 51 miles of the River.
Matilija Dam Ecosystem Restoration – As Chairman of the Senate Environment and Public Works Committee, Senator Boxer worked to secure a $139.6 million authorization for the ecosystem restoration of Matilija Creek as part of the Water Resources Development Act (WRDA) of 2007. Salt Marsh and Wetlands Restoration in Northern California – In 2005, Boxer secured a $64 million appropriation for the Napa River Salt Marsh Ecosystem restoration in Napa and Solano County, and a $153 million appropriation for the Hamilton Airfield ecosystem restoration project in Marin County.
Preserving the Salton Sea - Senator Barbara Boxer secured $4.5 million for research pertaining to Salton Sea restoration in the Senate-passed Fiscal Year 2002 Energy and Water Appropriations bill. Senator Boxer also successfully included a $30 million authorization for Salton Sea restoration projects in the 2007 Water Resources Development Act.
Clean Water, Parks and Coastal Protection Bond Act of 2006 - Senator Boxer endorsed Proposition 84 -- the Clean Water, Parks and Coastal Protection Bond Act of 2006. She supported the ballot measure to help clean up California's drinking water and preserve its beaches and ocean, especially in light of reports of record water and ocean pollution across the state.
Flood Control
Improving Flood Protection for Sacramento - As Chairman of the Senate Environment and Public Works Committee, Senator Boxer played a central role in ensuring that the Water Resources Development Act (WRDA) of 2007 included a $444 million authorization in federal funding to protect communities in Sacramento, which has the highest flood risk of any major city in the country because of the city's aging levee system. Since FY 2006, Boxer has helped secure over $230 million in appropriations for various flood control projects surrounding Sacramento, including levee and channel improvements along the Sacramento and American Rivers, and raising and modifying Folsom Dam.
Protecting the City of Napa from Floods - Senator Barbara Boxer secured $11 million in Fiscal Year 2009 and $10.6 million in Fiscal Year 2010 for the City of Napa to improve their flood protection.
Marine Conservation
Expanding California's Marine Sanctuaries - In the 111th Congress, Senator Boxer reintroduced the Gulf of the Farallones and Cordell Bank National Marine Sanctuaries Boundary Modification and Protection Act. Boxer's legislation would expand the boundaries of two existing National Marine Sanctuaries off northern California to protect the entire coastline in Sonoma County and as far north as Point Arena in Mendocino County.
Protecting Oceans and Great Lakes – In the 111th Congress, Senator Boxer reintroduced her comprehensive bill to protect oceans and Great Lakes, the National Oceans Protection Act. Senator Boxer has worked for the past three Congresses to raise awareness of the need for reforming ocean management and to make these changes a priority for Congress and the Administration. Boxer's bill would create a national ocean policy, establish regional ocean partnerships and an oceans and great lakes trust fund, and expand ocean research and education. This year, the Obama Administration created the Interagency Ocean Policy Task Force to improve federal coordination and management of ocean resources. Many of the Task Force's actions so far closely parallel the provisions of Senator Boxer's legislation.
Protecting Marine Mammals - One of Senator Boxer's early defining moments as a champion for ocean protection came during her tenure in the House of Representatives serving California's 6th District. Boxer led the effort to protect dolphins from encirclement and drowning in purse seine nets used to catch yellowfin tuna, a practice that was killing over 130,000 dolphins per year. She authored the 1990 law, the Dolphin Protection Consumer Information Act, establishing the Dolphin Safe label, which enabled consumers to select tuna products harvested using fishing practices that minimize dolphin bycatch.
Protecting Salmon Populations and California Fishermen - Senator Boxer introduced legislation in 2006 to provide financial relief to salmon fishermen, tribes, and related industries affected by the Klamath River salmon collapse and to support recovery efforts for wild salmon populations in the Klamath River. Provisions based on Boxer's bill were included in the 2006 Senate-passed Magnuson-Stevens bill, and disaster assistance totaling $47.2 million was distributed to fishermen and other affected groups.
Fisheries Management and Wetlands Restoration – The 2006 reauthorization of the Magnuson-Stevens Fisheries Act included two key provisions modified from Senator Boxer's National Oceans Protection Act. One provision would promote the use of a more holistic, ecosystem-based approach for fisheries management, rather than managing species individually – one of the principle recommendations of the U.S. Commission on Ocean Policy. In addition, Senator Boxer authored a provision establishing a Community-based Restoration Program at NOAA to provide local communities with tools and resources to undertake critical beach, coastal, fish habitat, and wetlands restoration projects.
U.S. EPA cannot overemphasize how important it is for the auditor to take under consideration the impact of state and local regulations on facility compliance. U.S. EPA has delegated various levels of authority to a majority of the states for most of the federal regulatory programs including enforcement. For example, most facilities regulated under RCRA, and/or CWA have been issued permits written by the states to ensure compliance with federal and state regulations. In turn, many states may have delegated various levels of authority to local jurisdictions. Similarly, local governments (e.g., counties, townships) may issue permits for air emissions from the facility. Therefore, auditors are advised to review local and state regulations in addition to the federal regulations in order to perform a comprehensive audit.
COMPLIANCE CATEGORY: EPCRA
REGULATORY REQUIREMENT OR MANAGEMENT PRACTICE
REVIEWER CHECKS
GENERAL EP.1
EP.1.1. The current status of any ongoing or unresolved Consent Orders, Compliance Agreements, Notices of Violation (NOVs), or equivalent state enforcement actions should be examined.
Determine if noncompliance issues have been resolved by reviewing a copy of the previous audit report, Consent Orders, Compliance Agreements, NOVs, or equivalent state enforcement actions. Determine and indicate, for open items, what corrective action is planned and milestones established to correct problems.
EP.1.2. Facilities are required to comply with all applicable federal regulatory requirements not contained in this checklist.
Determine if any new regulations have been issued since the finalization of this guide. If so, annotate checklist to include new standards. Determine if the facility has activities or facilities that are federally regulated, but not addressed in this checklist. Verify that the facility is in compliance with all applicable and newly issued regulations.
EP.1.3. Facilities are required to abide by state and local regulations concerning hazardous materials.
Verify that the facility is abiding by state and local requirements. Verify that the facility is operating according to permits issued by the state or local agencies. (NOTE: Issues typically regulated by state and local agencies include: − notification requirements − response plan requirements − spill response requirements.)
EP.10.1. Facilities with quantities of extremely hazardous substances equal to or greater than the threshold limitations are required to follow specific emergency planning procedures (40 CFR 355.30 and 355 Appendix A).
(NOTE: For purposes of this checklist item, an amount of any extremely hazardous substance means the total amount of an extremely hazardous substance present at any one time at a facility at concentrations greater than one percent by weight, regardless of location, number of containers, or method of storage.) Verify that the facility has notified the Commission (see definitions) that it is subject to the emergency planning requirements within 60 days after the facility first becomes subject to these requirements. Verify that the facility has a designated representative who participates in the local emergency planning process as a facility emergency response coordinator. Verify that the facility has notified the local emergency planning committee, or governor if there is no committee, of the facility representative within 30 days after establishment of a local emergency planning committee. Verify that the local emergency planning committee is informed of any changes occurring at the facility that may be relevant to emergency planning. Verify that, upon request of the local emergency planning committee, the facility promptly provides to the committee any information necessary for development or implementation of the local emergency plan. (NOTE: If a container or storage vessel holds a mixture or solution of an extremely hazardous substance, then the concentration of extremely hazardous substance, in weight percent (greater than 1 percent sign), shall be multiplied by the mass (in pounds) in the vessel to determine the actual quantity of extremely hazardous substance therein. Extremely hazardous substances that are solids are subject to either of two threshold planning quantities (i.e., 500/10,000 lb). The lower quantity applies only if the solid exists in powdered form and has a particle size less than 100 microns; or is handled in solution or in molten form; or meets the criteria for a NFPA rating of 2, 3, or 4 for reactivity. If the solid does not meet any of these criteria, it is subject to the upper (10,000 lb) TPQ. The 100-micron level may be determined by multiplying the weight percent of solid with a particle size less than 100 microns in a particular container by the quantity of solid in the container. The amount of solid in solution may be determined by multiplying the weight percent of solid in the solution in a particular container by the quantity of solution in the container. The amount of solid in molten form must be multiplied by 0.3 to determine whether the lower threshold planning quantity is met.)
EP.10.2. The contingency plan developed for the facility should be compared to the local emergency contingency plan (MP).
Verify that the facility contingency plan is compatible with the contingency plan developed by the local emergency planning committee. Verify that the facility contingency plan considers how local emergency response officials will likely respond to a chemical release.
COMPLIANCE CATEGORY: EPCRA
REGULATORY REQUIREMENT OR MANAGEMENT PRACTICE
REVIEWER CHECKS
RELEASE, NOTIFICATION, REPORTING EP.20
(NOTE: Emergency release notification requirements do not apply to: − any release that results in exposure to persons solely within the boundaries of the facility − any release that is a federally permitted release as defined in section 101 (10) of CERCLA − any release that is continuous and stable in quantity and rate under the definitions in 40 CFR 302.8(b) − any release of a pesticide product exempt from CERCLA section 103(a) reporting under section 103(e) of CERCLA − any release not meeting the definition of release under Section 101(22) of CERCLA, and therefore exempt from Section 103(a) reporting − any radionuclide release which occurs: − naturally in soil from land holdings such as parks, golf courses, or other large tracts of land − naturally from land disturbance activities, including farming, construction, and land disturbance incidental to extraction during mining activities, except that which occurs at uranium, phosphate, tin, zircon, hafnium, vanadium, monazite, and rare earth mines − from the dumping and transportation of coal and coal ash (including fly ash, bottom ash, and boiler slags), including the dumping and land spreading operations that occur during coal ash uses − from piles of coal and coal ash, including fly ash, bottom ash, and boiler slags.) (NOTE: Exemption from these emergency release notification requirements for continuous releases does not include exemption from requirements for: − initial notifications as defined in 40 CFR 302.8(d) and (e) − notification of a “statistically significant increase” − notification of a “new release” − notification of a change in the normal range of the release as required under 40 CFR 302.8(g)(2).)
EP.20.1 When there is a release of a reportable quantity (RQ) of any extremely hazardous substance or CERCLA hazardous substance emergency release notification is required (40 CFR 355.40 and 355 Appendices A and B)
Determine if there has been a release of an extremely hazardous substance or CERCLA hazardous substance in excess of the RQ. Verify that, if a release has occurred in excess of the reportable quantity, the following are immediately notified: − community emergency coordinator for the local emergency planning committee of any area likely to be affected by the release − state emergency response commission of any state likely to be affected by the release − local emergency response personnel if there is no local emergency planning committee.
COMPLIANCE CATEGORY: EPCRA
REGULATORY REQUIREMENT OR MANAGEMENT PRACTICE
REVIEWER CHECKS
Verify that the notice contains the following, to the extent known at the time of notice, so long as no delay in notice or emergency response results: − the chemical name or identity of any substance involved in the release − an indication of whether the substance is an extremely hazardous substance − an estimate of the quantity of any such substance that was released into the environment − the time and duration of the release − the medium or media into which the release occurred − any known or anticipated acute or chronic health risks associated with the emergency, and, where appropriate, advice regarding medial attention necessary for exposed individuals − proper precautions to take as a result of the release, including evacuation (unless such information is readily available to the community emergency coordination because of the local emergency plan) − the names and telephone numbers of the person or persons to be contacted for further information. Verify that, after the immediate verbal notification, a written follow-up emergency notification is produced which contains the same information detailed in the verbal notice (outlined above), plus: − actions taken to respond to and contain the release − any known or anticipated acute or chronic health risks associated with the release − advice regarding medical attention necessary for exposed individuals.
EP.20.2. Releases in excess of or equal to the RQ of listed and unlisted hazardous substances shall be reported to the NRC immediately (40 CFR 302.5 through 302.6)
Verify that a release (other than a federally permitted release or application of a pesticide) of a hazardous substance from a vessel, an offshore facility, or an onshore facility is reported to the NRC immediately after the release is identified. (NOTE: 40 CFR 302.4 lists hazardous substances (see definitions section of this document) and RQs subject to the notification requirements outlined in 40 CFR 302.6. These hazardous substances contained in the tables and Appendix B of 40 CFR 302.4 are referred to in these regulations as “listed hazardous substances”. See 40 CFR 302.5(a).) (NOTE: The RQ of an unlisted hazardous substance (see definitions) is 100 lb, except for those unlisted hazardous wastes that exhibit extraction procedure (EP) toxicity identified in 40 CFR 261.24. Unlisted hazardous wastes that exhibit EP toxicity have the RQs listed in the table in 40 CFR 302.4 for the contaminant on which the characteristic of EP toxicity is based. The RQ applies to the waste itself, not merely to the toxic contaminant. If an unlisted hazardous waste exhibits EP toxicity on the basis of more than one contaminant, the RQ for that waste shall be stockpiling; excavating, handling, transporting, and storing ores and other raw materials; and replacing materials in mined-out areas as long as such materials have not been beneficiated or processed and do not contain elevated radionuclide concentrations (greater than 7.6 pCi/g of Uranium-238, 6.8 pCi/g of Thorium-232, or 8.4 pCi/g of Radium-226) − releases of radionuclides from the dumping and transportation of coal and coal ash (including fly ash, bottom ash, and boiler slags), including the dumping and land spreading operations that occur during coal ash uses − releases of radionuclides from piles of coal and coal ash, including fly ash, bottom ash, and boiler slags.) (NOTE: Except for releases of radionuclides, notification of the release of an RQ of solid particles of antimony, arsenic, beryllium, cadmium, chromium, copper, lead, nickel, selenium, silver, thallium, or zinc is not required if the mean diameter of the particles released is larger than 100 micrometers (0.004 in.).
EP.20.3. Specific notifications are required for releases of hazardous substances that qualify for reduced reporting options (40 CFR 302.8)
Determine if there are any releases that are continuous and stable in quantity and rate. Verify that the following notifications have been given: − initial telephone notification − initial written notification within 30 days of the initial telephone notification − follow-up notification within 30 days of the first anniversary date of the initial written notification − notification of changes in: − the composition or source of the release − information submitted in the initial written notification − information submitted in the follow-up notification when there is an increase in the quantity of the hazardous substances in any 24-h period that represents a statistically significant increase. Verify that, prior to making an initial telephone notification of a continuous release, the person in charge of a facility or vessel establishes a sound basis for qualifying the release for reporting by one of the following: − using release data, engineering estimates, knowledge of operating procedures, or best professional judgment to establish the continuity and stability of the release − reporting the release to the NRC for a period sufficient to establish the continuity and stability of the release or when a basis has been established to qualify the release for reduced reporting, initial notification to the NRC is made by telephone. Verify that the notification is identified as an initial continuous release notification
IRON MOUNTAIN MINE INSTITUTE - BIOREFINERY - HYDROPOWER - RESOURCE & RECOVERY - ARMAN CONSERVATORY TRUSTS
Federal Emergency Management Agency
U.S. Department of Homeland Security
500 C Street SW, Washington, D.C. 20472
(202) 646-2500
(Complete this section if your request relates to a specific project)
Name of Project: IRON MOUNTAIN MINE INSTITUTE
Location (include city/county and state): MINNESOTA, REDDING/ SHASTA AND CALIFORNIA
Corps District(s):
Non-Federal Sponsor Contact Information (Name, Phone, and Email Address):
Corps Report: If the Request is for a construction authorization, does the project have a
completed Corps report? yes no
Project Modification: Does this request modify an existing authorization? yes no
If yes, please provide a reference for the existing authorization
IRON MOUNTAIN MINE EPA ID: CAD980498612 OU 01 REDDING , CA 10/03/1986
Project Cost: 1 BILLION
Policy/Programmatic/Other Language Requests
(Complete this section if your request is programmatic or policy-related)
Provision Title: SAFE WATERSHED REFORM-ACT
Affected (if applicable):
Description of Purpose and Need for Request: CERCLA 118, DRINKING WATER
(Complete this section for ALL requests. Attach additional pages if needed.)
Dear Mr. Hutchens:
Thank you for taking the time to write and share your views with me. Your comments will help me continue to represent you and other Californians to the best of my ability. Be assured that I will keep your views in mind as the Senate consider s legislation on this or similar issues.
If you would like additional information about my work in the U.S. Senate, I invite you to visit my website, http://boxer.senate.gov . From this site, you can access my statements and press releases about current events and pending legislation, request copies of legislation and government reports, and receive detailed information about the many services that I am privileged to provide for my constituents. You may also wish to visit http://thomas.loc.gov to track current and past federal legislation.
Again, thank you for sharing your thoughts with me. I appreciate hearing from you.
Barbara Boxer
United States Senator
CONTACT:
EPA Press Office press@epa.gov
202-564-6794
FOR IMMEDIATE RELEASE March 10, 2011
Administrator Lisa P. Jackson, Testimony Before the U.S. House Committee on Agriculture
As prepared for delivery.
Chairman Lucas, Ranking Member Peterson and Members of this committee, thank you for inviting me to testify. I'm pleased to be here today.
I have great respect for the oversight role of Congress and believe that this ongoing dialogue is central to the commitment I have made to the American people to conduct EPA's business transparently and with accountability.
I also believe an important part of that commitment is to dispel certain myths about EPA's work and its impact on agriculture. These mischaracterizations are more than simple distractions; they prevent real dialogue to address our greatest problems. And so, today, I would like to spend a few minutes addressing some of them directly.
Let me begin, though, with one simple fact that I proudly embrace: farmers and ranchers are an essential part of our economy. They give us food, fiber, and fuel. The innovators in American agriculture deserve great credit for the significant steps they've taken to protect the environment while feeding millions of people.
With that recognition in mind, my direction to EPA has been to establish a consistent dialogue with the agriculture community, which is crucial to our work.
This is why I would like to take a moment today to address some of the mischaracterizations that have been, at times, unaddressed, or that need to be addressed again. As I'm sure you would agree, Mr. Chairman, facts matter and we all have a responsibility to ensure that the American people have facts and the truth in front of them, particularly when fictions are pushed by special interests with an investment in the outcome.
Let me give you five examples:
One is the notion that EPA intends to regulate the emissions from cows – what is commonly referred to as a “Cow Tax.” This myth was started in 2008 by a lobbyist and –quickly de-bunked by the non-partisan, independent group fact-check.org – it still lives on. The truth is - EPA is proposing to reduce greenhouse gas emissions in a responsible, careful manner and we have even exempted agricultural sources from regulation.
Another mischaracterization is the claim that EPA is attempting to expand regulation of dust from farms. We have no plans to do so, but let me be clear, the Clean Air Act passed by Congress mandates that the Agency routinely review the science of various pollutants, including Particulate Matter, which is directly responsible for heart attacks and premature deaths. EPA's independent science panel is currently reviewing that science, and at my direction EPA staff is conducting meetings to engage with and listen to farmers and ranchers well before we even propose any rule.
Another example involves spray drift. While no one supports pesticides wafting into our schools and communities, EPA does not support a “no-spray drift policy.” EPA has been on the record numerous times saying this, but the incorrect belief that EPA desires to regulate all spray drift persists. We have reached out to National Association of State Departments of Agriculture and other key stakeholders. Working with them, we have been able to identify critical issues and we will continue our efforts to resolve them.
Yet another mischaracterization is the false notion that EPA is planning on mandating Federal numeric nutrient limits on various States. Again, let me be clear: EPA is not working on any federal numeric nutrient limits. We will soon be releasing a framework memo to our regional offices that makes it clear that addressing nitrogen and phosphorus pollution – which is a major problem - is best addressed by the States, through numerous tools, including proven conservation practices. The case of Florida is unique – the last Administration made a determination that federal numeric nutrient standards were necessary in Florida, requiring EPA to develop such standards.
And finally is the notion that EPA intends to treat spilled milk in the same way as spilled oil. This is simply incorrect. Rather, EPA has proposed, and is on the verge of finalizing an exemption for milk and dairy containers. This exemption needed to be finalized because the law passed by Congress was written broadly enough to cover milk containers. It was our work with the dairy industry that prompted EPA to develop an exemption and make sure the standards of the law are met in a commonsense way. All of EPA's actions have been to exempt these containers. And we expect this to become final very shortly.
Contrary to the myths is the reality I spoke of earlier. EPA is in close consultation with America's farmers and ranchers. We have listened to their concerns and made them a part of the work we do. Let me give just one example that is very important to this committee.
When EPA proposed higher renewable fuels production mandates under RFS 2, we heard – again through extensive public comments and direct conversations – the ethanol industry's concerns with the analysis of greenhouse gas impacts, which EPA was conducting under a requirement from Congress. We addressed their concerns, and we now have a rule that encourages vast innovation, respects the needs of agricultural communities, and is expected to create jobs and increase farmers' incomes by $13 billion annually by 2022.
Mr. Chairman, everyone in this room, has the same desire – to have safe water, air and land for our children – and to do so in a way that maintains our economic strengths. EPA will continue to work with this committee, as well as our partners in the States and the agricultural community to achieve the goals we have set together, and to serve the values we all share. Thank you. CONTACT:
EPA Press Office press@epa.gov
202-564-6794
FOR IMMEDIATE RELEASE
March 10, 2011
TOMORROW: EPA Administrator to Testify Before House Energy and Commerce Committee's Energy & Power and Environment & Economy Subcommittees
WASHINGTON – U.S. EPA Administrator Lisa P. Jackson will testify before the House Energy and Commerce Committee's Energy & Power and Environment & Economy Subcommittees on the President's Fiscal Year 2012 budget proposal for EPA.
Hearing details:
WHO: EPA Administrator Lisa P. Jackson
WHAT: Testifying before the House Energy and Commerce Committee Energy & Power and Environment & Economy Subcommittees
WHEN: 10:00 a.m., Friday, March 11, 2011
WHERE: 2123 Rayburn House Office Building, Washington, D.C.
The House Ag Committee held a hearing Wednesday to mark up H.R. 872, the Reducing Regulatory Burdens Act of 2011. Committee Chairman Collin Peterson says this legislation would relieve producers from a potentially costly regulatory burden that would do little, if anything, to protect the environment. In 2006 the 6th Circuit Court of Appeals overturned an EPA rule which specifically exempted permitting of certain pesticide applications under the Clean Water Act. The court's decision pre-empts the Federal Insecticide, Fungicide and Rodenticide Act by the Clean Water Act. Peterson said this was not the intent of Congress.
The proposed legislation would restore congressional intent and address the court's ruling by amending both the Clean Water Act and FIFRA to prohibit permits for pesticide application when pesticides are applied consistent with FIFRA. Peterson said, - Clean Water Act permitting requirements would place a massive burden and responsibility on the states and the EPA. The last thing we need is more regulation coming from the EPA in this area.
According to Mr. Peterson, - for too long we've watched organizations use the courts to twist laws against American farmers and agricultural production. If we don't work together to find a solution, producers will likely continue being told how to operate by lawyers and judges who don't understand agriculture. The courts are not the place to decide agriculture policy. This legislation is a step in the right direction to address this problem.
A House subcommittee has voted to deny funds for the EPA to regulate greenhouse gases, in a Thursday session that pitted Republicans against Democrats in a heated debate.
"This bill would block the Environmental Protection Agency's costly global warming regulatory agenda," said the bill's Republican sponsor, House Energy and Commerce Committee chairman Rep. Fred Upton, in prepared remarks.
Republicans said the EPA has overstepped its bounds and created rules that would kill jobs and encourage U.S. companies to shift work to China and other countries. Democrats accused Republicans of denying scientific findings on global warming and of stripping the EPA from its ability to protect public health.
The bill "codifies science denial," said Rep. Henry Waxman (D., Calif.), the ranking Democrat on the House energy committee.
According to Politico's Robin Bravender , the vote is "part of a broader Republican push to blame the White House and congressional Democrats for gas price spikes."
A similar bill is in the Senate. The Journal reports, "A collection of business trade groups, including the oil industry's American Petroleum Institute and the U.S. Chamber of Commerce, applauded the legislation and welcomed the vote."
The full House Energy and Commerce Committee will take up the bill on Tuesday.
UPDATED: Energy Department Announces New Advance in Biofuel Technology
Highlights Opportunity to Reduce America's Oil Dependence and Create Jobs in Rural America
U.S. Energy Secretary Steven Chu today congratulated a team of researchers at the Department's BioEnergy Science Center who have achieved yet another advance in the drive toward next generation biofuels: using bacteria to convert plant matter directly into isobutanol, which can be burned in regular car engines with a heat value higher than ethanol and similar to gasoline. This research is part of a broad portfolio of work the Department is doing to reduce America's dependence on foreign oil and create new economic opportunities for rural America.
"Today's announcement is yet another sign of the rapid progress we are making in developing the next generation of biofuels that can help reduce our oil dependence," said Secretary Chu. "This is a perfect example of the promising opportunity we have to create a major new industry - one based on bio-material such as wheat and rice straw, corn stover, lumber wastes, and plants specifically developed for bio-fuel production that require far less fertilizer and other energy inputs. But we must continue with an aggressive research and development effort."
Secretary Chu added that: "America's oil dependence -- which leaves hardworking families at the mercy of global oil markets - won't be solved overnight. But the remarkable advance of science and biotechnology in the past decade puts us on the precipice of a revolution in biofuels. In fact, biotechnologies, and the biological sciences that provide the underlying foundation, are some of the most rapidly developing areas in science and technology today - and the United States is leading the way. In the coming years, we can expect dramatic breakthroughs that will allow us to produce the clean energy we need right here at home. We need to act aggressively to seize this opportunity and win the future."
BACKGROUND ON THE SCIENTIFIC ADVANCE ANNOUNCED TODAY
The work was conducted by researchers at the Department of Energy's BioEnergy Science Center (BESC), led by Oak Ridge National Laboratory. Using consolidated bioprocessing, a research team led by James Liao of the University of California at Los Angeles for the first time produced isobutanol directly from cellulose. The team's work, published online in Applied and Environmental Microbiology, represents across-the-board savings in processing costs and time, plus isobutanol is a higher grade of alcohol than ethanol.
"Unlike ethanol, isobutanol can be blended at any ratio with gasoline and should eliminate the need for dedicated infrastructure in tanks or vehicles," said Liao, chancellor's professor and vice chair of Chemical and Biomolecular Engineering at the UCLA Henry Samueli School of Engineering and Applied Science and a partner in BESC. "Plus, it may be possible to use isobutanol directly in current engines without modification."
WEBINAR: Earthquake Safety & Mitigation for Schools
A one-hour webinar for school officials, teachers, facility managers, and other local
stakeholders interested in learning how to reduce earthquake risks and take actions to
ensure school safety and continued operations. Information is based on FEMA 395:
Incremental Seismic Rehabilitation of School Buildings (K-12): Providing Protection to
People and Buildings, which is available for download at
http://www.fema.gov/library/viewRecord.do?id=1980
GENERAL INFORMATION:
Numerous school buildings located in multiple States and U.S. territories are vulnerable to
earthquake damage and losses. This includes potential:
Death and injury of students, teachers, and staff
Damage to or collapse of buildings
Damage and loss of furnishings, equipment, and building contents
Disruption of educational programs and school operations
And inability of the community to use schools as temporary shelters
At this webinar, you will learn the following:
How to assess and analyze your earthquake risks
How to develop an actionable plan to reduce and manage earthquake risks
How to initiate an earthquake risk reduction plan for existing school buildings that were
not designed and constructed to meet modern building codes
How to secure “non-structural” elements of the school facility
How to apply “incremental seismic rehabilitation” to protect buildings and ensure occupant
safety
Why “incremental seismic rehabilitation” is an affordable alternative for school safety
WHEN:
Thursday, January 20, 2011 at 3:00 pm EST
Thursday, February 17, 2011 at 3:00 pm EST
Thursday, March 17, 2011 at 3:00 pm EST
WHERE:
Online webinar via FEMA Adobe Connect & Conference Line. Information will be shared upon
successful registration.
REGISTRATION:
Registration is free. Please send your preferred date to participate, name, organization, address,
phone number and email address by fax at 650-593-2320, by email at atc@atcouncil.org, or by
visiting http://www.atcouncil.org/events.html.
SYSTEM REQUIREMENTS:
Email: Please add atcouncil.org to your safe list
Audio: Touch-tone telephone
Browser: Internet Explorer 6 or later, Firefox, Chrome, Safari, with JavaScript enabled
Internet: 56K or faster (high-speed recommended)
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March 09, 2011 Fed Issues Draft EIS for Solar Power
A significant milestone in the development of sources of solar energy on public land was reached with the publication of a draft solar programmatic environmental impact statement (PEIS) by the Department of the Interior (DOI) and Department of Energy (DOE).
DOE's role in the development of solar projects is to assist in advancement of cost-competitive technologies that encourage utility-scale solar generation.
The 90-day public comment period for the PEIS will commence once EPA publishes its notice of availability in the Federal Register .
BLM and DOE will also hold 14 public meetings on the PEIS beginning in Washington, D.C. on February 2, 2011.
Innovative technologies hold the key to cost-effective timely solutions that minimize adverse environmental effects. Many EPA programs and activities foster the development and use of innovative technologies.
The Health and Environmental Research Online (HERO) database provides an easy way to view the scientific literature behind EPA science assessments. The database includes more than 300,000 scientific articles from the peer-reviewed literature used by EPA to develop its Integrated Science Assessments (ISA) that feed into the NAAQS review. It also includes references and data from the Integrated Risk Information System (IRIS), a database that supports critical agency policymaking for chemical regulation.
A scientist's notebook is a career staple. Home to ideas, questions, drawings and data, it's a treasure trove of information about the scientific process. EPA's Science Notebook offers a similar view into science at EPA, featuring stories, scientist interviews and more.
EPA relies on sound science to safeguard both human health and the environment. The Agency conducts research on ways to prevent pollution, protect human health, and reduce risk.
Environmental Justice is the fair treatment and meaningful involvement of all people regardless of race, color, national origin, or income with respect to the development, implementation, and enforcement of environmental laws, regulations, and policies.
Private Landowners Granted Right to Challenge EPA's Clean Water Act “Impaired Waters” Listing Decisions
In a case of first impression, the Ninth Circuit recently held that a “perceived” decrease in value of private property following EPA's approval of a state's “impaired waters” listing under Section 303 of the Clean Water Act (CWA) is sufficient to establish the standing of a private plaintiff to challenge the agency's decision. The case, Barnum Timber Co. v. EPA , [1] gives private property owners adjacent to creeks, rivers and other waterbodies in the West a seat at the table in CWA listing decisions, a step that often occurs long before affirmative obligations are imposed on uses of the private properties through the total maximum daily load (TMDL) program.
Statutory Background to the CWA TMDL Program
CWA § 303(d) requires states to identify so-called “impaired waters,” where technology-based effluent limits and other pollution control requirements “are not stringent enough to implement any water quality standard.” [2] For these waters on the § 303(d) “list,” states must prepare TMDLs, which are calculations of the maximum “load” of a pollutant that a waterbody can receive from all sources, including point, nonpoint, and background sources, without exceeding the water quality standards for the pollutant. A “wasteload allocation” is the share of the loading capacity for a particular pollutant that comes from existing and future “point” sources that are subject to a National Pollutant Discharge Elimination System (NPDES) permit under CWA § 402. [3] A “load allocation” is the share of the loading capacity attributable to nonpoint sources, such as runoff. Generally, the load and wasteload allocations comprise the TMDL. [4]
States must submit impaired waters listings and draft TMDLs to EPA for approval, and then incorporate the TMDLs into their continuing planning processes and water quality management plans. [5] If EPA approves the listing and the TMDLs, the state must incorporate the TMDLs into the current plan for the state's waters under § 303(e). If EPA disapproves the listing and the TMDL, EPA must, within 30 days of disapproval, identify impaired waters and establish loads for those waters as necessary to implement the applicable water quality standards, which the state must incorporate into the § 303(e) plans. Neither the CWA nor EPA's implementing regulations prescribe the method whereby a state must allocate an impaired water body's loading capacity between existing or future sources. EPA regulations allow tradeoffs between point and nonpoint sources, where implementation of best management practices or nonpoint source controls can reduce the load allocation and allow for a larger wasteload allocation for point sources. [6]
Factual and Procedural Background to Barnum v. EPA
The plaintiff in Barnum v. EPA , Barnum Timber Company (Barnum), owns and operates nonindustrial timberlands and rangelands in the Redwood Creek watershed near Eureka, California. In 1992, California listed Redwood Creek as impaired by sediment on California's list of CWA § 303(d) impaired waters. When California reevaluated its impaired waters list in 2002, as required under CWA § 303(d)(2), California retained Redwood Creek as an impaired water due to sediment, but also due to temperature impairments. California later retained Redwood Creek as impaired by both sediment and temperature in 2006. EPA approved California's updated § 303(d) list in 2006.
Barnum thereafter sued EPA, alleging that EPA's decision to retain Redwood Creek on the § 303(d) list of impaired water bodies was arbitrary and capricious under the federal Administrative Procedure Act, because the decision was not supported by substantial evidence of the impairment. Barnum alleged that it suffered an “injury” because (1) it had “suffered extra costs to satisfy land use restrictions” triggered by the listing and (2) its “property values decrease[d].” [7] Barnum sought a declaration of the erroneous listing and injunctive relief.
EPA moved to dismiss the complaint for lack of standing under Article III of the U.S. Constitution. The district court evaluated Barnum's alleged standing under the Supreme Court's well-established three-step test:
(1) the plaintiff must have suffered an “injury in fact” – an invasion of a legally protected interest which is (a) concrete and particularized, and (b) actual or imminent, not conjectural or hypothetical; (2) there must be a causal connection between the injury and the conduct complained of; and (3) it must be “likely,” as opposed to merely “speculative,” that the injury will be redressed by a favorable decision. [8]
In September 2008, the district court granted EPA's motion to dismiss without prejudice, finding that complaint “offered only conclusory and non-specific claims of injury” regarding the allegedly decreased property values and failed to establish that the alleged injuries were “caused by or are in any way connected to the EPA's 2006 approval of California's listing of Redwood Creek.” [9] According to the district court, the alleged injury was caused by the restrictions California placed on the use of the property. These restrictions were not directly traceable to EPA's approval of the § 303(d) listing, according to the district court, because a TMDL had yet to be developed for Redwood Creek and the regulations bore no discernible relationship to EPA's challenged action. The district court also found that Barnum failed to support its argument that the reduction of property values stemmed from the listing itself.
Barnum thereafter moved to amend its complaint by including declarations of California forestry experts explaining that the property value of Barnum's land had decreased because of the Redwood Creek listing. These experts opined that the financial impact of the listing could not be quantified, but that “the Section 303(d) listing of a water body reduces the value of nearby properties because the public perceives that onerous regulations will be forthcoming.” [10] The district court denied Barnum's motion to amend, holding that “the proposed amendment would not cure the standing problem,” and dismissed Barnum's complaint. [11]
The Ninth Circuit's Majority Decision
In a 2-1 decision, the Ninth Circuit reversed the district court's dismissal of Barnum's complaint finding that the amended complaint adequately alleged all three elements of standing. Although EPA did not dispute Barnum's allegation that it suffered an injury in fact, the court determined that Barnum satisfied this element at the pleading stage by presenting the declarations of forestry experts testifying to the property value reductions.
Under the second “causal connection” prong, the court held that Barnum's reduced property values were causally connected to EPA's retention of Redwood Creek as an impaired water body, because the listing “fe[d] the public's and the market's perception that Barnum's timber operations are restricted by the listing.” [12] The expert declarations supported this finding, according to the court, because the public has access to impaired waters lists and perceives that a listed water will be subject to additional and onerous regulation, even where such regulation has not actually occurred. These allegations of “specific facts plausibly explaining causality and supported by competent declarations,” in the court's view, were more than sufficient to meet Barnum's “burden to demonstrate the causal connection element of Article III standing at the pleading stage.” [13] The court declined to evaluate Barnum's argument that its alleged injury was causally connected to the application of state forestry practice rules that were themselves triggered by EPA's approval of the listing.
The court also held that the alleged injury could be redressed by the current action, because, if Barnum succeeds on the merits of showing that EPA's listing of Redwood Creek was arbitrary and capricious, the district court could grant relief by removing the waterbody from the § 303(d) list. This removal, according to the court, would directly remedy the alleged diminution in Barnum's property values. The court distinguished a 1996 Ninth Circuit standing decision that the district court relied on in rejecting Barnum's claim, San Diego County Gun Rights Committee v. Reno , [14] which held that the plaintiffs lacked standing to challenge a federal gun control law based on the assertion that the law caused the price of certain guns to increase. In that case, the plaintiffs' alleged injury – higher gun prices – related to an allegedly increased price across the entire market and was not directly connected to federal – as opposed to state – gun control laws. Here, according to the court, Barnum properly pled a specific injury to its property – as opposed to a market as a whole – that was sufficiently explicit to ensure that relief would not be merely speculative. Moreover, the court rejected the argument that Barnum's alleged injury was caused solely by a third party – California – because EPA's action will lead to regulatory restrictions on Redwood Creek, Barnum's property values will allegedly decrease based on these restrictions, and a successful challenge to EPA's action could reduce or eliminate those restrictions. The court vacated the district court's judgment and remanded.
Dissent
In a lengthy dissent, Judge Gwin opined that Barnum's claimed injuries were conjectural and hypothetical, with no causal connection between EPA's acts and the speculative injuries claimed, and that even a successful action against EPA would not necessarily redress this speculative injury. The dissenting opinion focused on the dual role of EPA and the states in the TMDL program specifically, but also with respect to point and nonpoint source control generally under the CWA. According to Judge Gwin, the states – and not EPA – are charged with carrying out nonpoint source controls, and are under no compulsion to develop or enforce such controls through the TMDL program or otherwise. As a result, in Judge Gwin's view, “nonpoint loading limitations are only enforced under state law,” and the “majority opinion incorrectly suggests that the EPA, and not California, controls nonpoint water standards.” [15]
With this perception of the CWA's structure as a backdrop, the dissent rejected all three elements of the standing analysis in this case. Barnum's alleged injury is “highly speculative,” according to the dissent, “and would depend upon the occurrence of a long chain of future events,” such as Redwood Creek remaining on the impaired waters listing, California developing a temperature and sediment TMDL that affects timber, and California adopting and enforcing a plan for Redwood Creek in a way that actually impacts Barnum. [16] Because Barnum's alleged injury is predicated on all of these contingent events occurring, the dissent continued, general assertions of public perception are too speculative and uncertain to satisfy an injury in fact. For many of the same reasons, the dissent disputed that Barnum's alleged property value reduction was necessarily caused by EPA: EPA's approval of the listing did not coerce California to design and enforce a TMDL or other methods to control sediment and temperature loadings to the creek that would impact Barnum's property. Although California elected to tie its forestry practice regulations to § 303(d) listings, Judge Gwin opined, California's decision regarding how best to regulate nonpoint source discharges to the waterbody are California's alone – and any alleged injury to Barnum's property values are caused not by EPA's past actions, but by California's potential future actions. Finally, according to the dissent, removal of Redwood Creek from the § 303(d) list would not redress Barnum's claimed injury, because it would not dictate how or whether California would require Barnum to implement measures to improve water quality in the watershed.
Resolution of the state law defense issue left open by Textron
The CAFC also resolved a jurisdictional question left open by the Supreme Court in Textron Lycoming Reciprocating Engine Div., AVCO Corp. v. Auto. Workers , 523 U.S. 653 (1998): "whether federal courts have jurisdiction over a declaratory judgment action where there is a federal cause of action but only a state law defense." Slip Op. at 9. While a longstanding rule holds that subject matter jurisdiction exists over declaratory judgment actions that are based on a claim of patent infringement, Cooper contended that it did not apply because the only defense raised by ABB in the district court was its state law license defense. Although discussed in Justice Breyer's concurrence, the Supreme Court explicitly left the issue open in Textron , and it remained unresolved by subsequent courts of appeals.
Addressing the issue as one of first impression, the CAFC reached the same conclusion as Justice Breyer:
[W]e conclude that federal question jurisdiction exists here. The general rule, articulated repeatedly by the Supreme Court, is that declaratory judgment jurisdiction exists where the defendant's coercive action arises under federal law. See Franchise Tax Bd. , 463 U.S. at 16, 19; Wycoff , 344 U.S. at 248; see also Speedco , 853 F.2d at 912. We see no reason to depart from that general principle where the defense is non-federal in nature.
Slip Op. at 11-12. In short, the subject matter inquiry for a declaratory judgment action focuses on the defendant's hypothetical well-pleaded Complaint, and thus the defenses raised by the declaratory judgment plaintiff are irrelevant to the inquiry:
According to Franchise Tax Board , then, federal jurisdiction in this type of case depends on the federal character of the hypothetical infringement suit and not the federal character of the invalidity defense. Indeed, “it now seems settled that [a party threatened with an infringement suit] can sue for a declaratory judgment of invalidity or noninfringement [because] the federal nature of the claims appears on the complaint . . . and the precise issue could have been litigated in federal court in a coercive action brought by [the patentee].” 10B Wright, Miller & Kane, Federal Practice and Procedure § 2767, at 650–51 (3d ed. 1998) (emphasis added)).
Slip Op. at 12.
How Are Sites Removed From the NPL? EPA may delete sites from the NPL where no further response is appropriate under Superfund, as explained in the NCP at 40 CFR 300.425(e). This section also provides that EPA shall consult with states on proposed deletions and shall consider whether any of the following criteria have been met: (i) Responsible parties or other persons have implemented all appropriate response actions required; (ii) All appropriate Superfund-financed response has been implemented and no further response action is required; or (iii) The remedial investigation has shown the release poses no significant threat to public health or the environment, and taking of remedial measures is not appropriate.
H. May EPA Delete Portions of Sites From the NPL as They Are Cleaned Up? In November 1995, EPA initiated a new policy to delete portions of NPL sites where cleanup is complete (60 FR 55465, November 1, 1995). Total site cleanup may take many years, while portions of the site may have been cleaned up and made available for productive use. I. What Is the Construction Completion List (CCL)? EPA also has developed an NPL construction completion list (“CCL”) to simplify its system of categorizing sites and to better communicate the successful completion of cleanup activities (58 FR 12142, March 2, 1993). Inclusion of a site on the CCL has no legal significance.
Sites qualify for the CCL when: (1) any necessary physical construction is complete, whether or not final cleanup levels or other requirements have been achieved; (2) EPA has determined that the response action should be limited to measures that do not involve construction (e.g., institutional controls); or (3) the site qualifies for deletion from the NPL. For the most up-to-date information on the CCL, see EPA’s Internet site at http://www.epa.gov/superfund/cleanup/ccl.htm. J. What Is the Sitewide Ready for Anticipated Use Measure?
The Sitewide Ready for Anticipated Use measure represents important Superfund accomplishments and the measure reflects the high priority EPA places on considering anticipated future land use as part of our remedy selection process. See Guidance for Implementing the Sitewide Ready-for-Reuse Measure, May 24, 2006, OSWER 9365.0-36. This measure applies to final and deleted sites where construction is complete, all cleanup goals have been achieved, and all institutional or other controls are in place. EPA has been successful on many occasions in carrying out remedial actions that ensure protectiveness of human health and the environment for current and future land users, in a manner that allows contaminated properties to be restored to environmental and economic vitality. For further information, please go to http://www.epa.gov/superfund/programs/recycle/tools/index.html.
List of Subjects in 40 CFR Part 300 Environmental protection, Air pollution control, Chemicals, Hazardous substances, Hazardous waste, Intergovernmental relations, Natural resources, Oil pollution, Penalties, Reporting and recordkeeping requirements, Superfund, Water pollution control, Water supply. Authority: 33 U.S.C. 1321(c)(2); 42 U.S.C. 9601-9657; E.O. 12777, 56 FR 54757, 3 CFR, 1991 Comp., p. 351; E.O. 12580, 52 FR 2923, 3 CFR, 1987 Comp., p. 193.
BILLING CODE: 6560-50-P
Many federal employees can now earn substantially more than judges.
Thousands of federal employees (i.e., professional positions in the executive branch and banking agencies) can now receive salaries at or above the salary of district judges (currently $174,000).
Many federal employees can now receive total compensation exceeding $200,000 annually.
Judicial salaries should be increased significantly, and there is precedent to do so.
1989: Ethics Reform Act effected net increases of 35-40% over two-year period.
1969: Quadrennial Commission established varying salary increases (e.g., 33% for district court judges, up to 56% for the Chief Justice).
The Volcker Commission declared that "Judicial salaries are the most egregious example of the failure of federal compensation policies."
In January 2003, the National Commission on the Public Service (the "Volcker Commission") found "that the lag in judicial salaries has gone on too long, and the potential for the diminished quality in American jurisprudence is now too large." (Volcker Commission Report)
The Volcker Commission recommended that Congress' "first priority . . . should be an immediate and substantial increase in judicial salaries."
Low federal judicial salaries threaten the independence of the Third Branch.
Chief Justice Roberts has stated that:
"Inadequate compensation directly threatens the viability of life tenure, and if tenure in office is made uncertain, the strength and independence judges need to uphold the rule of law-even when it is unpopular to do so-will be seriously eroded."
"If judicial appointment ceases to be the capstone of a distinguished career and instead becomes a stepping stone to a lucrative position in private practice, the Framers' goal of a truly independent judiciary will be placed in serious jeopardy."
Good, experienced judges are leaving the bench.
Since 1990, 123 Article III judges have left the bench through resignation or retirement.
Many of the judges who have resigned or retired in recent years have noted that financial considerations were a big factor in their decision to leave the bench. Several have joined law firms or private arbitration/mediation groups, earning several times more than their previous federal salaries.
Other judges have left to become corporate counsels, earning average compensation of more than $700,000 in salary and bonuses, plus the possibility of stock options.
Even law clerks who join major law firms as first-year associates can earn more in their first year than any federal judge earns ($135,000 to $165,000 base salary, plus substantial signing bonuses and other payments).
The Judicial Conference supports increases in compensation for senior officials in all three branches of government.
The Volcker Commission declared that "Congress should grant an immediate and significant increase in judicial, executive, and legislative salaries to ensure a reasonable relationship to other professional opportunities."
The Judicial Conference has consistently supported efforts to enact immediate increases in pay for judges, Members of Congress and senior executive branch officials, as well as other related proposals to improve the overall compensation system for high-level government officials.
Virginia Statute for Religious Freedom (1786)
Thomas Jefferson
Jefferson drafted the following measure, but it was Madison who secured its adoption by the Virginia legislature in 1786. It is still part of modern Virginia's constitution, and it has not only been copied by other states but was also the basis for the Religion Clauses in the Constitution's Bill of Rights. Both men considered this bill one of the great achievements of their lives, and Jefferson directed that on his tombstone he should not be remembered as president of the United States or for any of the other high offices he held, but as the author of the Declaration of Independence and the Virginia Statute for Religious Freedom, and as the founder of the University of Virginia.
Whereas Almighty God hath created the mind free; that all attempts to influence it by temporal punishments or burthens, or by civil incapacitations, tend only to beget habits of hypocrisy and meanness, and are a departure from the plan of the Holy author of our religion, who being Lord both of body and mind, yet chose not to propagate it by coercions on either, as it was in his Almighty power to do; that the impious presumption of legislators and rulers, civil as well as ecclesiastical, who being themselves but fallible and uninspired men, have assumed dominion over the faith of others, setting up their own opinions and modes of thinking as the only true and infallible, and as such endeavouring to impose them on others, hath established and maintained false religions over the greatest part of the world, and through all time; that to compel a man to furnish contributions of money for the propagation of opinions which he disbelieves, is sinful and tyrannical; that even the forcing him to support this or that teacher of his own religious persuasion, is depriving him of the comfortable liberty of giving his contributions to the particular pastor, whose morals he would make his pattern, and whose powers he feels most persuasive to righteousness, and is withdrawing from the ministry those temporary rewards, which proceeding from an approbation of their personal conduct, are an additional incitement to earnest and unremitting labours for the instruction of mankind; that our civil rights have no dependence on our religious opinions, any more than our opinions in physics or geometry; that therefore the proscribing any citizen as unworthy the public confidence by laying upon him an incapacity of being called to offices of trust and emolument, unless he profess or renounce this or that religious opinion, is depriving him injuriously of those privileges and advantages to which in common with his fellow-citizens he has a natural right; that it tends only to corrupt the principles of that religion it is meant to encourage, by bribing with a monopoly of worldly honours and emoluments, those who will externally profess and conform to it; that though indeed these are criminal who do not withstand such temptation, yet neither are those innocent who lay the bait in their way; that to suffer the civil magistrate to intrude his powers into the field of opinion, and to restrain the profession or propagation of principles on supposition of their ill tendency, is a dangerous fallacy, which at once destroys all religious liberty, because he being of course judge of that tendency will make his opinions the rule of judgment, and approve or condemn the sentiments of others only as they shall square with or differ from his own; that it is time enough for the rightful purposes of civil government, for its officers to interfere when principles break out into overt acts against peace and good order; and finally, that truth is great and will prevail if left to herself, that she is the proper and sufficient antagonist to error, and has nothing to fear from the conflict, unless by human interposition disarmed of her natural weapons, free argument and debate, errors ceasing to be dangerous when it is permitted freely to contradict them:
Be it enacted by the General Assembly , That no man shall be compelled to frequent or support any religious worship, place, or ministry whatsoever, nor shall be enforced, restrained, molested, or burthened in his body or goods, nor shall otherwise suffer on account of his religious opinions or belief; but that all men shall be free to profess, and by argument to maintain, their opinion in matters of religion, and that the same shall in no wise diminish enlarge, or affect their civil capacities.
And though we well know that this assembly elected by the people for the ordinary purposes of legislation only, have no power to restrain the acts of succeeding assemblies, constituted with powers equal to our own, and that therefore to declare this act to be irrevocable would be of no effect in law; yet we are free to declare, and do declare, that the rights hereby asserted are of the natural rights of mankind, and that if any act shall be hereafter passed to repeal the present, or to narrow its operation, such act shall be an infringement of natural right.
Source: W.W. Hening, ed., Statutes at Large of Virginia , vol. 12 (1823): 84-86.
For further reading: William Lee Miller, The First Liberty: Religion and the American Republic (1985); Leonard W. Levy, The Establishment Clause and the First Amendment (1986); Merrill D. Peterson and Robert C. Vaughn, eds., The Virginia Statute for Religious Freedom: Its Evolution and Consequences in American History (1988).
The Treasury Department has recovered 70% of the money distributed under the $700-billion bailout fund after American International Group paid back $6.9 billion of the money it owed.
AIG made the repayment Tuesday after selling its holdings in MetLife last week. About $59 billion in Troubled Asset Relief Program money still is invested in AIG.
AIG received about $125 billion in a complex, multi-step bailout from the Treasury and Federal Reserve starting in the fall of 2008. The government owns 92% of AIG after a stock-conversion deal completed in January that was part of an effort to recapitalize the insurance company and unwind the federal stake.
The Fed has about $39 billion invested in AIG. The Congressional Budget Office estimated in November that the government would lose $14 billion on the AIG bailout
American International Group Inc., once hobbled by its bets on the mortgage market, is trying to buy back a large portfolio of subprime mortgage bonds from the Federal Reserve Bank of New York, which acquired the securities as part of the insurer's massive bailout in 2008.
AIG on Thursday offered to pay $15.7 billion for all the securities in a company called Maiden Lane II LLC, the insurer said in a regulatory filing. The company is hoping to use cash from its insurance businesses, mainly its life-insurance units, to buy the mortgage bonds, which are yielding relatively attractive returns in ...
Posted On: Mar. 09, 2011 2:15 PM CENTRAL |Sonja Ryst
NEW YORK—Lawyers for former American International Group Inc. Chairman and CEO Maurice R. Greenberg and Chief Financial Officer Howard I. Smith are seeking to remove the presiding judge in a civil case against them, arguing that the judge is biased.
The case, which is scheduled to go to trial in May, stems from former New York Attorney General Eliot Spitzer's 2005 lawsuit arising out of an investigation into the insurer's accounting practices. After AIG agreed the next year to pay $1.6 billion in damages and penalties, some allegations in the case were dropped.
But prosecutors pushed ahead with charges that Messrs. Greenberg and Smith had roles in the alleged improper use of a Barbados-based shell company, Capco Reinsurance Co. Ltd., and in inflating AIG's reserves using a sham finite insurance deal with General Re Corp.
In October, Justice Charles E. Ramos ruled in a summary judgment that the executives were liable for the Capco fraud, but he also said the question of how much they owe in damages should be resolved at a separate hearing. In addition, he allowed for a trial on the Gen Re matter.
The defense is appealing the Capco ruling.
But in their motions submitted to the judge on Wednesday, defense lawyers argued that Judge Ramos should recuse himself because of bias. For example, they cited comments the judge made expressing premature conclusions, such as his describing the New York attorney general's case as “devastating,” even though the defense said it is based on “overwhelmingly” inadmissible evidence. The defense also argues that the court improperly relied on findings from the trial of former Gen Re CEO Ronald Ferguson and other executives, whose criminal convictions in connection with the Gen Re-AIG deal are being appealed.
Messrs. Greenberg and Smith also have requested a jury trial, but prosecutors asked that the judge decide the case. However, the “mere possibility” that Judge Ramos might be responsible for evaluating the facts of Messrs. Greenberg and Smith's case makes his removal “even more critical,” defense lawyers said.
David Ellenhorn, senior trial counsel in New York Attorney General Eric Schneiderman's office, noted in court documents that the defense never said the court was biased during earlier motions and hearings in a case that has been pending for nearly six years.
In addition, he said the defense is trying to delay the case and noted that the court “bent over backwards to avoid entering a decision holding defendants personally liable for the Gen Re matter even though there was…indeed devastating evidence.”
Senator Boxer Begins Work on Water Resources Development Act
The FundBook, a free monthly publication that empowers cities and counties to pursue an increasing array of federal funding opportunities to meet their capital needs. You can read more about funding opportunities here.
Last month, Senator Barbara Boxer, Chairman of the Senate Committee on Environment and Public Works, announced that her Committee will soon begin assembling their version of the next Water Resources Development Act (WRDA). This legislation, which is supposed to be reauthorized every two years, authorizes the Army Corps of Engineers to construct critical flood protection, navigation, and ecosystem restoration projects nationwide.
In a bipartisan letter to their Senate colleagues , Boxer and Senator Inhofe, the Ranking Committee Member, asked that each office submit their highest priority water infrastructure projects to the Committee for consideration no later than March 28th. The Senators' letter indicates that the Committee is serious about moving a bill out of committee and to the whole Senate for consideration sometime this spring.
WRDA is a unique piece of authorization legislation because Congress uses it to provide line-item authorizations for individual projects instead of authorizing a lump sum that enables the Corps to invest wherever it chooses. Once authorized, lawmakers can then appropriate funds for these activities in annual Energy and Water Development Appropriations spending bills. Depending on an authorized project's purpose, it is typically subject to cost-sharing requirements that range from 20 percent to 100 percent non-federal share.
It should be noted that not all water resources projects are eligible for inclusion in WRDA. Projects typically included in WRDA are those with completed Chief of Engineers reports, modifications to existing Corps of Engineers' projects, study authorizations for new projects, and miscellaneous projects consistent with the Corps' program and demonstrating a federal interest.
Interest in authorizing new studies and projects has likely prompted consideration of a new WRDA bill in the 112 th Congress, as the legislation provides much-needed momentum to help state and local governments commit funds to major water system restoration and flood control projects across the nation. Congress last passed that the last Water Resources Development Act in 2007 with overwhelming bipartisan support, overriding President Bush's veto. But lawmakers have been unable to a reauthorization since then.
Because it's difficult to assess when Congress will pass the next authorization bill, many cities and states have taken issues into their own hands instead of waiting for federal support, funding repairs and expansions through state and local bond referendums or with the support of innovative new public-private partnerships.
Boxer and Inhofe sent their joint letter last month despite the fact that the House and Senate agreed to a two-year earmark moratorium and President Barack Obama vowed to veto any bill with funding for the parochial projects. The letter, which doesn't mention the word earmark, states that: "Congress has a constitutional role to play in determining spending priorities for the Army Corps of Engineers Civil Works program. Without congressional input, the administration would be the sole voice in setting water resources priorities."
In a separate effort that could affect whether WRDA is successful moving forward, Inhofe teamed up with Senator John McCain this week to introduce a proposal that would exempt from an earmark ban those projects specifically authorized by Senate committees, that meet "funding eligibility criteria" established by the relevant committees, or that are created through a competitive-bidding and formula-based process. Under the proposal, earmarks could also be enacted with the support of 75 senators.
If you would like to submit a project request for WRDA, now is the time to get in contact with your two Senators' offices to express such an interest and acquire an application. While each Senate office utilizes its own form to gauge and rank project submissions, the following template is what each Member will have to submit to the Senate Committee on Environment and Public Works at the end of the month.
(a) Corrections Based on Clerical Mistakes; Oversights and Omissions.
The court may correct a clerical mistake or a mistake arising from oversight or omission whenever one is found in a judgment, order, or other part of the record. The court may do so on motion or on its own, with or without notice. But after an appeal has been docketed in the appellate court and while it is pending, such a mistake may be corrected only with the appellate court's leave.
(b) Grounds for Relief from a Final Judgment, Order, or Proceeding.
On motion and just terms, the court may relieve a party or its legal representative from a final judgment, order, or proceeding for the following reasons:
(1) mistake, inadvertence, surprise, or excusable neglect;
(2) newly discovered evidence that, with reasonable diligence, could not have been discovered in time to move for a new trial under Rule 59(b) ;
(3) fraud (whether previously called intrinsic or extrinsic), misrepresentation, or misconduct by an opposing party;
(4) the judgment is void;
(5) the judgment has been satisfied, released, or discharged; it is based on an earlier judgment that has been reversed or vacated; or applying it prospectively is no longer equitable; or
(6) any other reason that justifies relief.
(c) Timing and Effect of the Motion.
(1) Timing.
A motion under Rule 60(b) must be made within a reasonable time — and for reasons (1), (2), and (3) no more than a year after the entry of the judgment or order or the date of the proceeding.
(2) Effect on Finality.
The motion does not affect the judgment's finality or suspend its operation.
(d) Other Powers to Grant Relief.
This rule does not limit a court's power to:
(1) entertain an independent action to relieve a party from a judgment, order, or proceeding;
(2) grant relief under 28 U.S.C. § 1655 to a defendant who was not personally notified of the action; or
(3) set aside a judgment for fraud on the court.
(e) Bills and Writs Abolished.
The following are abolished: bills of review, bills in the nature of bills of review, and writs of coram nobis, coram vobis, and audita querela.
Karen Jurist, Region 9 (AZ, CA, HI, NV, AS, GU, MP), U.S. EPA, 75 Hawthorne Street, Mailcode SFD-9-1, San Francisco, CA 94105; 415/972-3219.
Rule 71.1 Condemning Real or Personal Property
(a) Applicability of Other Rules
These rules govern proceedings to condemn real and personal property by eminent domain, except as this rule provides otherwise.
(b) Joinder of Properties
The plaintiff may join separate pieces of property in a single action, no matter whether they are owned by the same persons or sought for the same use.
(c) Complaint.
(1) Caption.
The complaint must contain a caption as provided in Rule 10(a) . The plaintiff must, however, name as defendants both the property — designated generally by kind, quantity, and location — and at least one owner of some part of or interest in the property.
(2) Contents.
The complaint must contain a short and plain statement of the following:
(A) the authority for the taking;
(B) the uses for which the property is to be taken;
(C) a description sufficient to identify the property;
(D) the interests to be acquired; and
(E) for each piece of property, a designation of each defendant who has been joined as an owner or owner of an interest in it.
(3) Parties.
When the action commences, the plaintiff need join as defendants only those persons who have or claim an interest in the property and whose names are then known. But before any hearing on compensation, the plaintiff must add as defendants all those persons who have or claim an interest and whose names have become known or can be found by a reasonably diligent search of the records, considering both the property's character and value and the interests to be acquired. All others may be made defendants under the designation “Unknown Owners.”
(4) Procedure.
Notice must be served on all defendants as provided in Rule 71.1(d), whether they were named as defendants when the action commenced or were added later. A defendant may answer as provided in Rule 71.1(e). The court, meanwhile, may order any distribution of a deposit that the facts warrant.
(5) Filing; Additional Copies.
In addition to filing the complaint, the plaintiff must give the clerk at least one copy for the defendants' use and additional copies at the request of the clerk or a defendant.
(d) Process.
(1) Delivering Notice to the Clerk.
On filing a complaint, the plaintiff must promptly deliver to the clerk joint or several notices directed to the named defendants. When adding defendants, the plaintiff must deliver to the clerk additional notices directed to the new defendants.
(2) Contents of the Notice.
(A) Main Contents . Each notice must name the court, the title of the action, and the defendant to whom it is directed. It must describe the property sufficiently to identify it, but need not describe any property other than that to be taken from the named defendant. The notice must also state:
(i) that the action is to condemn property;
(ii) the interest to be taken;
(iii) the authority for the taking;
(iv) the uses for which the property is to be taken;
(v) that the defendant may serve an answer on the plaintiff's attorney within 21 days after being served with the notice;
(vi) that the failure to so serve an answer constitutes consent to the taking and to the court's authority to proceed with the action and fix the compensation; and
(vii) that a defendant who does not serve an answer may file a notice of appearance.
(B) Conclusion . The notice must conclude with the name, telephone number, and e-mail address of the plaintiff's attorney and an address within the district in which the action is brought where the attorney may be served.
(3) Serving the Notice.
(A) Personal Service . When a defendant whose address is known resides within the United States or a territory subject to the administrative or judicial jurisdiction of the United States, personal service of the notice (without a copy of the complaint) must be made in accordance with Rule 4 .
(B) Service by Publication .
(i) A defendant may be served by publication only when the plaintiff's attorney files a certificate stating that the attorney believes the defendant cannot be personally served, because after diligent inquiry within the state where the complaint is filed, the defendant's place of residence is still unknown or, if known, that it is beyond the territorial limits of personal service. Service is then made by publishing the notice — once a week for at least 3 successive weeks — in a newspaper published in the county where the property is located or, if there is no such newspaper, in a newspaper with general circulation where the property is located. Before the last publication, a copy of the notice must also be mailed to every defendant who cannot be personally served but whose place of residence is then known. Unknown owners may be served by publication in the same manner by a notice addressed to “Unknown Owners.”
(ii) Service by publication is complete on the date of the last publication. The plaintiff's attorney must prove publication and mailing by a certificate, attach a printed copy of the published notice, and mark on the copy the newspaper's name and the dates of publication.
(4) Effect of Delivery and Service.
Delivering the notice to the clerk and serving it have the same effect as serving a summons under Rule 4 .
(5) Amending the Notice; Proof of Service and Amending the Proof.
Rule 4(a) (2) governs amending the notice. Rule 4(l) governs proof of service and amending it.
(e) Appearance or Answer.
(1) Notice of Appearance.
A defendant that has no objection or defense to the taking of its property may serve a notice of appearance designating the property in which it claims an interest. The defendant must then be given notice of all later proceedings affecting the defendant.
(2) Answer.
A defendant that has an objection or defense to the taking must serve an answer within 21 days after being served with the notice. The answer must:
(A) identify the property in which the defendant claims an interest;
(B) state the nature and extent of the interest; and
(C) state all the defendant's objections and defenses to the taking.
(3) Waiver of Other Objections and Defenses; Evidence on Compensation.
A defendant waives all objections and defenses not stated in its answer. No other pleading or motion asserting an additional objection or defense is allowed. But at the trial on compensation, a defendant — whether or not it has previously appeared or answered — may present evidence on the amount of compensation to be paid and may share in the award.
(f) Amending Pleadings.
Without leave of court, the plaintiff may — as often as it wants — amend the complaint at any time before the trial on compensation. But no amendment may be made if it would result in a dismissal inconsistent with Rule 71.1(i)(1) or (2). The plaintiff need not serve a copy of an amendment, but must serve notice of the filing, as provided in Rule 5(b) , on every affected party who has appeared and, as provided in Rule 71.1(d), on every affected party who has not appeared. In addition, the plaintiff must give the clerk at least one copy of each amendment for the defendants' use, and additional copies at the request of the clerk or a defendant. A defendant may appear or answer in the time and manner and with the same effect as provided in Rule 71.1(e).
(g) Substituting Parties.
If a defendant dies, becomes incompetent, or transfers an interest after being joined, the court may, on motion and notice of hearing, order that the proper party be substituted. Service of the motion and notice on a nonparty must be made as provided in Rule 71.1(d)(3).
(h) Trial of the Issues.
(1) Issues Other Than Compensation; Compensation.
In an action involving eminent domain under federal law, the court tries all issues, including compensation, except when compensation must be determined:
(A) by any tribunal specially constituted by a federal statute to determine compensation; or
(B) if there is no such tribunal, by a jury when a party demands one within the time to answer or within any additional time the court sets, unless the court appoints a commission.
(2) Appointing a Commission; Commission's Powers and Report.
(A) Reasons for Appointing. If a party has demanded a jury, the court may instead appoint a three-person commission to determine compensation because of the character, location, or quantity of the property to be condemned or for other just reasons.
(B) Alternate Commissioners. The court may appoint up to two additional persons to serve as alternate commissioners to hear the case and replace commissioners who, before a decision is filed, the court finds unable or disqualified to perform their duties. Once the commission renders its final decision, the court must discharge any alternate who has not replaced a commissioner.
(C) Examining the Prospective Commissioners. Before making its appointments, the court must advise the parties of the identity and qualifications of each prospective commissioner and alternate, and may permit the parties to examine them. The parties may not suggest appointees, but for good cause may object to a prospective commissioner or alternate.
(D) Commission's Powers and Report. A commission has the powers of a master under Rule 53(c) . Its action and report are determined by a majority. Rule 53(d) , (e) , and (f) apply to its action and report.
(i) Dismissal of the Action or a Defendant.
(1) Dismissing the Action.
(A) By the Plaintiff . If no compensation hearing on a piece of property has begun, and if the plaintiff has not acquired title or a lesser interest or taken possession, the plaintiff may, without a court order, dismiss the action as to that property by filing a notice of dismissal briefly describing the property.
(B) By Stipulation . Before a judgment is entered vesting the plaintiff with title or a lesser interest in or possession of property, the plaintiff and affected defendants may, without a court order, dismiss the action in whole or in part by filing a stipulation of dismissal. And if the parties so stipulate, the court may vacate a judgment already entered.
(C) By Court Order . At any time before compensation has been determined and paid, the court may, after a motion and hearing, dismiss the action as to a piece of property. But if the plaintiff has already taken title, a lesser interest, or possession as to any part of it, the court must award compensation for the title, lesser interest, or possession taken.
(2) Dismissing a Defendant.
The court may at any time dismiss a defendant who was unnecessarily or improperly joined.
(3) Effect.
A dismissal is without prejudice unless otherwise stated in the notice, stipulation, or court order.
(j) Deposit and Its Distribution.
(1) Deposit.
The plaintiff must deposit with the court any money required by law as a condition to the exercise of eminent domain and may make a deposit when allowed by statute.
(2) Distribution; Adjusting Distribution.
After a deposit, the court and attorneys must expedite the proceedings so as to distribute the deposit and to determine and pay compensation. If the compensation finally awarded to a defendant exceeds the amount distributed to that defendant, the court must enter judgment against the plaintiff for the deficiency. If the compensation awarded to a defendant is less than the amount distributed to that defendant, the court must enter judgment against that defendant for the overpayment.
(k) Condemnation Under a State's Power of Eminent Domain.
This rule governs an action involving eminent domain under state law. But if state law provides for trying an issue by jury — or for trying the issue of compensation by jury or commission or both — that law governs.
What are the requirements for the third party defense or innocent landowner defense?
CERCLA § 107(b)(3) provides a “third party” affirmative defense to CERCLA liability for any owner that can prove, by the preponderance of the evidence, that the contamination was caused solely by the act or omission of a third party whose act or omission did not occur “in connection with a contractual relationship.” Moreover, an entity asserting the CERCLA § 107(b)(3) defense must show that: a) it exercised due care with respect to the contamination; and b) it took precautions against foreseeable acts or omissions, and the consequences thereof by the third party that caused the contamination.
Rule 34.
Producing Documents, Electronically Stored Information, and Tangible Things, or Entering onto Land, for Inspection and Other Purposes
(a) In General.
A party may serve on any other party a request within the scope of Rule 26(b) :
(1) to produce and permit the requesting party or its representative to inspect, copy, test, or sample the following items in the responding party's possession, custody, or control:
(A) any designated documents or electronically stored information — including writings, drawings, graphs, charts, photographs, sound recordings, images, and other data or data compilations — stored in any medium from which information can be obtained either directly or, if necessary, after translation by the responding party into a reasonably usable form; or
(B) any designated tangible things; or
(2) to permit entry onto designated land or other property possessed or controlled by the responding party, so that the requesting party may inspect, measure, survey, photograph, test, or sample the property or any designated object or operation on it.
(b) Procedure.
(1) Contents of the Request.
The request:
(A) must describe with reasonable particularity each item or category of items to be inspected;
(B) must specify a reasonable time, place, and manner for the inspection and for performing the related acts; and
(C) may specify the form or forms in which electronically stored information is to be produced.
(2) Responses and Objections.
(A) Time to Respond . The party to whom the request is directed must respond in writing within 30 days after being served. A shorter or longer time may be stipulated to under Rule 29 or be ordered by the court.
(B) Responding to Each Item . For each item or category, the response must either state that inspection and related activities will be permitted as requested or state an objection to the request, including the reasons.
(C) Objections . An objection to part of a request must specify the part and permit inspection of the rest.
(D) Responding to a Request for Production of Electronically Stored Information . The response may state an objection to a requested form for producing electronically stored information. If the responding party objects to a requested form — or if no form was specified in the request — the party must state the form or forms it intends to use.
(E) Producing the Documents or Electronically Stored Information . Unless otherwise stipulated or ordered by the court, these procedures apply to producing documents or electronically stored information:
(i) A party must produce documents as they are kept in the usual course of business or must organize and label them to correspond to the categories in the request;
(ii) If a request does not specify a form for producing electronically stored information, a party must produce it in a form or forms in which it is ordinarily maintained or in a reasonably usable form or forms; and
(iii) A party need not produce the same electronically stored information in more than one form.
(c) Nonparties.
As provided in Rule 45 , a nonparty may be compelled to produce documents and tangible things or to permit an inspection.
Rule 64. Seizing a Person or Property
(a) Remedies Under State Law — In General.
At the commencement of and throughout an action, every remedy is available that, under the law of the state where the court is located, provides for seizing a person or property to secure satisfaction of the potential judgment. But a federal statute governs to the extent it applies.
(b) Specific Kinds of Remedies.
The remedies available under this rule include the following — however designated and regardless of whether state procedure requires an independent action:
arrest;
attachment;
garnishment;
replevin;
sequestration; and
other corresponding or equivalent remedies.
Rule 70. Enforcing a Judgment for a Specific Act
(a) Party's Failure to Act; Ordering Another to Act.
If a judgment requires a party to convey land, to deliver a deed or other document, or to perform any other specific act and the party fails to comply within the time specified, the court may order the act to be done — at the disobedient party's expense — by another person appointed by the court. When done, the act has the same effect as if done by the party.
(b) Vesting Title.
If the real or personal property is within the district, the court — instead of ordering a conveyance — may enter a judgment divesting any party's title and vesting it in others. That judgment has the effect of a legally executed conveyance.
(c) Obtaining a Writ of Attachment or Sequestration.
On application by a party entitled to performance of an act, the clerk must issue a writ of attachment or sequestration against the disobedient party's property to compel obedience.
(d) Obtaining a Writ of Execution or Assistance.
On application by a party who obtains a judgment or order for possession, the clerk must issue a writ of execution or assistance.
(e) Holding in Contempt.
The court may also hold the disobedient party in contempt.
Rule 72. Magistrate Judges: Pretrial Order
(a) Nondispositive Matters.
When a pretrial matter not dispositive of a party's claim or defense is referred to a magistrate judge to hear and decide, the magistrate judge must promptly conduct the required proceedings and, when appropriate, issue a written order stating the decision. A party may serve and file objections to the order within 14 days after being served with a copy. A party may not assign as error a defect in the order not timely objected to. The district judge in the case must consider timely objections and modify or set aside any part of the order that is clearly erroneous or is contrary to law.
(b) Dispositive Motions and Prisoner Petitions.
(1) Findings and Recommendations.
A magistrate judge must promptly conduct the required proceedings when assigned, without the parties' consent, to hear a pretrial matter dispositive of a claim or defense or a prisoner petition challenging the conditions of confinement. A record must be made of all evidentiary proceedings and may, at the magistrate judge's discretion, be made of any other proceedings. The magistrate judge must enter a recommended disposition, including, if appropriate, proposed findings of fact. The clerk must promptly mail a copy to each party.
(2) Objections.
Within 14 days after being served with a copy of the recommended disposition, a party may serve and file specific written objections to the proposed findings and recommendations. A party may respond to another party's objections within 14 days after being served with a copy. Unless the district judge orders otherwise, the objecting party must promptly arrange for transcribing the record, or whatever portions of it the parties agree to or the magistrate judge considers sufficient.
(3) Resolving Objections.
The district judge must determine de novo any part of the magistrate judge's disposition that has been properly objected to. The district judge may accept, reject, or modify the recommended disposition; receive further evidence; or return the matter to the magistrate judge with instructions.
Rule 73. Magistrate Judges: Trial by Consent; Appeal
(a) Trial by Consent.
When authorized under 28 U.S.C. § 636 (c), a magistrate judge may, if all parties consent, conduct a civil action or proceeding, including a jury or nonjury trial. A record must be made in accordance with 28 U.S.C. § 636(c)(5).
(b) Consent Procedure.
(1) In General.
When a magistrate judge has been designated to conduct civil actions or proceedings, the clerk must give the parties written notice of their opportunity to consent under 28 U.S.C. § 636 (c) . To signify their consent, the parties must jointly or separately file a statement consenting to the referral. A district judge or magistrate judge may be informed of a party's response to the clerk's notice only if all parties have consented to the referral.
(2) Reminding the Parties About Consenting.
A district judge, magistrate judge, or other court official may remind the parties of the magistrate judge's availability, but must also advise them that they are free to withhold consent without adverse substantive consequences.
(3) Vacating a Referral.
On its own for good cause — or when a party shows extraordinary circumstances — the district judge may vacate a referral to a magistrate judge under this rule.
(c) Appealing a Judgment.
In accordance with 28 U.S.C. § 636 (c)(3), an appeal from a judgment entered at a magistrate judge's direction may be taken to the court of appeals as would any other appeal from a district-court judgment.
Rule 23. Class Actions
(a) Prerequisites.
One or more members of a class may sue or be sued as representative parties on behalf of all members only if:
(1) the class is so numerous that joinder of all members is impracticable,
(2) there are questions of law or fact common to the class,
(3) the claims or defenses of the representative parties are typical of the claims or defenses of the class; and
(4) the representative parties will fairly and adequately protect the interests of the class.
(b) Types of Class Actions.
A class action may be maintained if Rule 23(a) is satisfied and if:
(1) prosecuting separate actions by or against individual class members would create a risk of:
(A) inconsistent or varying adjudications with respect to individual class members that would establish incompatible standards of conduct for the party opposing the class; or
(B) adjudications with respect to individual class members that, as a practical matter, would be dispositive of the interests of the other members not parties to the individual adjudications or would substantially impair or impede their ability to protect their interests;
(2) the party opposing the class has acted or refused to act on grounds that apply generally to the class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole; or
(3) the court finds that the questions of law or fact common to class members predominate over any questions affecting only individual members, and that a class action is superior to other available methods for fairly and efficiently adjudicating the controversy. The matters pertinent to these findings include:
(A) the class members' interests in individually controlling the prosecution or defense of separate actions;
(B) the extent and nature of any litigation concerning the controversy already begun by or against class members;
(C) the desirability or undesirability of concentrating the litigation of the claims in the particular forum; and
(D) the likely difficulties in managing a class action.
(c) Certification Order; Notice to Class Members; Judgment; Issues Classes; Subclasses.
(1) Certification Order.
(A) Time to Issue . At an early practicable time after a person sues or is sued as a class representative, the court must determine by order whether to certify the action as a class action.
(B) Defining the Class; Appointing Class Counsel . An order that certifies a class action must define the class and the class claims, issues, or defenses, and must appoint class counsel under Rule 23(g).
(C) Altering or Amending the Order . An order that grants or denies class certification may be altered or amended before final judgment.
(2) Notice.
(A) For (b)(1) or (b)(2) Classes . For any class certified under Rule 23(b)(1) or (b)(2), the court may direct appropriate notice to the class.
(B) For (b)(3) Classes . For any class certified under Rule 23(b)(3), the court must direct to class members the best notice that is practicable under the circumstances, including individual notice to all members who can be identified through reasonable effort. The notice must clearly and concisely state in plain, easily understood language:
(i) the nature of the action;
(ii) the definition of the class certified;
(iii) the class claims, issues, or defenses;
(iv) that a class member may enter an appearance through an attorney if the member so desires;
(v) that the court will exclude from the class any member who requests exclusion;
(vi) the time and manner for requesting exclusion; and
(vii) the binding effect of a class judgment on members under Rule 23(c)(3).
(3) Judgment.
Whether or not favorable to the class, the judgment in a class action must:
(A) for any class certified under Rule 23(b)(1) or (b)(2), include and describe those whom the court finds to be class members; and
(B) for any class certified under Rule 23(b)(3), include and specify or describe those to whom the Rule 23(c)(2) notice was directed, who have not requested exclusion, and whom the court finds to be class members.
(4) Particular Issues.
When appropriate, an action may be brought or maintained as a class action with respect to particular issues.
(5) Subclasses.
When appropriate, a class may be divided into subclasses that are each treated as a class under this rule.
(d) Conducting the Action.
(1) In General.
In conducting an action under this rule, the court may issue orders that:
(A) determine the course of proceedings or prescribe measures to prevent undue repetition or complication in presenting evidence or argument;
(B) require — to protect class members and fairly conduct the action — giving appropriate notice to some or all class members of:
(i) any step in the action;
(ii) the proposed extent of the judgment; or
(iii) the members' opportunity to signify whether they consider the representation fair and adequate, to intervene and present claims or defenses, or to otherwise come into the action;
(C) impose conditions on the representative parties or on intervenors;
(D) require that the pleadings be amended to eliminate allegations about representation of absent persons and that the action proceed accordingly; or
(E) deal with similar procedural matters.
(2) Combining and Amending Orders.
An order under Rule 23(d)(1) may be altered or amended from time to time and may be combined with an order under Rule 16 .
(e) Settlement, Voluntary Dismissal, or Compromise.
The claims, issues, or defenses of a certified class may be settled, voluntarily dismissed, or compromised only with the court's approval. The following procedures apply to a proposed settlement, voluntary dismissal, or compromise:
(1) The court must direct notice in a reasonable manner to all class members who would be bound by the proposal.
(2) If the proposal would bind class members, the court may approve it only after a hearing and on finding that it is fair, reasonable, and adequate.
(3) The parties seeking approval must file a statement identifying any agreement made in connection with the proposal.
(4) If the class action was previously certified under Rule 23(b)(3), the court may refuse to approve a settlement unless it affords a new opportunity to request exclusion to individual class members who had an earlier opportunity to request exclusion but did not do so.
(5) Any class member may object to the proposal if it requires court approval under this subdivision (e); the objection may be withdrawn only with the court's approval.
(f) Appeals.
A court of appeals may permit an appeal from an order granting or denying class-action certification under this rule if a petition for permission to appeal is filed with the circuit clerk within 14 days after the order is entered. An appeal does not stay proceedings in the district court unless the district judge or the court of appeals so orders.
(g) Class Counsel.
(1) Appointing Class Counsel.
Unless a statute provides otherwise, a court that certifies a class must appoint class counsel. In appointing class counsel, the court:
(A) must consider:
(i) the work counsel has done in identifying or investigating potential claims in the action;
(ii) counsel's experience in handling class actions, other complex litigation, and the types of claims asserted in the action;
(iii) counsel's knowledge of the applicable law; and
(iv) the resources that counsel will commit to representing the class;
(B) may consider any other matter pertinent to counsel's ability to fairly and adequately represent the interests of the class;
(C) may order potential class counsel to provide information on any subject pertinent to the appointment and to propose terms for attorney's fees and nontaxable costs;
(D) may include in the appointing order provisions about the award of attorney's fees or nontaxable costs under Rule 23(h); and
(E) may make further orders in connection with the appointment.
(2) Standard for Appointing Class Counsel.
When one applicant seeks appointment as class counsel, the court may appoint that applicant only if the applicant is adequate under Rule 23(g)(1) and (4). If more than one adequate applicant seeks appointment, the court must appoint the applicant best able to represent the interests of the class.
(3) Interim Counsel.
The court may designate interim counsel to act on behalf of a putative class before determining whether to certify the action as a class action.
(4) Duty of Class Counsel.
Class counsel must fairly and adequately represent the interests of the class.
(h) Attorney's Fees and Nontaxable Costs.
In a certified class action, the court may award reasonable attorney's fees and nontaxable costs that are authorized by law or by the parties' agreement. The following procedures apply:
(1) A claim for an award must be made by motion under Rule 54(d) (2), subject to the provisions of this subdivision (h), at a time the court sets. Notice of the motion must be served on all parties and, for motions by class counsel, directed to class members in a reasonable manner.
(2) A class member, or a party from whom payment is sought, may object to the motion.
(3) The court may hold a hearing and must find the facts and state its legal conclusions under Rule 52(a) .
(4) The court may refer issues related to the amount of the award to a special master or a magistrate judge, as provided in Rule 54(d) (2)(D).
Rule 24. Intervention
(a) Intervention of Right.
On timely motion, the court must permit anyone to intervene who:
(1) is given an unconditional right to intervene by a federal statute; or
(2) claims an interest relating to the property or transaction that is the subject of the action, and is so situated that disposing of the action may as a practical matter impair or impede the movant's ability to protect its interest, unless existing parties adequately represent that interest.
(b) Permissive Intervention.
(1) In General.
On timely motion, the court may permit anyone to intervene who:
(A) is given a conditional right to intervene by a federal statute; or
(B) has a claim or defense that shares with the main action a common question of law or fact.
(2) By a Government Officer or Agency.
On timely motion, the court may permit a federal or state governmental officer or agency to intervene if a party's claim or defense is based on:
(A) a statute or executive order administered by the officer or agency; or
(B) any regulation, order, requirement, or agreement issued or made under the statute or executive order.
(3) Delay or Prejudice.
In exercising its discretion, the court must consider whether the intervention will unduly delay or prejudice the adjudication of the original parties' rights.
(c) Notice and Pleading Required.
A motion to intervene must be served on the parties as provided in Rule 5 . The motion must state the grounds for intervention and be accompanied by a pleading that sets out the claim or defense for which intervention is sought.
Water
Section 1475(a) would block implementation of protections under the Endangered Species Act for fish in the San Francisco Bay-Delta ecosystem, including winter run Chinook salmon, spring run Chinook salmon, steelhead, green sturgeon and delta smelt. This measure is designed to increase the delivery of water subsidized by federal taxpayers, at the expense of California cities, other farmers, the health of the San Francisco Bay-Delta, and especially the California salmon fishing industry.
Section 1747 would halt EPA's determination of which waters remain protected by the Clean Water Act in the wake of Rapanos.
An amendment offered by Rep. Griffith (R-VA) , and passed 235-185 , would block EPA and other agencies from conducting meaningful oversight of mountaintop removal coal mining operations.
An amendment offered by Rep. Goodlatte (R-VA) , and passed 230-195 , would block EPA from implementing a plan to clean up the Chesapeake Bay.
An amendment offered by Rep. Johnson (R-OH) , and passed 239-186 , would block the Department of the Interior from issuing new regulations to limit stream damage from surface coal mining.
An amendment offered by Rep. Jones (R-NC), and passed 259 – 159 , would prohibit the National Oceanic and Atmospheric Administration (NOAA) from developing or approving new catch share programs to limit overfishing.
An amendment offered by Rep. McKinley (R-WV) , and passed 240-182 , would effectively strip EPA of its authority under the Clean Water Act to prohibit or restrict certain discharges that would have an “unacceptable adverse effect” on water, fish or wildlife.
An amendment offered by Rep. McKinley (R-WV) , and passed 239-183 , would prevent EPA from establishing minimum standards for the disposal and handling of coal ash as a hazardous waste. Coal ash is a well-documented threat to human health and the environment, and due to largely unregulated dumping, poses a threat to our waterways and drinking water.
An amendment offered by Rep. Rooney (R-FL) , and passed 237-189 , would block a plan to clean up waterways in Florida.
Air/ Climate
Section 1746 would prevent the Environmental Protection Agency (EPA) from proposing, implementing or enforcing any regulations on stationary sources of greenhouse gas emissions because of concerns about climate change.
An amendment offered by Rep. Carter (R-TX ), and passed 250-177 , would prevent EPA from limiting toxic emissions from cement plants. The amendment would block the EPA's efforts to keep 16,000 pounds of mercury a year out of the air.
An amendment offered by Rep. Noem (R-SD), and passed 255-168 , would block EPA from updating limits on the emission of particulates -- basically, soot .
An amendment offered by Rep. Poe (R-TX) , and passed 249-177 , would block EPA from limiting emissions of greenhouse gases from any stationary source for any reason.
An amendment offered by Rep. Young (R-AK), and passed 243-185 , would block EPA from fully applying the Clean Air Act to oil drilling activities in Alaska. The EPA's Environmental Appeals Board recently ruled that a permit issued for Shell Oil to drill in the Arctic did not comply with the Clean Air Act. This amendment would prevent the Board from taking any similar actions for the rest of the fiscal year.
Wildlife/ Lands
Section 1713 would direct the Secretary of the Interior to reinstate a 2009 rule delisting wolves under the Endangered Species Act within portions of the northern Rockies within 60 days of the bill's enactment and insulates the action from judicial review. This provision would overturn a federal court decision and establish a dangerous precedent of legislatively delisting a species.
Section 1778 would block the reinstatement of a policy that allows the Department of the Interior to protect the wilderness qualities of lands pending a Congressional wilderness designation.
An amendment offered by Rep. Herger (R-CA), and passed 227 - 197 , would stop implementation of the Forest Service's Travel Management Rule, to develop a more efficient, more manageable system of roads through our national forests.
Environmental Justice
An amendment offered by Rep. Lummis (R- WY), and passed 232- 197, would make it harder to sue the government to enforce environmental laws. The amendment would block the government from paying the legal fees of individuals or citizen groups that successfully sue it. Since the amendment does not change the underlying law, it basically would require the government to default on its obligation to pay the fees.
EPA Updates Database on Health and Environmental Impacts of Electricity Generation User friendly web tool allows Americans to search for power providers by zip code
WASHINGTON -- The U.S. Environmental Protection Agency updated its database that helps Americans understand the health and environmental impacts of electricity generation. EPA's Emissions and Generation Integrated Resource Database (eGRID) and Power Profiler now include data from 2007, an update from 2005.
eGRID is a comprehensive database of emissions from almost all electric power generated in the United States. The data are widely used to show the impacts of electricity generation as well as the benefits from reduced electricity demand. eGRID contains emissions information for nitrogen oxides (NO x ) and sulfur dioxide (SO 2 ) which contribute to unhealthy air quality and acid rain in many parts of the country. eGRID also contains emissions information for carbon dioxide (CO 2 ), methane (CH 4 ), and nitrous oxide (N 2 O), which are greenhouse gases that contribute to climate change.
Power Profiler is a user friendly online application that uses eGRID data to show air emissions information and the type of electricity generation, such as coal or nuclear, in various regions of the country. By simply entering a zip code and selecting a utility, users can learn more about where their electricity comes from and what impact it has on air quality and the environment.
Senate Majority Leader Harry Reid (D-Nev.) said Senate Republicans have violated their agreement to hold a test-vote on the House GOP's 2011 budget plan that would slash $57.5 billion in government spending.
“They don't want to live up to the agreement that was made,” Reid said in comments on the Senate floor. “We agreed, I repeat, to hold a vote on H.R. 1, the Republican plan that they moved to the Senate floor themselves.”
Reid said GOP leaders, including Senate Minority Leader Mitch McConnell (R-Ky.) and Speaker John Boehner (R-Ohio) agreed to the vote during a meeting last week with Reid, House Minority Leader Nancy Pelosi (D-Calif.), and Vice President Biden. The parties also agreed to vote on the Democratic spending proposal that would cut just $6.5 billion in spending.
“There is no question that that was the agreement made,” said Reid. “No question that that was the deal. But now the Republicans are reneging on that deal. They don't want to vote on their own plan.”
A GOP aide said he expected votes on the spending measures to take place Tuesday evening or Wednesday. The aide said Reid is making accusations to distract people from criticism that Sen. Joe Manchin (D-W.Va.) leveled at Democratic leaders earlier in the morning for not taking a more aggressive approach to reducing spending.
Reid insisted in his comments that he would force a vote on the legislation, whether Republicans liked it or not.
“Well they are going to have a chance to vote on H.R. 1,” Reid said. “I may have to jump through all the procedural hoops to do it in spite of the fact that they made a deal. We are going to do that. The Republicans over here are going to have to vote on that terrible bill. They are going to have to vote on it."
Superfund: Information on the Nature and Costs of Cleanup Activities at Three Landfills in the Gulf Coast Region
The Environmental Protection Agency (EPA) estimates that one in four Americans lives within 3 miles of a contaminated site, many of which pose serious risks to human health and the environment. The Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (CERCLA) provided the federal government with authority to respond to releases or threatened releases of hazardous substances and created a trust fund to provide for certain cleanup activities. Under CERCLA, EPA established the Superfund program to address the threats that contaminated sites pose. Although EPA has paid for the cleanup of many of these sites through the Superfund program, funding for these cleanups has diminished in recent years. In 2010, we reported that EPA's estimated costs to clean up existing contaminated sites exceed the Superfund program's current funding levels and that some sites have not received sufficient funding for cleanup to proceed in the most cost-efficient manner. Additionally, in July 2009, we reported that EPA does not collect sufficient information on the cost of cleanup activities at Superfund sites and recommended, among other things, that EPA assess and improve the data it collects on the status and cost of cleanups. EPA coordinates the cleanup of Superfund sites by identifying sites potentially requiring cleanup action and placing eligible sites on its National Priorities List (NPL). EPA may compel the parties responsible for contaminating these sites to clean them up, or the agency may, using resources from the trust fund established by CERCLA, conduct cleanups itself and seek reimbursement from responsible parties. In some cases, EPA may not be able to obtain reimbursement because the agency cannot identify a responsible party or the responsible party or parties may be insolvent or may no longer exist. One category of contaminated sites--landfills and other waste disposal facilities--made up more than one-third of the 1,397 sites EPA placed on the NPL from 1983 through 2007, and EPA's expenditures at these 511 sites totaled about $3.6 billion through fiscal year 2007. According to EPA, landfill sites on the NPL generally share similar characteristics and present similar threats to the environment. For example, these sites generally exhibit contamination in various media, such as soil, surface water, or groundwater, and many landfills at Superfund sites contain hazardous waste that may contaminate nearby soil or water. Further, some have argued that landfills used for the disposal of debris created by disasters may also contain hazardous waste that could have long-term, negative environmental impacts. Consequently, concerns have been raised by various studies and environmental groups about the potential for such landfills to become Superfund sites. For instance, in the aftermath of Hurricane Katrina, a Louisiana emergency order authorized some potentially hazardous materials to be disposed of in landfills permitted to receive construction and demolition debris rather than in landfills with liners approved for such waste. Studies by a Louisiana State University research institute and an environmental engineering firm found that these categories of waste can introduce hazardous materials into landfills, increasing the likelihood of pollution. In this context, Congress asked us to review issues related to the cost to clean up the Agriculture Street Landfill Superfund site, which received debris from Hurricane Betsy in 1965, and other Superfund sites involving landfills in the Gulf Coast region where cleanup has been completed. Our objectives were to determine (1) what is known about the nature and costs of the cleanup activities at Superfund landfill sites and (2) the costs to clean up the Agriculture Street Landfill site and two additional selected Superfund landfill sites in the Gulf Coast region, and the key factors that influenced these costs.
While cleanup activities at Superfund landfills depend largely on the nature and extent of the contamination at each site, these activities generally include extraction, treatment, and containment. Extraction is the removal of contaminated substances from a site. At landfill sites, extraction may involve excavating contaminated soil and other landfill contents from the site and disposing of these materials at an off-site facility that is permitted to receive such products. According to EPA, extraction is the most expensive cleanup approach used at Superfund landfill sites. Treatment is the reduction of contaminated substances at a site and involves processing contaminated media, either on- or off-site, to reduce the toxicity, mobility, or volume of contamination. For example, EPA and responsible parties may remove groundwater from a Superfund site and chemically process it to remove contaminants at an off-site facility, or they may install a system at the site to treat the contaminated water in place. While treatment is a lower-cost alternative to extraction, it is a high-cost cleanup approach. Finally, containment involves leaving contaminated media on-site and installing measures to prevent human exposure to hazardous substances. For instance, containment at a Superfund landfill site may include installing a cover over landfill contents and establishing institutional controls, such as legal access restrictions, to limit exposure to the contaminated material. Containment is generally the least expensive method of addressing Superfund landfills. Limited data are available on the actual costs of cleanup activities conducted at Superfund landfill sites for two main reasons. First, EPA does not maintain a central tracking system for the costs of such cleanup activities. While EPA tracks its expenditures at Superfund sites, this information does not include the cost associated with each cleanup activity conducted at a site. Rather, EPA's Superfund cost information focuses on the total cost of each contract under which multiple cleanup activities may have been conducted. Second, cost data are limited because no requirements exist for responsible parties--including private companies, states, and local governments--to maintain or disclose their cleanup costs at Superfund sites. Private companies generally consider their cleanup costs as information that they have a right to keep confidential. While state and local governments are generally required to collect cleanup cost data under public accounting standards, these standards generally do not address maintenance of the data. While only limited cleanup cost data are available, we estimated that the costs to clean up three Superfund landfill sites in the Gulf Coast region--the Agriculture Street, Beulah, and Taylor Road landfill sites--ranged from about $13 million to about $55 million. This range is largely the result of differences among the sites in such factors as site geology and proximity to residential areas.
Last Friday the CFTC released their monthly Bank Participation Report (BPR) which revealed a startling statistic. After 3 months of desperately trying to cover their gigantic short position the US Banks that control the price of silver decided to go back to their reckless shorting routine...BY A HUGE AMOUNT! Here's the numbers and the link to the CFTC BPR postings:
Over the last 3 months it really looked like they were trying to close out their gigantic short position before the Position Limit Rule goes into effect on March 28, 2011. That was until the latest BPR was posted. Just look at the increase in the US Bank silver short position...
3/1/11 = 25,586
IT GREW BY 5,880 CONTRACTS OR CLOSE TO 30M OUNCES!
That is a STUNNING amount of new shorts added during the month of February when the price of silver actually managed to RISE 25%. It is important to understand that IF these new shorts were not placed on COMEX silver then THE PRICE WOULD HAVE EXPLODED TO OVER $50 OR EVEN $100 PER OUNCE!
Novartis was created in 1996 from the merger of Ciba-Geigy and Sandoz Laboratories , both Swiss companies with long histories. Ciba-Geigy was formed in 1970 by the merger of J. R. Geigy Ltd (founded in Basel in 1758) and CIBA (founded in Basel in 1859). Combining the histories of the merger partners, the company's effective history spans 250 years. [ 14 ]
In 1859, Alexander Clavel (1805 – 1873) took up the production of fuchsine in his factory for silk -dyeing works in Basel. In 1864, a new site for the production of synthetic dyes was constructed, and in 1873, Clavel sold his dye factory to the new company Bindschedler and Busch . In 1884, Bindschedler and Busch was transformed into a joint-stock company with the name "Gesellschaft für Chemische Industrie Basel" (Company for Chemical Industry Basel). The acronym , CIBA , was adopted as the company's name in 1945.
In 1925, J. R. Geigy Ltd. began producing textile auxiliaries, [ clarification needed ] an activity which Ciba took up in 1928.
CIBA and Geigy merged in 1971 to form Ciba-Geigy Ltd. . This company merged with Sandoz in 1996, with the pharmaceutical divisions of both staying together to form Novartis. Other Ciba-Geigy businesses being spun off as independent companies.
Sandoz
The Chemiefirma Kern und Sandoz ("Kern and Sandoz Chemistry Firm") was founded in 1886 by Alfred Kern (1850–1893) and Edouard Sandoz (1853–1928). The first dyes manufactured by them were alizarine blue and auramine . After Kern's death, the partnership became the corporation Chemische Fabrik vormals Sandoz in 1895. The company began producing the fever-reducing drug antipyrin in the same year. In 1899, the company began producing the sugar substitute, saccharin . Further pharmaceutical research began in 1917 under Arthur Stoll (1887–1971), who is the founder of Sandoz's pharmaceutical department in 1917 . In 1918, Arthur Stoll isolates ergotamine from ergot; the substance is eventually used to treat migraine and headeaches and is introduced under the trade name Gynergen in 1921.
Between the World Wars, Gynergen (1921) and Calcium-Sandoz (1929) were brought to market. Sandoz also produced chemicals for textiles , paper , and leather , beginning in 1929. In 1939, the company began producing agricultural chemicals.
The psychedelic effects of lysergic acid diethylamide (LSD) were discovered at the Sandoz laboratories in 1943 by Arthur Stoll and Albert Hofmann ( patent by Stoll and Hofmann in USA on Mar. 23, 1948 ). Sandoz began clinical trials and marketed the substance, from 1947 through the mid 1960s, under the name Delysid as a psychiatric drug, thought useful for treating a wide variety of mental ailments , ranging from alcoholism to sexual deviancy . Sandoz suggested in its marketing literature that psychiatrists take LSD themselves, [ 16 ] to gain a better subjective understanding of the schizophrenic experience, and many did exactly that and so did other scientific researchers. For several years, the psychedelic drugs also were called " psychotomimetic " because they were thought to mimic psychosis . Later research caused this term to be abandoned, as neuroscientists gained a better understanding of psychoses, including schizophrenia. Research on LSD peaked in the 1950s and early 1960s. Sandoz withdrew the drug from the market in the mid-1960s. The drug became a cultural novelty of the 1960s after psychologist Timothy Leary at Harvard University began to promulgate its use for recreational and spiritual experiences among the general public.
On 1 November 1986, a fire broke out in a production plant storage room, which led to Sandoz chemical spill and a large amount of pesticide being released into the upper Rhine river. This exposure killed many fish and other aquatic life.
In 1995, Sandoz spun off its specialty chemicals business to form Clariant . Subsequently, in 1997, Clariant merged with the specialty chemicals business that was spun off from Hoechst AG in Germany .
In 2005, Sandoz expanded significantly though the acquisition of Hexal , one of Germany's leading generic drug companies, and Eon Labs , a fast-growing United States generic pharmaceutical company.
"Sandoz" continues to be used as a Novartis generic drug brand (see below for details) .
After the merger
After the merger, Novartis reorganized its operating units and spun out its chemical activities as Ciba Specialty Chemicals (now a part of BASF ).
In 1998, the company made headlines with its biotechnology licensing agreement with the University of California at Berkeley Department of Plant and Microbial Biology . Critics of the agreement expressed concern over prospects that the agreement would diminish academic objectivity, or lead to the commercialization of genetically modified plants. The agreement expired in 2003.
In 2003, Novartis created a subsidiary that bundles its generic drug production, reusing the predecessor brand name of Sandoz. [ 17 ]
In 2005, Novartis introduced Certican ( Everolimus ), an immunosuppressant, and in October 2006 began marketing Telbivudine , a new antiviral drug for hepatitis B .
On 20 April 2006, Novartis acquired the California-based Chiron Corporation . Chiron formerly was divided into three units: Chiron Vaccines, Chiron Blood Testing, and Chiron BioPharmaceuticals, to be integrated into Novartis Pharmaceuticals. Chiron Vaccines and Chiron Blood Testing now are combined to form Novartis Vaccines and Diagnostics.
The ongoing Basel Campus Project has the aim to transform the St. Johann site - Novartis headquarters in Basel - "from an industrial complex to a place of innovation, knowledge, and encounter". [ 18 ]
On 12 October 2009, Novartis has entered into an agreement for exclusive US and Canadian rights to Fanapt(iloperidone), a new oral medication that is approved by the U.S. Food and Drug Administration (FDA) for the acute treatment of adults with schizophrenia. [ 19 ]
On 6 November 2009, Novartis reached an agreement to acquire an 85% stake in the Chinese vaccines company Zhejiang Tianyuan Bio-Pharmaceutical Co., Ltd. as part of a strategic initiative to build a vaccines industry leader in this country and expand the Group's limited presence in this fast-growing market segment. This proposed acquisition will require government and regulatory approvals in China. [ 20 ]
On 4 January 2010, Novartis offered to pay US $39.3 billion to fully acquire Alcon , the world's largest eye-care company, including a majority stake held by Nestlé . Novartis had bought 25% of Alcon in 2008. [ 21 ]
On 11 March 2010, Novartis settled their patent suit in the US District Court for the District of New Jersey with IntelliPharmaCeutics International, Ltd. , a Canada-based specialty pharmaceutical company, and its licensee Par Pharmaceutical Inc. over a generic version of the attention deficit hyperactivity disorder drug Focalin XR (dexmethylphenidate hydrochloride). [ 22 ]
Bayer CropScience has products in crop protection and non-agricultural pest control. It also has activities in seeds and plant traits. [ 1 ]
In 2002 Bayer AG acquired Aventis CropScience and fused it with their own agrochemicals division (Bayer Pflanzenschutz or "Crop Protection") to form Bayer CropScience. The company is now one of the world's leading innovative crop science companies in the areas of crop protection (i.e. pesticides ), non- agricultural pest control, seeds and plant biotechnology . In addition to conventional agrochemical business it is involved in genetic engineering of food . The Belgian biotech company Plant Genetic Systems , became part of the company by the acquisition of Aventis CropScience.
Also in 2002, Bayer AG acquired the Dutch seed company Nunhems .
EPA does not enforce a coherent program of position management to assure the efficient and effective use of its workforce. While some organizational elements have independently established programs to control their resources, there is no Agency-wide effort to ensure that personnel are put to the best use. Prior to April 2010, EPA had the Position Management and Control Manual, which required an Agency-wide program. However this manual was not enforced and in April 2010 it was cancelled without replacement. According to the cancellation memorandum, the manual was eliminated because Office of Administration and Resources Management (OARM) officials believed EPA had other mechanisms in place to appropriately manage and control its positions. However, the other mechanisms do not provide similar effects, controls, or documentation. Without an Agency-wide position management program, EPA leadership lacks reasonable assurance that it is using personnel in an effective and efficient manner to achieve mission results.
Related Internal Control Requirements
Besides the requirements specific to position management that were in the 3150 Manual, EPA must comply with a variety of more general requirements about internal controls. These include:
1. Federal Managers’ Financial Integrity Act (FMFIA) requires agencies to establish internal accounting and administrative controls that comply with standards established by the Comptroller General. It also requires an annual evaluation (and related statement) on whether the agency’s internal controls comply with specified standards and, if not, requires the agency to identify material weaknesses and plans to correct them.
2. Office of Management and Budget (OMB) Circular A-123, Management’s Responsibility for Internal Control, implements FMFIA. OMB Circular A-123 states that the internal control activities developed and maintained by management must comply with standards related to control environment, risk assessment, control activities, information and communication, and monitoring. Additionally, it specifies requirements for conducting assessments of internal controls.
3. EPA Records Management Policy (CIO 2155.1) implements the Federal Records Act of 1950, which requires all federal agencies to make and preserve records that document their organization, function, policies, decisions, procedures, and essential transactions. These records are public property and must be managed according to applicable laws and regulations. Thus, among other things, EPA must create, receive, and maintain official records providing adequate and proper evidence of Agency activities. Such records would include documentation of position management program activities.
EPA Cancelled Its Position Management Directive
On April 2, 2010, EPA cancelled the 3150 Manual, its written procedure on managing the workforce to accomplish the assigned mission as effectively and economically as possible. OARM staff believed position management was adequately addressed by other activities. However, the basis for that belief is undocumented.
On December 2, 2009, the Acting Deputy Director, OHR, stated that the FTE allocation process, workforce planning, and classification are the three parts of position management. However, EPA’s cancellation order, signed by the Acting Director, OHR, stated that OHR staff believed budgeting, strategic workforce planning, and strategic succession planning mechanisms allow it to appropriately manage and control positions. Further, OARM did not provide analysis or documentation of how these mechanisms allow it to appropriately manage and control positions. As described below, alternate activities do not provide similar effects, controls, or documentation as those provided by the process required by the 3150 Manual, or provide assurance that the workforce is being used efficiently and effectively.
Conclusion
EPA lacks reasonable assurance that program and regional offices are employing their staff resources effectively and efficiently. Effective resource management is essential to accomplish EPA’s mission to protect human health and the environment. EPA lacks an Agency-level program for effectively managing positions to assist in accomplishing its strategic goals and initiatives. Managing positions in a coherent and consistent program would provide EPA leadership with the tools it needs to make informed decisions about staff resources. Such a program would also assure Agency management that the workforce was used efficiently and effectively.
Action Required
In accordance with EPA Manual 2750, you are required to provide a written response to this report within 90 calendar days. Please consider our response to your comments and provide a final response, with milestone dates as appropriate. Your response will be posted on the IMMI public website, along with our memorandum commenting on your response. Your response should be provided as an Adobe PDF file that complies with the accessibility requirements of section 508 of the Rehabilitation Act of 1973, as amended. The final response should not contain data that you do not want to be released to the public; if your response contains such data, you should identify the data for redaction or removal. We have no objections to the further release of this report to the public. We will post this report to our website at http://www.ironmountainmine.com/
If you or your staff have any questions regarding this report, please contact John Hutchens,
Failure to Make Disclosures or to Cooperate in Discovery; Sanctions
(a) Motion for an Order Compelling Disclosure or Discovery.
(1) In General.
On notice to other parties and all affected persons, a party may move for an order compelling disclosure or discovery. The motion must include a certification that the movant has in good faith conferred or attempted to confer with the person or party failing to make disclosure or discovery in an effort to obtain it without court action.
(2) Appropriate Court.
A motion for an order to a party must be made in the court where the action is pending. A motion for an order to a nonparty must be made in the court where the discovery is or will be taken.
(3) Specific Motions.
(A) To Compel Disclosure . If a party fails to make a disclosure required by Rule 26(a) , any other party may move to compel disclosure and for appropriate sanctions.
(B) To Compel a Discovery Response . A party seeking discovery may move for an order compelling an answer, designation, production, or inspection. This motion may be made if:
(i) a deponent fails to answer a question asked under Rules 30 or 31 ;
(ii) a corporation or other entity fails to make a designation under Rule 30(b)(6) or 31(a)(4);
(iii) a party fails to answer an interrogatory submitted under Rule 33 , or
(iv) a party fails to respond that inspection will be permitted — or fails to permit inspection — as requested under Rule 34 .
(C) Related to a Deposition . When taking an oral deposition, the party asking a question may complete or adjourn the examination before moving for an order.
(4) Evasive or Incomplete Disclosure, Answer, or Response.
For purposes of this subdivision (a), an evasive or incomplete disclosure, answer, or response must be treated as a failure to disclose, answer, or respond.
(5) Payment of Expenses; Protective Orders.
(A) If the Motion Is Granted (or Disclosure or Discovery Is Provided After Filing) . If the motion is granted — or if the disclosure or requested discovery is provided after the motion was filed — the court must, after giving an opportunity to be heard, require the party or deponent whose conduct necessitated the motion, the party or attorney advising that conduct, or both to pay the movant's reasonable expenses incurred in making the motion, including attorney's fees. But the court must not order this payment if:
(i) the movant filed the motion before attempting in good faith to obtain the disclosure or discovery without court action;
(ii) the opposing party's nondisclosure, response, or objection was substantially justified; or
(iii) other circumstances make an award of expenses unjust.
(B) If the Motion Is Denied . If the motion is denied, the court may issue any protective order authorized under Rule 26(c) and must, after giving an opportunity to be heard, require the movant, the attorney filing the motion, or both to pay the party or deponent who opposed the motion its reasonable expenses incurred in opposing the motion, including attorney's fees. But the court must not order this payment if the motion was substantially justified or other circumstances make an award of expenses unjust.
(C) If the Motion Is Granted in Part and Denied in Part . If the motion is granted in part and denied in part, the court may issue any protective order authorized under Rule 26(c) and may, after giving an opportunity to be heard, apportion the reasonable expenses for the motion.
(b) Failure to Comply with a Court Order.
(1) Sanctions in the District Where the Deposition Is Taken.
If the court where the discovery is taken orders a deponent to be sworn or to answer a question and the deponent fails to obey, the failure may be treated as contempt of court.
(2) Sanctions in the District Where the Action Is Pending.
(A) For Not Obeying a Discovery Order . If a party or a party's officer, director, or managing agent — or a witness designated under Rule 30(b) (6) or 31(a) (4) — fails to obey an order to provide or permit discovery, including an order under Rule 26(f) , 35 , or 37(a), the court where the action is pending may issue further just orders. They may include the following:
(i) directing that the matters embraced in the order or other designated facts be taken as established for purposes of the action, as the prevailing party claims;
(ii) prohibiting the disobedient party from supporting or opposing designated claims or defenses, or from introducing designated matters in evidence;
(iii) striking pleadings in whole or in part;
(iv) staying further proceedings until the order is obeyed;
(v) dismissing the action or proceeding in whole or in part;
(vi) rendering a default judgment against the disobedient party; or
(vii) treating as contempt of court the failure to obey any order except an order to submit to a physical or mental examination.
(B) For Not Producing a Person for Examination . If a party fails to comply with an order under Rule 35(a) requiring it to produce another person for examination, the court may issue any of the orders listed in Rule 37(b)(2)(A)(i)-(vi), unless the disobedient party shows that it cannot produce the other person.
(C) Payment of Expenses . Instead of or in addition to the orders above, the court must order the disobedient party, the attorney advising that party, or both to pay the reasonable expenses, including attorney's fees, caused by the failure, unless the failure was substantially justified or other circumstances make an award of expenses unjust.
(c) Failure to Disclose; to Supplement an Earlier Response, or to Admit.
(1) Failure to Disclose or Supplement.
If a party fails to provide information or identify a witness as required by Rule 26(a) or 26(e) , the party is not allowed to use that information or witness to supply evidence on a motion, at a hearing, or at a trial, unless the failure was substantially justified or is harmless. In addition to or instead of this sanction, the court, on motion and after giving an opportunity to be heard:
(A) may order payment of the reasonable expenses, including attorney's fees, caused by the failure;
(B) may inform the jury of the party's failure; and
(C) may impose other appropriate sanctions, including any of the orders listed in Rule 37(b)(2)(A)(i)-(vi).
(2) Failure to Admit.
If a party fails to admit what is requested under Rule 36 and if the requesting party later proves a document to be genuine or the matter true, the requesting party may move that the party who failed to admit pay the reasonable expenses, including attorney's fees, incurred in making that proof. The court must so order unless:
(A) the request was held objectionable under Rule 36(a) ;
(B) the admission sought was of no substantial importance;
(C) the party failing to admit had a reasonable ground to believe that it might prevail on the matter; or
(D) there was other good reason for the failure to admit.
(d) Party's Failure to Attend Its Own Deposition, Serve Answers to Interrogatories, or Respond to a Request for Inspection.
(1) In General.
(A) Motion; Grounds for Sanctions . The court where the action is pending may, on motion, order sanctions if:
(i) a party or a party's officer, director, or managing agent — or a person designated under Rule 30(b) (6) or 31(a) (4) — fails, after being served with proper notice, to appear for that person's deposition; or
(ii) a party, after being properly served with interrogatories under Rule 33 or a request for inspection under Rule 34 , fails to serve its answers, objections, or written response.
(B) Certification . A motion for sanctions for failing to answer or respond must include a certification that the movant has in good faith conferred or attempted to confer with the party failing to act in an effort to obtain the answer or response without court action.
(2) Unacceptable Excuse for Failing to Act.
A failure described in Rule 37(d)(1)(A) is not excused on the ground that the discovery sought was objectionable, unless the party failing to act has a pending motion for a protective order under Rule 26(c) .
(3) Types of Sanctions.
Sanctions may include any of the orders listed in Rule 37(b)(2)(A)(i)-(vi). Instead of or in addition to these sanctions, the court must require the party failing to act, the attorney advising that party, or both to pay the reasonable expenses, including attorney's fees, caused by the failure, unless the failure was substantially justified or other circumstances make an award of expenses unjust.
(e) Failure to Provide Electronically Stored Information.
Absent exceptional circumstances, a court may not impose sanctions under these rules on a party for failing to provide electronically stored information lost as a result of the routine, good-faith operation of an electronic information system.
(f) Failure to Participate in Framing a Discovery Plan.
If a party or its attorney fails to participate in good faith in developing and submitting a proposed discovery plan as required by Rule 26(f) , the court may, after giving an opportunity to be heard, require that party or attorney to pay to any other party the reasonable expenses, including attorney's fees, caused by the failure.
Depositions to Perpetuate Testimony
(a) Before an Action Is Filed.
(1) Petition.
A person who wants to perpetuate testimony about any matter cognizable in a United States court may file a verified petition in the district court for the district where any expected adverse party resides. The petition must ask for an order authorizing the petitioner to depose the named persons in order to perpetuate their testimony. The petition must be titled in the petitioner's name and must show:
(A) that the petitioner expects to be a party to an action cognizable in a United States court but cannot presently bring it or cause it to be brought;
(B) the subject matter of the expected action and the petitioner's interest;
(C) the facts that the petitioner wants to establish by the proposed testimony and the reasons to perpetuate it;
(D) the names or a description of the persons whom the petitioner expects to be adverse parties and their addresses, so far as known; and
(E) the name, address, and expected substance of the testimony of each deponent.
(2) Notice and Service.
At least 21 days before the hearing date, the petitioner must serve each expected adverse party with a copy of the petition and a notice stating the time and place of the hearing. The notice may be served either inside or outside the district or state in the manner provided in Rule 4 . If that service cannot be made with reasonable diligence on an expected adverse party, the court may order service by publication or otherwise. The court must appoint an attorney to represent persons not served in the manner provided in Rule 4 and to cross-examine the deponent if an unserved person is not otherwise represented. If any expected adverse party is a minor or is incompetent, Rule 17(c) applies.
(3) Order and Examination.
If satisfied that perpetuating the testimony may prevent a failure or delay of justice, the court must issue an order that designates or describes the persons whose depositions may be taken, specifies the subject matter of the examinations, and states whether the depositions will be taken orally or by written interrogatories. The depositions may then be taken under these rules, and the court may issue orders like those authorized by Rules 34 and 35 . A reference in these rules to the court where an action is pending means, for purposes of this rule, the court where the petition for the deposition was filed.
(4) Using the Deposition.
A deposition to perpetuate testimony may be used under Rule 32(a) in any later-filed district-court action involving the same subject matter if the deposition either was taken under these rules or, although not so taken, would be admissible in evidence in the courts of the state where it was taken.
(b) Pending Appeal.
(1) In General.
The court where a judgment has been rendered may, if an appeal has been taken or may still be taken, permit a party to depose witnesses to perpetuate their testimony for use in the event of further proceedings in that court.
(2) Motion.
The party who wants to perpetuate testimony may move for leave to take the depositions, on the same notice and service as if the action were pending in the district court. The motion must show:
(A) the name, address, and expected substance of the testimony of each deponent; and
(B) the reasons for perpetuating the testimony.
(3) Court Order.
If the court finds that perpetuating the testimony may prevent a failure or delay of justice, the court may permit the depositions to be taken and may issue orders like those authorized by Rules 34 and 35 . The depositions may be taken and used as any other deposition taken in a pending district-court action.
(c) Perpetuation by an Action.
This rule does not limit a court's power to entertain an action to perpetuate testimony.
§ 636. Jurisdiction, powers, and temporary assignment
How Current is This? (a) Each United States magistrate judge serving under this chapter shall have within the district in which sessions are held by the court that appointed the magistrate judge, at other places where that court may function, and elsewhere as authorized by law— (1) all powers and duties conferred or imposed upon United States commissioners by law or by the Rules of Criminal Procedure for the United States District Courts; (2) the power to administer oaths and affirmations, issue orders pursuant to section 3142 of title 18 concerning release or detention of persons pending trial, and take acknowledgements, affidavits, and depositions; (3) the power to conduct trials under section 3401 , title 18 , United States Code, in conformity with and subject to the limitations of that section; (4) the power to enter a sentence for a petty offense; and (5) the power to enter a sentence for a class A misdemeanor in a case in which the parties have consented. (b) (1) Notwithstanding any provision of law to the contrary— (A) a judge may designate a magistrate judge to hear and determine any pretrial matter pending before the court, except a motion for injunctive relief, for judgment on the pleadings, for summary judgment, to dismiss or quash an indictment or information made by the defendant, to suppress evidence in a criminal case, to dismiss or to permit maintenance of a class action, to dismiss for failure to state a claim upon which relief can be granted, and to involuntarily dismiss an action. A judge of the court may reconsider any pretrial matter under this subparagraph (A) where it has been shown that the magistrate judge's order is clearly erroneous or contrary to law. (B) a judge may also designate a magistrate judge to conduct hearings, including evidentiary hearings, and to submit to a judge of the court proposed findings of fact and recommendations for the disposition, by a judge of the court, of any motion excepted in subparagraph (A), of applications for posttrial [1] relief made by individuals convicted of criminal offenses and of prisoner petitions challenging conditions of confinement. (C) the magistrate judge shall file his proposed findings and recommendations under subparagraph (B) with the court and a copy shall forthwith be mailed to all parties. Within fourteen days after being served with a copy, any party may serve and file written objections to such proposed findings and recommendations as provided by rules of court. A judge of the court shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made. A judge of the court may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge. The judge may also receive further evidence or recommit the matter to the magistrate judge with instructions. (2) A judge may designate a magistrate judge to serve as a special master pursuant to the applicable provisions of this title and the Federal Rules of Civil Procedure for the United States district courts. A judge may designate a magistrate judge to serve as a special master in any civil case, upon consent of the parties, without regard to the provisions of rule 53(b) of the Federal Rules of Civil Procedure for the United States district courts. (3) A magistrate judge may be assigned such additional duties as are not inconsistent with the Constitution and laws of the United States. (4) Each district court shall establish rules pursuant to which the magistrate judges shall discharge their duties. (c) Notwithstanding any provision of law to the contrary— (1) Upon the consent of the parties, a full-time United States magistrate judge or a part-time United States magistrate judge who serves as a full-time judicial officer may conduct any or all proceedings in a jury or nonjury civil matter and order the entry of judgment in the case, when specially designated to exercise such jurisdiction by the district court or courts he serves. Upon the consent of the parties, pursuant to their specific written request, any other part-time magistrate judge may exercise such jurisdiction, if such magistrate judge meets the bar membership requirements set forth in section 631 (b)(1) and the chief judge of the district court certifies that a full-time magistrate judge is not reasonably available in accordance with guidelines established by the judicial council of the circuit. When there is more than one judge of a district court, designation under this paragraph shall be by the concurrence of a majority of all the judges of such district court, and when there is no such concurrence, then by the chief judge. (2) If a magistrate judge is designated to exercise civil jurisdiction under paragraph (1) of this subsection, the clerk of court shall, at the time the action is filed, notify the parties of the availability of a magistrate judge to exercise such jurisdiction. The decision of the parties shall be communicated to the clerk of court. Thereafter, either the district court judge or the magistrate judge may again advise the parties of the availability of the magistrate judge, but in so doing, shall also advise the parties that they are free to withhold consent without adverse substantive consequences. Rules of court for the reference of civil matters to magistrate judges shall include procedures to protect the voluntariness of the parties' consent. (3) Upon entry of judgment in any case referred under paragraph (1) of this subsection, an aggrieved party may appeal directly to the appropriate United States court of appeals from the judgment of the magistrate judge in the same manner as an appeal from any other judgment of a district court. The consent of the parties allows a magistrate judge designated to exercise civil jurisdiction under paragraph (1) of this subsection to direct the entry of a judgment of the district court in accordance with the Federal Rules of Civil Procedure. Nothing in this paragraph shall be construed as a limitation of any party's right to seek review by the Supreme Court of the United States. (4) The court may, for good cause shown on its own motion, or under extraordinary circumstances shown by any party, vacate a reference of a civil matter to a magistrate judge under this subsection. (5) The magistrate judge shall, subject to guidelines of the Judicial Conference, determine whether the record taken pursuant to this section shall be taken by electronic sound recording, by a court reporter, or by other means. (d) The practice and procedure for the trial of cases before officers serving under this chapter shall conform to rules promulgated by the Supreme Court pursuant to section 2072 of this title. (e) Contempt Authority.— (1) In general.— A United States magistrate judge serving under this chapter shall have within the territorial jurisdiction prescribed by the appointment of such magistrate judge the power to exercise contempt authority as set forth in this subsection. (2) Summary criminal contempt authority.— A magistrate judge shall have the power to punish summarily by fine or imprisonment, or both, such contempt of the authority of such magistrate judge constituting misbehavior of any person in the magistrate judge's presence so as to obstruct the administration of justice. The order of contempt shall be issued under the Federal Rules of Criminal Procedure. (3) Additional criminal contempt authority in civil consent and misdemeanor cases.— In any case in which a United States magistrate judge presides with the consent of the parties under subsection (c) of this section, and in any misdemeanor case proceeding before a magistrate judge under section 3401 of title 18 , the magistrate judge shall have the power to punish, by fine or imprisonment, or both, criminal contempt constituting disobedience or resistance to the magistrate judge's lawful writ, process, order, rule, decree, or command. Disposition of such contempt shall be conducted upon notice and hearing under the Federal Rules of Criminal Procedure. (4) Civil contempt authority in civil consent and misdemeanor cases.— In any case in which a United States magistrate judge presides with the consent of the parties under subsection (c) of this section, and in any misdemeanor case proceeding before a magistrate judge under section 3401 of title 18 , the magistrate judge may exercise the civil contempt authority of the district court. This paragraph shall not be construed to limit the authority of a magistrate judge to order sanctions under any other statute, the Federal Rules of Civil Procedure, or the Federal Rules of Criminal Procedure. (5) Criminal contempt penalties.— The sentence imposed by a magistrate judge for any criminal contempt provided for in paragraphs (2) and (3) shall not exceed the penalties for a Class C misdemeanor as set forth in sections 3581 (b)(8) and 3571 (b)(6) of title 18 . (6) Certification of other contempts to the district court.— Upon the commission of any such act— (A) in any case in which a United States magistrate judge presides with the consent of the parties under subsection (c) of this section, or in any misdemeanor case proceeding before a magistrate judge under section 3401 of title 18 , that may, in the opinion of the magistrate judge, constitute a serious criminal contempt punishable by penalties exceeding those set forth in paragraph (5) of this subsection, or (B) in any other case or proceeding under subsection (a) or (b) of this section, or any other statute, where— (i) the act committed in the magistrate judge's presence may, in the opinion of the magistrate judge, constitute a serious criminal contempt punishable by penalties exceeding those set forth in paragraph (5) of this subsection, (ii) the act that constitutes a criminal contempt occurs outside the presence of the magistrate judge, or (iii) the act constitutes a civil contempt, the magistrate judge shall forthwith certify the facts to a district judge and may serve or cause to be served, upon any person whose behavior is brought into question under this paragraph, an order requiring such person to appear before a district judge upon a day certain to show cause why that person should not be adjudged in contempt by reason of the facts so certified. The district judge shall thereupon hear the evidence as to the act or conduct complained of and, if it is such as to warrant punishment, punish such person in the same manner and to the same extent as for a contempt committed before a district judge. (7) Appeals of magistrate judge contempt orders.— The appeal of an order of contempt under this subsection shall be made to the court of appeals in cases proceeding under subsection (c) of this section. The appeal of any other order of contempt issued under this section shall be made to the district court. (f) In an emergency and upon the concurrence of the chief judges of the districts involved, a United States magistrate judge may be temporarily assigned to perform any of the duties specified in subsection (a), (b), or (c) of this section in a judicial district other than the judicial district for which he has been appointed. No magistrate judge shall perform any of such duties in a district to which he has been temporarily assigned until an order has been issued by the chief judge of such district specifying (1) the emergency by reason of which he has been transferred, (2) the duration of his assignment, and (3) the duties which he is authorized to perform. A magistrate judge so assigned shall not be entitled to additional compensation but shall be reimbursed for actual and necessary expenses incurred in the performance of his duties in accordance with section 635 . (g) A United States magistrate judge may perform the verification function required by section 4107 of title 18 , United States Code. A magistrate judge may be assigned by a judge of any United States district court to perform the verification required by section 4108 and the appointment of counsel authorized by section 4109 of title 18 , United States Code, and may perform such functions beyond the territorial limits of the United States. A magistrate judge assigned such functions shall have no authority to perform any other function within the territory of a foreign country. (h) A United States magistrate judge who has retired may, upon the consent of the chief judge of the district involved, be recalled to serve as a magistrate judge in any judicial district by the judicial council of the circuit within which such district is located. Upon recall, a magistrate judge may receive a salary for such service in accordance with regulations promulgated by the Judicial Conference, subject to the restrictions on the payment of an annuity set forth in section 377 of this title or in subchapter III of chapter 83, and chapter 84, of title 5 which are applicable to such magistrate judge. The requirements set forth in subsections (a), (b)(3), and (d) of section 631 , and paragraph (1) of subsection (b) of such section to the extent such paragraph requires membership of the bar of the location in which an individual is to serve as a magistrate judge, shall not apply to the recall of a retired magistrate judge under this subsection or section 375 of this title. Any other requirement set forth in section 631 (b) shall apply to the recall of a retired magistrate judge under this subsection or section 375 of this title unless such retired magistrate judge met such requirement upon appointment or reappointment as a magistrate judge under section 631 .
Local Government Issue CERCLA Provision Relevant EPA Documents or Guidance (if any)
Involuntary Acquisition
§ 101(20)(D)
• Policy on Interpreting CERCLA Provisions Addressing Lenders and Involuntary Acquisitions by Government Entities (EPA/OSRE, 6/30/1997)
• Policy on CERCLA Enforcement Against Lenders and Government Entities that Acquire Property Involuntarily (EPA/DOJ, 9/22/2005)
• Municipal Immunity from CERCLA Liability for Property Acquired through Involuntary State Action (EPA/OSRE/OSWER, 10/20/1995)
• Fact Sheet: The Effect of Superfund on Involuntary Acquisitions of Contaminated Property by Government Entities (EPA/OSRE, 12/31/1995)
Third Party and Innocent Landowner Defenses
§§ 107(b)(3), 101(35)(A)(ii)
• Policy on Interpreting CERCLA Provisions Addressing Lenders and Involuntary Acquisitions by Government Entities (EPA/OSRE, 6/30/1997) • Interim Guidance Regarding Criteria Landowners Must Meet in Order to Qualify for Bona Fide Prospective Purchasers, Contiguous Property Owner, or Innocent Landowner Limitations on CERCLA Liability ("Common Elements") (EPA/OSRE, 3/6/2003)
Bona Fide Prospective Purchaser
§ 101(40) and § 107(r)
• Interim Guidance Regarding Criteria Landowners Must Meet in Order to Qualify for Bona Fide Prospective Purchasers, Contiguous Property Owner, or Innocent Landowner Limitations on CERCLA Liability ("Common Elements") (EPA/OSRE, 3/6/2003)
• Issuance of CERCLA Model Agreement and Order on Consent for Removal Action by a Bona Fide Prospective Purchaser (OSRE/USDOJ 11/27/2006)
• Enforcement Discretion Guidance Regarding the Applicability of the Bona Fide Prospective Purchaser Definition in CERCLA § 101(40) to Tenants (OSRE/OSWER 1/19/2009)
• Enforcement Discretion Guidance Regarding the Applicability of the Bona Fide Prospective Purchaser Definition in CERCLA Section 101(40) to Tenants: Frequently Asked Questions (OSRE 11/1/2009)
Windfall Liens
§ 107(r)
• Interim Enforcement Discretion Policy concerning Windfall Liens Under Section 107(r) of CERCLA (EPA/DOJ 7/16/2003)
• Windfall Lien Guidance: Frequently Asked Questions (OSRE 4/1/2008)
• Windfall Lien Administrative Procedures (OSRE 1/8/2008)
Local Government Issue
CERCLA Provision
Relevant EPA Documents or Guidance (if any)
Brownfield § 104(k)(4)
• Brownfields Assessment Pilot/Grants at
Grants
and (6)
http://epa.gov/brownfields/assessment_grants.htm
• Revolving Loan Fund Pilot/Grants at http://epa.gov/brownfields/rlflst.htm
• Cleanup Grants at http://epa.gov/brownfields/cleanup_grants.htm
• Area-Wide Planning Pilot Program at
http://www.epa.gov/brownfields/areawide_grants.htm
• Brownfield Grant Guidelines Frequently Asked Questions at
http://www.epa.gov/brownfields/proposal_guides/faqpguid.htm
Institutional §§ 101(40)(F), • Institutional Controls: A Citizen's Guide to Understanding Institutional Controls 107(q)(A)(V), Controls at Superfund, Brownfields, Federal Facilities, Underground 101(35)(A) Storage Tank, and Resource Conservation and Recovery Act Cleanups (EPA/OSWER 2/2005)
• Institutional Controls: A Guide to Implementing, Monitoring, and Enforcing Institutional Controls at Superfund, Brownfields, Federal Facility, UST and RCRA Corrective Action Cleanups (EPA Draft 2/2003)
• Institutional Controls: A Site Manager's Guide to Identifying, Evaluating and Selecting Institutional Controls at Superfund and RCRA Corrective Action Cleanups (EPA/OSWER 9/2000)
State §§ 101(41), • To see state-specific voluntary cleanup programs Memoranda of Voluntary 128 Agreement, please see Cleanups and http://www.epa.gov/brownfields/state_tribal/moa_mou.htm Memoranda of Agreement
Contact Information
If you have any questions about this fact sheet, please contact Cecilia De Robertis of EPA’s
Office of Site Remediation Enforcement at 202-564-5132 or derobertis.cecilia@epa.gov.
Disclaimer: This document is provided solely as general information to highlight certain aspects of a more comprehensive program. It does not provide legal advice, have any legally binding effect, or expressly or implicitly create, expand, or limit any legal rights, obligations, responsibilities, expectations, or benefits for any person. This document is not intended as a substitute for reading the statute or the guidance documents described in this document. It is the
local government’s sole responsibility to ensure that it obtains and retains liability protections.
EPA does not offer any guarantees or warranties for or related to acquisition of a contaminated
property or formerly contaminated property. It is also the local government’s sole responsibility
to maintain liability protection status as a contiguous property owner, bona fide prospective purchaser, or innocent land owner.
New Energy Department office seeks ideas for energy solutions on tribal lands
It's been a humble beginning for the Energy Department's new Office of Indian Energy Policy and Programs.
The creation of the office was announced in mid-December at President Obama's second tribal nation's gathering in Washington, D.C.
"We know that tribal lands hold a great capacity for solar, wind and geothermal projects, and we are committed to helping you unlock that potential," said Interior Secretary Ken Salazar at the gathering.
The office "will leverage the department's resources to promote tribal energy development," he said.
Almost three months later, the office is getting off the ground.
Its one Internet page [http://www.energy.gov/indianenergy/] can be found at www.energy.gov/indianenergy. Last week, you couldn't get there from the Energy Department's main page, but that will change soon, a spokeswoman said.
The office's history is confusing.
In 2007, the Bush Administration issued a statement [http://www.energy.gov/news/archives/5493.htm] saying it established the Office of Indian Energy Policy and Programs, leading to questions about what happened during that first effort.
Given such a past, it's easy to wonder about the office's future. Is the Obama Administration committed to it? How long it will be around? What will it accomplish?
On Friday, The Arctic Sounder interviewed the new director, Tracey LeBeau, an enrolled member of the Cheyenne River Sioux tribe from South Dakota.
Starting March 16 in Reno, Nev., the office will host a nationwide series of meetings to understand energy needs in Indian Country. The information gathered at those nine meetings will help create marching orders for the new effort.
The meeting in Alaska - home to outrageous rural energy prices and more than one-third of the nation's tribes - will be held last, on April 14. It will be an all-day meeting, rather than the half-day meetings planned in the Lower 48.
Question: The Office of Indian Energy was ... launched at the tribal nation's gathering Obama held a few months ago. But (it was apparently launched in 2007 too, with Steve Morello named as director). So are there two such offices? Or did this one in 2007 go defunct? How can we have a new office now and a new office then with the same name?
I knew Steve Morello, and vaguely how it was going back then. It's my understanding he was brought in and he was placed under Congressional and Intergovernmental Affairs. There was no office formally created to house either this office or him as an employee. So up until January of this year, I guess you could say the Office of Indian Energy Policy and Programs was around, but it wasn't stood up as a formal office. And it had no budget or programmatic, administrative support until this was formally created last month.
I should clarify, it had appropriations when the Obama Administration came in. The office was appropriated for 2009 and 2010, so there was the beginning of some support in that regard. But the office was not formally stood up until last month.
I understand that President Obama has provided a much different feel toward Indian tribes than we've gotten perhaps from any other president ever, in terms of his support for Indian tribes. But I have to ask, in light of this office appearing and disappearing in 2007, is this the real deal, or are you going to disappear in a couple months?
I would say the department has put forward budget requests for this office consistently, since Secretary Chu has been on.
So far in 2012, this office was separately identified and a budget request was made, so to the degree Congress continues to support those budget requests, like any other office, we'll continue to be here.
And I'm in the process of trying to put together a staffing plan not just for this year, but a longer-term staffing plan for the Office of Indian Energy. I do have a deputy director that has come on recently and we're starting to put together a staffing plan for the longer term.
How many people will you have on your staff?
We are in the process of thinking through our staffing plan. I'm only a little hesitant about saying how many people we'll have in our office because I'm so new into this, and this is a brand new office. So before we start announcing the building-out of programs and that sort of thing, which will drive some of our decisions about how to staff, we need to get out into Indian Country and talk to Indian Country and get a solid consensus with Indian Country.
...
If we go out in Indian Country and it's very clear to us that we hear loud and clear, we want a specific and large initiative, say, on electricity transmission, or electrification, that will drive a very different staffing scenario, than if they say let's just focus on a residential solar initiative.
What's the annual budget?
The annual requested budget has been $1.5 million. ... We are trying to narrow it down to exactly how much appropriated funds we do have available to this office and to Indian Country.
Why was this office created?
It was created in the Energy Policy Act of 2005. The language is fairly broad, but it was created to encourage and coordinate and manage programs for tribes related to energy development and energy capacity building and reduce energy costs in Indian Country and to look at electrification of Indian lands and homes.
And so it's pretty broad. I think that was the right approach and right way to do it, because there's so much need out there. But our shorter-term strategy is to get out and talk to tribes directly and help us narrow it down, because we don't want to establish an office that is spread out too thin. We'd rather make sure we're hitting Indian Country's needs and priorities and focus in on them in the short-term.
As director, do you have some personal goals?
I've been in the energy development arena my entire career. I've never worked for the federal government before. But on occasion I was fortunate enough to work on some tribal energy projects, so I have that perspective of where I think there are things that government can do better to facilitate energy development in Indian Country.
So one thing I could say - I guess it's a personal goal and it's definitely one of the issues we have heard just in our short time being here, directly from tribal leaders - has been a high degree of interest and I think opportunity for the Department of Energy to take a lead role in working across the different federal agencies that are also involved in some sort of role in energy development in Indian Country.
There's a lot of focus with the Administration in clean energy development, and there's a lot of agencies doing things in this sphere, and some of the feedback we're getting from tribes pretty consistently has been, 'Wow, there's so many people doing things in this area. It'll be helpful to understand how these programs can work together, and how we can leverage programs and resources to get projects that the tribes are wanting to see happen.'
So one of the first things we started doing is meeting and starting to discuss ways to collaborate and work more closely with agencies. For example, the U.S. Department of Agriculture has got a lot of programs and interests and Secretary Vilsack has been pretty outspoken about wanting to see clean energy programs in Indian Country and so much of Indian Country is in rural America, so that definitely falls in his wheelhouse. So working with USDA, Environmental Protection Agency, with the Department of Interior, which we're talking actively with right now to identify areas and programs where we can collaborate.
In (rural) Alaska, we've got really high energy costs. I don't know if it will get even worse with the higher price of oil that's been recently spiking. Do you have any ideas yet how Alaska can not only tap into this program, but reduce its energy costs?
We are very, very interested. We are going to be there April 14, including me. Everywhere else we're going to be doing half-day roundtable discussions, but in Anchorage we want to do a whole day, because we know the need is so serious and so great. And we know folks will be coming from a long ways, so we're going to do a whole day. We haven't found the venue yet, but we'll update the Web site as we find the venue.
We want to hear from people directly. We realize it's a special, very unique place, and it's an area where we want to pay some special attention to in terms of perhaps new approaches on a small, community scale or innovative technology level.
I'm not certain what you mean by new approaches on community scale or smaller scale development. Can you tell me more about that?
In general, a lot of the federal agencies have paid a lot of attention and focused funds on the big, commercial scale projects in Indian Country. And that makes sense, because a lot of tribes in the Lower 48 are looking at some really large build-out projects. That can work in Alaska in some cases, but there are also some more practical, driving needs in Alaska, just basic residential energy cost issues. So residential applications, community-scale applications, like distributed-energy projects. That's something we'll pay special attention to, and try to work with the communities up there to see how we can get some of these projects up and running.
How should tribes get in touch with you or your staff to learn more?
There's a couple ways. We will be having a link on that Web page, identifying numbers and emails and that sort of thing. But we also have a dedicated email address set up. It's listed on the letter, tribalconsultation@hq.doe.gov. So any comments they have about the conference or the upcoming summit, that's where we're asking them asking them to send those questions or comments to.
In President Obama's Executive Order, “ Improving Regulation and Regulatory Review ,” he instructed executive branch agencies to begin retrospective analyses of their existing regulations. The goal is to determine whether rules “may be outmoded, ineffective, insufficient, or excessively burdensome, and to modify, streamline, expand, or repeal them in accordance with what has been learned.”
For that process to have any value, agencies must undertake it in good faith and engage in serious self-scrutiny. Unfortunately, bureaucracies are usually more interested in justifying their existence and activities, and the regulatory review is likely to be misused for that purpose.
WASHINGTON – A report released today by the U.S. Environmental Protection Agency (EPA) estimates that the benefits of reducing fine particle and ground level ozone pollution under the 1990 Clean Air Act amendments will reach approximately $2 trillion in 2020 while saving 230,000 people from early death in that year alone. The report studied the effects of the Clean Air Act updates on the economy, public health and the environment between 1990 and 2020.
Diane Katz at the Heritage Foundation delves into the flawed assumptions, methodological gimmicks, and general spinning in a Webmemo, “ Coming Clean on Regulatory Costs and Benefits “:
The report is astonishing for a variety of reasons—not the least of which is the enormous discrepancy between the Obama Administration's numbers and those of a similar previous study by the Clinton Administration EPA, which pegged the economic benefits of the act to be $170 billion (or 91 percent less than the Obama EPA's estimates). This magnitude of difference is explained by the unreliable assumptions underlying the Obama EPA's wildly inflated claims.
Nevertheless, newspaper headlines across the country—and throughout the blogosphere—trumpeted the new cost–benefit calculation as proving regulation to be unquestionably beneficial. The media's lack of scrutiny is particularly troublesome because, in this instance, the EPA is evaluating itself. Indeed, for every step beyond the agency's press release, the questionable methodology and leaps of logic are painfully obvious.
As Katz summarizes: “The benefit estimates in the report range from $250 million to $5.7 trillion—a vast difference that indicates vast uncertainty about the EPA's claims.” This from an Administration that has pledged itself to “sound science.”
Today's Washington Examiner reports that Chairman Fred Upton (R-MI) and leaders of the House Energy and Commerce Committee are holding the EPA to account, working to stop the agency from exceeding its authority and misusing the Clean Air Act to establish a national regime of greenhouse gas regulation. The committee's Energy and Power Subcommittee holds two hearings this week that offer an opportunity to examine the EPA's activities, including ginned-up analyses: Tuesday on Climate Science and EPA's Greenhouse Gas Regulations , and Friday on the EPA's budget .
The suspense is over. Inside EPA just released EPA's December 2010 Draft Guidance describing how EPA and the Army Corps of Engineers intend to identify jurisdictional waters under the Clean Water Act (CWA) and implement the U.S. Supreme Court's decisions in Rapanos and SWANCC. The Agency has yet to formally release the 2010 Draft Guidance.
As anticipated, the 2010 Draft Guidance significantly expands the scope of waters over which EPA and the Corps assert jurisdiction. Indeed, the Draft Guidance unabashedly exclaims that, “the Agencies expect that the numbers of waters found to be subject to CWA jurisdiction will increase significantly compared to practices under the 2003 SWANCC guidance and the 2008 Rapanos guidance.” The Draft Guidance takes a dig at the 2008 Rapanos guidance stating that the older guidance “reflected a policy choice to interpret Justice Kennedy's opinion narrowly, resulting in fewer waterbodies found to be jurisdictional under the CWA than under a more faithful interpretation .”
The Draft Guidance rarely misses an opportunity to expand the scope of CWA jurisdiction as interpreted by the 2008 Rapanos guidance. For example, while the 2008 Rapanos guidance focused only on the CWA 404 regulations at issue in the Rapanos case, the 2010 Draft Guidance applies to decisions concerning “whether a waterbody is subject to any of the programs authorized under the CWA”, and expressly includes CWA sections 402 (NPDES), 311 (oil spill), 303 (water quality standards and TMDLs) and 401 (state water quality certification) programs.
The 2010 Draft Guidance begins with a broad interpretation of the meaning of “traditional navigable waters” and “interstate waters” for purposes of CWA jurisdiction. It says that waters will be considered “traditional navigable waters” if “they are susceptible for being used in the future for commercial navigation, including waterborne recreation . . . . A determination that a water is susceptible to future commercial navigation, including commercial waterborne recreation, should be supported by evidence .” Of course it should! In contrast, the 2008 Raponos guidance mandated that a likelihood of future commercial navigation, including waterborne commercial recreation, “must be clearly documented” and “will not be supported when evidence is insubstantial or speculative.”
The 2008 Rapanos guidance provided useful guidelines for the regulated community to determine what features would not be subject to CWA jurisdiction. For example, the “Summary of Key Points” in the 2008 Rapanos guidance provided that the agencies generally would not assert CWA jurisdiction over “swales or erosional features ( e .g ., gullies, small washes characterized by low volume, infrequent, or short duration flow)”, or over “ditches (including roadside ditches) excavated wholly in and draining only uplands and that do not carry a relatively permanent flow of water.”
This reasonable interpretation of features that are outside the scope of CWA jurisdiction under Rapanos is eliminated from the “Summary of Key Points” in the 2010 Draft Guidance. Later text in the 2010 Draft Guidance does retain the concept that such features generally are not subject to CWA jurisdiction: “Swales or erosional features (e.g., gullies, small washes characterized by low volume, infrequent, or short duration flow) are generally not waters of the United States because they are not tributaries or they do not have a significant nexus to downstream traditional navigable waters or interstate waters.” The Guidance emphasizes that “[e]rosional features such as gullies and rills are not part of the tributary system, are not jurisdictional waters, and shall not be assessed as part of the significant nexus determination. Natural and man-made swales are also not tributaries for purposes of this guidance.”
However, the 2010 Draft Guidance “clarifies” that under certain circumstances ditches may be jurisdictional. If a ditch has a bed and bank and an ordinary high water mark, and connects directly or indirectly to a traditional navigable water, it is considered a “tributary” potentially subject to CWA jurisdiction like any other tributary, if: a) it is a natural stream that has been altered (e.g., channelized, straightened or relocated); b) it is excavated in waters of the U.S., including wetlands; c) it has relatively permanent flowing or standing water; or d) the ditch connects two or more jurisdictional waters of the U.S. If a ditch or swale includes areas that meet the regulatory definition of “wetlands”, the ditch or swale must be evaluated to see if it qualifies as wetlands for purposes of CWA coverage.
The 2008 Rapanos guidance stated that the agencies will assert jurisdiction over non-navigable tributaries of traditional navigable waters that are relatively permanent where the tributaries “typically flow year round or have continuous flow at least seasonally ( e.g ., typically three months).” The 2010 Draft Guidance deletes the “continuous flow” and “three month” clarifications, and instead asserts that non-navigable tributaries are subject to CWA jurisdiction if “they are relatively permanent, meaning at least seasonal.” The 2010 Draft Guidance explains these changes were made because the “time period constituting ‘seasonal' will vary across the country. Rather than having distinct, rigid boundaries, stream reaches classified as perennial, intermittent, and ephemeral may more accurately be described as dynamic zones within stream networks.”
Under the 2010 Draft Guidance, more tributaries would be jurisdictional. The Draft Guidance takes the position that “a tributary continues as far as a channel (i.e., bed and bank) is present. A natural or man-made break (e.g., outcrop, underground flow, dam, weir, diversion or similar break) in the presence of a bed and bank or ordinary high water mark [OHWM] does not establish the limit of a tributary in cases where a bed and bank and an OHWM can be identified upstream and downstream of the break.” This position is likely to substantially increase the number of jurisdictional tributaries, especially in the desert southwest, where many washes have miles upon miles where no beds and banks with identifiable OHWMs exist as a result of underground flows, outcrops, and man-made breaks.
The 2010 Draft Guidance indicates that tributaries with an OHWM and identifiable beds and banks will generally be considered jurisdictional if they are “part of a tributary system to a traditional navigable water or interstate water, and therefore can transport pollutants, sediments, flood waters and other materials to a traditional navigable water.” In contrast, the 2008 guidance provided that these were simply factors to evaluate in determining whether a significant nexus exists.
The 2010 Draft Guidance interprets the word “significant” in “significant nexus” to mean “more than speculative or insubstantial.” The Guidance suggests that Justice Kennedy likely meant that “‘significant' includes having a predictable or observable chemical, physical or biological functional relationship.” It is debatable whether Justice Kennedy intended the word ‘significant' to have this more expansive meaning.
At this time, the fate of the 2010 Draft Guidance remains uncertain. The Guidance faces strong opposition from various industry groups and Congressional efforts to block its issuance. And it remains to be seen whether and the extent to which the Draft Guidance, if and when formally issued by EPA, will differ from the controversial December 2010 Draft.
The BigThink website documents that the federal government controls more of Utah – on a percentage basis – than 47 other states, putting its brand on some 35,000 square miles of land there.
Now in what could be described as a Sagebrush Rebellion on steroids, a resolution advancing quickly in the state Legislature asks the feds to relinquish their control over that land.
"Be it resolved, that the Legislature of the state of Utah calls on the United States, through their agent, Congress, to relinquish to the state of Utah all right, title, and jurisdiction in those lands that were committed to the purposes of this state by terms of its Enabling act compact with them and that now reside within the state as public lands managed by the Bureau of Land Management that were reserved by Congress after the date of Utah statehood," says the State Jurisdiction of Federally Managed Lands Joint Resolution.
Its chief sponsor is Rep. Roger Barrus, and it already has been approved in the House and advanced to the Senate.
It continues, "Be it further resolved, that a copy of this resolution be sent to the Secretary of the United States Department of Interior, to the United States Director of the Federal Bureau of Land Management, to the Majority Leader of the United States Senate, to the Speaker of the United States House of Representatives, and to the members of Utah's Congressional Delegation."
While a resolution does not have the force of law, it was through resolutions that many of the articles through which states are in rebellion against their federal government today got started.
Those issues include firearms freedom acts, rejection of REAL ID, rejection of federal marijuana laws and a refusal to apply interstate commerce limits to intrastate commerce.
It is in the West where most of the federal government's 650 million acres of land is located. Some 22 million is in Utah.
According to BigThink, the lands are used as military bases, parks, reservations and are leased for forestry and mining operations. In Nevada, the federal government controls 84 percent of the land, in Alaska, 69 percent, and in Utah 57 percent. Other states are Oregon, 53 percent; Idaho, 50 percent; Arizona, 48 percent; California , 45 percent; Wyoming, 42 percent, New Mexico, 41 percent and Colorado, 36 percent.
Agencies with say-so over the acreage include the BLM, Forest Service, Fish and Wildlife Service, National Park Service, Bureau of Indian Affairs, Department of Defense, Corps of Engineers and Bureau of Reclamation.
The resolution cites the Constitutional Convention's aims that "state governments would clearly retain all the rights of sovereignty and independence which they before had and which were not exclusively delegated to the United States Congress."
It explains that "the federal trust respecting public lands obligates the United States, through their agent, Congress, to extinguish both their governmental jurisdiction and their title on the public lands that are held in trust by the United States for the states in which they are located."
If that is not done, the resolution said, "the state is denied the same complete and independent sovereignty and jurisdiction that was expressly retained by the original states, and its citizens are denied the political right to establish or administer their own republican self-governance as is their right under the Equal Footing Clause."
The resolution explains that use of the more than 22 million acres at issue "has been eroded by an oppressive and over-reaching federal management agenda that has adversely impacted the sovereignty and the economies of the state of Utah and local governments."
Now, suddenly, it explains, the Department of Interior has "arbitrarily created a new category of lands, denominated 'Wild Lands,' and has superimposed these mandatory protective management provisions upon BLM operations and planning decisions in violation of the provisions of the Federal Land Policy and Management Act, the provisions of the Administrative Procedures Act, and Presidential Executive Order 13563 concerning openness in policymaking."
The result is Utah officials feel the state is better off running land inside its borders itself than having bureaucrats in Washington making those decisions.
The Sagebrush Rebellion developed on a small scale during the 1970s when federal bureaucrats imposed a large number of new rules and regulations on lands throughout the West, interrupting business and other uses of the lands that had been going on for years.
Generally, the state proposals would establish a commission for the review of "all federal laws and regulations for constitutionality." State officials then would decide whether they qualify and could be in effect in the state.
The plan has been promoted by The Patriots Union, a Wyoming-based organization that is taking on the battle against what it considers an overreaching federal government.
WND also has reported that a large number of states are battling Washington over specific issues state lawmakers and governments believe they should decide.
Attorney Stephen Pidgeon, a spokesman for the Patriots Union, said states are starting to assert their rights under the Constitution.
He said the idea is as old as the administration of Jimmy Carter. At that time it was called the "Sagebrush Rebellion," when Western states fought back against Washington's control of land inside their borders, especially oil-rich and coal-filled land resources.
"There is no constitutional right for the federal government to hold natural resources, federal parks," he said. "For states such as Utah, which has been fighting with the federal government to regain ownership of its own lands, [this nullification plan] offers a strong argument to chase the government off its property."
The issue is being forced into the headlines by President Obama's law that effectively nationalizes the decision-making process for health care.
But states also have raised the issues of currency, the REAL ID Act, marijuana laws, guns, health care regulation and others.
"Under the Constitution states are required to use coinage of gold and silver," Pidgeon said. "But the federal government has inflicted on the states the fraud of a debased fiat currency.
"This is the best mechanism that has been developed to date to put the beast back in the cage," he said.
Officials with the Patriots Union say dozens of states are working on the idea of a nullification plan.
Major components of the proposal are:
Establish the constitutional grounds for state nullification;
Establish a swift method for nullification of any unconstitutional federal act, past, present or future;
Establish that only the U.S. Supreme Court has "original jurisdiction" under Article III of the U.S. Constitution;
Establish that the people (not the courts) have the final word;
Establish the very limited role and power of the federal government under the Ninth and Tenth Amendments;
Reject modern expansions of power via misinterpretations of the commerce, welfare and supremacy clauses
Regain state and citizen control over the runaway Fed.
SANDPOINT — A determined Bonner County couple who contends the U.S. Environmental Protection Agency is unfairly interfering with their right to develop a homesite at Priest Lake is taking their fight to the nation's high court.
Counsel for Mike and Chantelle Sackett petitioned the U.S. Supreme Court last week to consider a series of lower court rulings concerning an EPA determination that federally regulated wetlands are present on their half-acre parcel in a Priest Lake subdivision.
The Sacketts sued EPA over the wetlands determination in U.S. District Court, but a federal judge dismissed the action in 2008 and entered a judgment in favor of EPA. The couple sought redress through the U.S. 9th Circuit Court of Appeals last year, but a three-judge panel ruled judicial review is not available.
A petition for the entire bench of the 9th Circuit to hear the request was also declined.
The Sacketts petitioned the high court to take their case and rule that they have the right to challenge EPA's wetlands determination.
“The issue in this case is simple, but critically important to all property owners and everyone who values fair play and due process,” said Damien Schiff of the Pacific Legal Foundation, which is representing the Sacketts pro bono. “When bureaucrats try to impose their will on private property, shouldn't the owners be permitted their day in court to challenge the government's claim of control?”
The PLF, which bills itself as a watchdog group that litigates for property rights and a balanced approach to environmental regulations, is petitioning the higher court to a review lower court's judgment for reversible error.
The group contends the 9th Circuit ruling foists an intolerable choice on landowners — spend hundreds of thousands of dollars applying for a permit of questionable need or risk an equally costly enforcement action with fines and penalties.
The PLF also argues the 9th Circuit's ruling conflicts with an 11th Circuit ruling regarding review procedures for federal compliance orders.
The Sacketts have insisted on a hearing to test EPA's jurisdiction of their property.
By Josiah Ryan - 03/06/11 12:36 PM ET The Environmental Protection Agency (EPA) is operating outside the authority of law in regards to its regulation of coal mining permits and must be curbed, Senate Minority Leader Mitch McConnell (R-Ky.) asserted on the Senate floor Friday.
“The EPA has turned the permitting process into a back-door means of shutting down coal mines by sitting on permits indefinitely," said McConnell. “What they're doing is outside the scope of their authority and the law.”
The White House
Office of the Press Secretary
For Immediate Release January 18, 2011
Improving Regulation and Regulatory Review - Executive Order
By the authority vested in me as President by the Constitution and the laws of the United States of America, and in order to improve regulation and regulatory review, it is hereby ordered as follows:
Section 1 . General Principles of Regulation . (a) Our regulatory system must protect public health, welfare, safety, and our environment while promoting economic growth, innovation, competitiveness, and job creation. It must be based on the best available science. It must allow for public participation and an open exchange of ideas. It must promote predictability and reduce uncertainty. It must identify and use the best, most innovative, and least burdensome tools for achieving regulatory ends. It must take into account benefits and costs, both quantitative and qualitative. It must ensure that regulations are accessible, consistent, written in plain language, and easy to understand. It must measure, and seek to improve, the actual results of regulatory requirements.
(b) This order is supplemental to and reaffirms the principles, structures, and definitions governing contemporary regulatory review that were established in Executive Order 12866 of September 30, 1993. As stated in that Executive Order and to the extent permitted by law, each agency must, among other things: (1) propose or adopt a regulation only upon a reasoned determination that its benefits justify its costs (recognizing that some benefits and costs are difficult to quantify); (2) tailor its regulations to impose the least burden on society, consistent with obtaining regulatory objectives, taking into account, among other things, and to the extent practicable, the costs of cumulative regulations; (3) select, in choosing among alternative regulatory approaches, those approaches that maximize net benefits (including potential economic, environmental, public health and safety, and other advantages; distributive impacts; and equity); (4) to the extent feasible, specify performance objectives, rather than specifying the behavior or manner of compliance that regulated entities must adopt; and (5) identify and assess available alternatives to direct regulation, including providing economic incentives to encourage the desired behavior, such as user fees or marketable permits, or providing information upon which choices can be made by the public.
(c) In applying these principles, each agency is directed to use the best available techniques to quantify anticipated present and future benefits and costs as accurately as possible. Where appropriate and permitted by law, each agency may consider (and discuss qualitatively) values that are difficult or impossible to quantify, including equity, human dignity, fairness, and distributive impacts.
Sec. 2 . Public Participation . (a) Regulations shall be adopted through a process that involves public participation. To that end, regulations shall be based, to the extent feasible and consistent with law, on the open exchange of information and perspectives among State, local, and tribal officials, experts in relevant disciplines, affected stakeholders in the private sector, and the public as a whole.
(b) To promote that open exchange, each agency, consistent with Executive Order 12866 and other applicable legal requirements, shall endeavor to provide the public with an opportunity to participate in the regulatory process. To the extent feasible and permitted by law, each agency shall afford the public a meaningful opportunity to comment through the Internet on any proposed regulation, with a comment period that should generally be at least 60 days. To the extent feasible and permitted by law, each agency shall also provide, for both proposed and final rules, timely online access to the rulemaking docket on regulations.gov, including relevant scientific and technical findings, in an open format that can be easily searched and downloaded. For proposed rules, such access shall include, to the extent feasible and permitted by law, an opportunity for public comment on all pertinent parts of the rulemaking docket, including relevant scientific and technical findings.
(c) Before issuing a notice of proposed rulemaking, each agency, where feasible and appropriate, shall seek the views of those who are likely to be affected, including those who are likely to benefit from and those who are potentially subject to such rulemaking.
Sec. 3 . Integration and Innovation . Some sectors and industries face a significant number of regulatory requirements, some of which may be redundant, inconsistent, or overlapping. Greater coordination across agencies could reduce these requirements, thus reducing costs and simplifying and harmonizing rules. In developing regulatory actions and identifying appropriate approaches, each agency shall attempt to promote such coordination, simplification, and harmonization. Each agency shall also seek to identify, as appropriate, means to achieve regulatory goals that are designed to promote innovation.
Sec. 4 . Flexible Approaches . Where relevant, feasible, and consistent with regulatory objectives, and to the extent permitted by law, each agency shall identify and consider regulatory approaches that reduce burdens and maintain flexibility and freedom of choice for the public. These approaches include warnings, appropriate default rules, and disclosure requirements as well as provision of information to the public in a form that is clear and intelligible.
Sec. 5 . Science . Consistent with the President's Memorandum for the Heads of Executive Departments and Agencies,
"Scientific Integrity" (March 9, 2009), and its implementing guidance, each agency shall ensure the objectivity of any scientific and technological information and processes used to support the agency's regulatory actions.
Sec. 6 . Retrospective Analyses of Existing Rules . (a) To facilitate the periodic review of existing significant regulations, agencies shall consider how best to promote retrospective analysis of rules that may be outmoded, ineffective, insufficient, or excessively burdensome, and to modify, streamline, expand, or repeal them in accordance with what has been learned. Such retrospective analyses, including supporting data, should be released online whenever possible.
(b) Within 120 days of the date of this order, each agency shall develop and submit to the Office of Information and Regulatory Affairs a preliminary plan, consistent with law and its resources and regulatory priorities, under which the agency will periodically review its existing significant regulations to determine whether any such regulations should be modified, streamlined, expanded, or repealed so as to make the agency's regulatory program more effective or less burdensome in achieving the regulatory objectives.
Sec. 7 . General Provisions . (a) For purposes of this order, "agency" shall have the meaning set forth in section 3(b) of Executive Order 12866.
(b) Nothing in this order shall be construed to impair or otherwise affect:
(i) authority granted by law to a department or agency, or the head thereof; or
(ii) functions of the Director of the Office of Management and Budget relating to budgetary, administrative, or legislative proposals.
(c) This order shall be implemented consistent with applicable law and subject to the availability of appropriations.
(d) This order is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person.
BARACK OBAMA
THE WHITE HOUSE,
January 18, 2011.
The White House
Office of the Press Secretary
For Immediate Release December 14, 2010
Executive Order--White House Council for Community Solutions
- - - - - - -
WHITE HOUSE COUNCIL FOR COMMUNITY SOLUTIONS
By the authority vested in me as President by the Constitution and the laws of the United States of America, and in order to encourage the growth and maximize the impact of innovative community solutions and civic participation by all Americans, it is hereby ordered as follows:
Section 1 . Establishment . There is established the White House Council for Community Solutions (Council) within the Corporation for National and Community Service (CNCS) to support the social innovation and civic participation agenda of the Domestic Policy Council.
Sec . 2 . Mission and Functions of the Council . The Council shall support the nationwide "Call To Service" campaign authorized in the Serve America Act (Public Law 111 13) by:
(a) identifying the key attributes of effective community developed solutions to our national problems;
(b) identifying specific policy areas in which the Federal Government is investing significant resources that lend themselves to cross-sector collaboration and providing recommendations for such collaborations;
(c) highlighting examples of best practices, tools, and models that are making a demonstrable positive impact in communities and fostering increased cross-sector collaboration and civic participation;
(d) making recommendations to the President on how to engage individuals, State and local governments, institutions of higher education, non profit and philanthropic organizations, community groups, and businesses to support innovative community-developed solutions that have a significant impact in solving our Nation's most serious problems; and
(e) honoring and highlighting the work of leaders in service and social innovation who are making a significant impact in their communities.
Sec. 3 . Membership . (a) The Council shall be composed of not more than 30 members from outside the Federal Government appointed by the President. The Chair of the Board of Directors of the CNCS shall also serve on the Council. Appointed members of the Council may include individuals with relevant experience or subject matter expertise that the President deems appropriate, as well as individuals who may serve as representatives of a variety of sectors, including, among others, State and local governments, institutions of higher education, non profit and philanthropic organizations, community groups, and businesses.
(b) The President shall designate one of the members of the Council to serve as Chair. The Chair shall convene and preside at meetings of the Council.
(c) The term of office of members appointed by the President shall be 2 years, and members shall be eligible for reappointment. Members may continue to serve after the expiration of their terms until the President appoints a successor. A member appointed to fill a vacancy shall serve only for the unexpired term of such vacancy.
Sec. 4. Administration. (a) The CNCS shall provide funding and administrative support for the Council to the extent permitted by law and within existing appropriations.
(b) The heads of executive departments and agencies shall assist and provide information to the Council, consistent with applicable law and subject to the availability of appropriations, as may be necessary to carry out the functions of the Council.
(c) The members of the Council shall serve without compensation for their work on the Council. Members of the Council may, however, receive travel expenses, including per diem in lieu of subsistence, as authorized by law for persons serving intermittently in Government service (5 U.S.C. 5701 5707).
(d) Insofar as the Federal Advisory Committee Act, as amended (5 U.S.C. App.) (the "Act"), may apply to the administration of the Council, any functions of the President under the Act, except that of reporting to the Congress, shall be performed by the Chief Executive Officer of the CNCS in accordance with the guidelines issued by the Administrator of General Services.
Sec. 5. Termination. The Council shall terminate 2 years from the date of this order, unless renewed by the President.
Sec. 6. General Provisions. (a) Nothing in this order shall be construed to impair or otherwise affect:
(i) authority granted by law to an executive department, agency, or the head thereof; or
(ii) functions of the Director of the Office of Management and Budget relating to budgetary, administrative, or legislative proposals.
(b) This order is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person.
BARACK OBAMA
THE WHITE HOUSE,
December 14, 2010.
The White House
Office of the Press Secretary
For Immediate Release November 17, 2010
Executive Order -- Fundamental Principles and Policymaking Criteria for Partnerships with Faith-Based and Other Neighborhood Organizations
By the authority vested in me as President by the Constitution and the laws of the United States of America, and in order to guide Federal agencies in formulating and developing policies with implications for faith-based and other neighborhood organizations, to promote compliance with constitutional and other applicable legal principles, and to strengthen the capacity of faith-based and other neighborhood organizations to deliver services effectively to those in need, it is hereby ordered:
Section 1. Amendments to Executive Order 13279 . Executive Order 13279 of December 12, 2002 (Equal Protection of the Laws for Faith-Based and Community Organizations), as amended, is hereby further amended:
(a) in section 1, by striking subsection (e), and inserting in lieu thereof the following: "(e) 'Specified agency heads' means:
(i) the Attorney General;
(ii) the Secretary of Agriculture;
(iii) the Secretary of Commerce;
(iv) the Secretary of Labor;
(v) the Secretary of Health and Human Services;
(vi) the Secretary of Housing and Urban Development;
(vii) the Secretary of Education;
(viii) the Secretary of Veterans Affairs;
(ix) the Secretary of Homeland Security;
(x) the Administrator of the Environmental Protection Agency;
(xi) the Administrator of the Small Business Administration;
(xii) the Administrator of the United States Agency for International Development; and
(xiii) the Chief Executive Officer of the Corporation for National and Community Service."
(b) by striking section 2, and inserting in lieu thereof the following:
" Sec. 2. Fundamental Principles . In formulating and implementing policies that have implications for faith-based and other neighborhood organizations, agencies that administer social service programs or that support (including through prime awards or sub-awards) social service programs with Federal financial assistance shall, to the extent permitted by law, be guided by the following fundamental principles:
(a) Federal financial assistance for social service programs should be distributed in the most effective and efficient manner possible.
(b) The Nation's social service capacity will benefit if all eligible organizations, including faith-based and other neighborhood organizations, are able to compete on an equal footing for Federal financial assistance used to support social service programs.
(c) No organization should be discriminated against on the basis of religion or religious belief in the administration or distribution of Federal financial assistance under social service programs.
(d) All organizations that receive Federal financial assistance under social service programs should be prohibited from discriminating against beneficiaries or prospective beneficiaries of the social service programs on the basis of religion or religious belief. Accordingly, organizations, in providing services supported in whole or in part with Federal financial assistance, and in their outreach activities related to such services, should not be allowed to discriminate against current or prospective program beneficiaries on the basis of religion, a religious belief, a refusal to hold a religious belief, or a refusal to attend or participate in a religious practice.
(e) The Federal Government must implement Federal programs in accordance with the Establishment Clause and the Free Exercise Clause of the First Amendment to the United States Constitution, as well as other applicable law, and must monitor and enforce standards regarding the relationship between religion and government in ways that avoid excessive entanglement between religious bodies and governmental entities.
(f) Organizations that engage in explicitly religious activities (including activities that involve overt religious content such as worship, religious instruction, or proselytization) must perform such activities and offer such services outside of programs that are supported with direct Federal financial assistance (including through prime awards or sub-awards), separately in time or location from any such programs or services supported with direct Federal financial assistance, and participation in any such explicitly religious activities must be voluntary for the beneficiaries of the social service program supported with such Federal financial assistance.
(g) Faith-based organizations should be eligible to compete for Federal financial assistance used to support social service programs and to participate fully in the social service programs supported with Federal financial assistance without impairing their independence, autonomy, expression outside the programs in question, or religious character. Accordingly, a faith-based organization that applies for, or participates in, a social service program supported with Federal financial assistance may retain its independence and may continue to carry out its mission, including the definition, development, practice, and expression of its religious beliefs, provided that it does not use direct Federal financial assistance that it receives (including through a prime award or sub-award) to support or engage in any explicitly religious activities (including activities that involve overt religious content such as worship, religious instruction, or proselytization), or in any other manner prohibited by law. Among other things, faith-based organizations that receive Federal financial assistance may use their facilities to provide social services supported with Federal financial assistance, without removing or altering religious art, icons, scriptures, or other symbols from these facilities. In addition, a faith-based organization that applies for, or participates in, a social service program supported with Federal financial assistance may retain religious terms in its name, select its board members on a religious basis, and include religious references in its organization's mission statements and other chartering or governing documents.
(h) Each agency responsible for administering or awarding Federal financial assistance for social service programs shall offer protections for beneficiaries of such programs pursuant to the following principles:
(i) Referral to an Alternative Provider. If a beneficiary or prospective beneficiary of a social service program supported by Federal financial assistance objects to the religious character of an organization that provides services under the program, that organization shall, within a reasonable time after the date of the objection, refer the beneficiary to an alternative provider.
(ii) Agency Responsibilities. Each agency responsible for administering a social service program or supporting a social service program with Federal financial assistance shall establish policies and procedures designed to ensure that (1) appropriate and timely referrals are made to an alternative provider; (2) all referrals are made in a manner consistent with all applicable privacy laws and regulations; (3) the organization subject to subsection (h)(i) notifies the agency of any referral; (4) such organization has established a process for determining whether the beneficiary has contacted the alternative provider; and (5) each beneficiary of a social service program receives written notice of the protections set forth in this subsection prior to enrolling in or receiving services from such program.
(i) To promote transparency and accountability, agencies that provide Federal financial assistance for social service programs shall post online, in an easily accessible manner, regulations, guidance documents, and policies that reflect or elaborate upon the fundamental principles described in this section. Agencies shall also post online a list of entities that receive Federal financial assistance for provision of social service programs, consistent with law and pursuant to guidance set forth in paragraph (c) of section 3 of this order.
(j) Decisions about awards of Federal financial assistance must be free from political interference or even the appearance of such interference and must be made on the basis of merit, not on the basis of the religious affiliation of a recipient organization or lack thereof.";
(c) by striking section 3, and inserting in lieu thereof the following:
" Sec. 3. Ensuring Uniform Implementation Across the Federal Government.
In order to promote uniformity in agencies' policies that have implications for faith-based and other neighborhood organizations and in related guidance, and to ensure that those policies and guidance are consistent with the fundamental principles set forth in section 2 of this order, there is established an Interagency Working Group on Faith-Based and Other Neighborhood Partnerships (Working Group).
(a) Mission and Function of the Working Group . The Working Group shall meet periodically to review and evaluate existing agency regulations, guidance documents, and policies that have implications for faith-based and other neighborhood organizations. Where appropriate, specified agency heads shall, to the extent permitted by law, amend all such existing policies of their respective agencies to ensure that they are consistent with the fundamental principles set forth in section 2 of this order.
(b) Uniform Agency Implementation . Within 120 days of the date of this order, the Working Group shall submit a report to the President on amendments, changes, or additions that are necessary to ensure that regulations and guidance documents associated with the distribution of Federal financial assistance for social service programs are consistent with the fundamental principles set forth in section 2 of this order. The Working Group's report should include, but not be limited to, a model set of regulations and guidance documents for agencies to adopt in the following areas:
(i) prohibited uses of direct Federal financial assistance and separation requirements; (ii) protections for religious identity; (iii) the distinction between "direct" and "indirect" Federal financial assistance; (iv) protections for beneficiaries of social service programs; (v) transparency requirements, consistent with and in furtherance of existing open government initiatives; (vi) obligations of nongovernmental and governmental intermediaries; (vii) instructions for peer reviewers and those who recruit peer reviewers; and (viii) training on these matters for government employees and for Federal, State, and local governmental and nongovernmental organizations that receive Federal financial assistance under social service programs. In developing this report and in reviewing agency regulations and guidance for consistency with section 2 of this order, the Working Group shall consult the March 2010 report and recommendations prepared by the President's Advisory Council on Faith-Based and Neighborhood Partnerships on the topic of reforming the Office of Faith-Based and Neighborhood Partnerships.
(c) Guidance . The Director of the Office of Management and Budget (OMB), following receipt of a copy of the report of the Working Group, and in coordination with the Department of Justice, shall issue guidance to agencies on the implementation of this order, including in particular subsections 2(h)-(j).
(d) Membership of the Working Group . The Director of the Office of Faith-Based and Neighborhood Partnerships and a senior official from the OMB designated by the Director of the OMB shall serve as the Co-Chairs of the Working Group. The Co Chairs shall convene regular meetings of the Working Group, determine its agenda, and direct its work. In addition to the Co-Chairs, the Working Group shall consist of a senior official with knowledge of policies that have implications for faith-based and other neighborhood organizations from the following agencies and offices:
(i) the Department of State;
(ii) the Department of Justice;
(iii) the Department of the Interior;
(iv) the Department of Agriculture;
(v) the Department of Commerce;
(vi) the Department of Labor;
(vii) the Department of Health and Human Services;
(viii) the Department of Housing and Urban Development;
(ix) the Department of Education;
(x) the Department of Veterans Affairs;
(xi) the Department of Homeland Security;
(xii) the Environmental Protection Agency;
(xiii) the Small Business Administration;
(xiv) the United States Agency for International Development;
(xv) the Corporation for National and Community Service; and
(xvi) other agencies and offices as the President, from time to time, may designate.
(e) Administration of the Initiative . The Department of Health and Human Services shall provide funding and administrative support for the Working Group to the extent permitted by law and within existing appropriations."; and
(d) by striking in the title, preamble, and section 1(c), "community" and inserting in lieu thereof "other neighborhood".
Sec. 2. General Provisions.
(a) This order amends the requirements contained in Executive Order 13279. This order supplements, but does not supersede, the requirements contained in Executive Orders 13198 and 13199 of January 29, 2001, and Executive Order 13498 of February 5, 2009.
(b) Nothing in this order shall be construed to impair or otherwise affect:
(i) authority granted by law to an executive department, agency, or the head thereof; or
(ii) functions of the Director of the OMB relating to budgetary, administrative, or legislative proposals.
(c) This order shall be implemented consistent with applicable law and subject to the availability of appropriations.
(d) This order is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person.
BARACK OBAMA
THE WHITE HOUSE,
November 17, 2010.
The White House
Office of the Press Secretary
For Immediate Release August 18, 2010
Executive Order--Classified National Security Information Programs for State, Local, Tribal, and Private Sector Entities
By the authority vested in me as President by the Constitution and the laws of the United States of America, in order to ensure the proper safeguarding of information shared with State, local, tribal, and private sector entities, it is hereby ordered as follows:
Section 1. Establishment and Policy.
Sec. 1.1. There is established a Classified National Security Information Program (Program) designed to safeguard and govern access to classified national security information shared by the Federal Government with State, local, tribal, and private sector (SLTPS) entities.
Sec. 1.2. The purpose of this order is to ensure that security standards governing access to and safeguarding of classified material are applied in accordance with Executive Order 13526 of December 29, 2009 ("Classified National Security Information"), Executive Order 12968 of August 2, 1995, as amended ("Access to Classified Information"), Executive Order 13467 of June 30, 2008 ("Reforming Processes Related to Suitability for Government Employment, Fitness for Contractor Employees, and Eligibility for Access to Classified National Security Information"), and Executive Order 12829 of January 6, 1993, as amended ("National Industrial Security Program"). Procedures for uniform implementation of these standards by SLTPS entities shall be set forth in an implementing directive to be issued by the Secretary of Homeland Security within 180 days of the date of this order, in consultation with affected executive departments and agencies (agencies), and with the concurrence of the Secretary of Defense, the Attorney General, the Director of National Intelligence, and the Director of the Information Security Oversight Office.
Sec. 1.3. Additional policy provisions for access to and safeguarding of classified information shared with SLTPS personnel include the following:
(a) Eligibility for access to classified information by SLTPS personnel shall be determined by a sponsoring agency. The level of access granted shall not exceed the Secret level, unless the sponsoring agency determines on a case by case basis that the applicant has a demonstrated and foreseeable need for access to Top Secret, Special Access Program, or Sensitive Compartmented Information.
(b) Upon the execution of a non disclosure agreement prescribed by the Information Security Oversight Office or the Director of National Intelligence, and absent disqualifying conduct as determined by the clearance granting official, a duly elected or appointed Governor of a State or territory, or an official who has succeeded to that office under applicable law, may be granted access to classified information without a background investigation in accordance with the implementing directive for this order. This authorization of access may not be further delegated by the Governor to any other person.
(c) All clearances granted to SLTPS personnel, as well as accreditations granted to SLTPS facilities without a waiver, shall be accepted reciprocally by all agencies and SLTPS entities.
(d) Physical custody of classified information by State, local, and tribal (SLT) entities shall be limited to Secret information unless the location housing the information is under the full time management, control, and operation of the Department of Homeland Security or another agency. A standard security agreement, established by the Department of Homeland Security in consultation with the SLTPS Advisory Committee, shall be executed between the head of the SLT entity and the U.S. Government for those locations where the SLT entity will maintain physical custody of classified information.
(e) State, local, and tribal facilities where classified information is or will be used or stored shall be inspected, accredited, and monitored for compliance with established standards, in accordance with Executive Order 13526 and the implementing directive for this order, by the Department of Homeland Security or another agency that has entered into an agreement with the Department of Homeland Security to perform such inspection, accreditation, and monitoring.
(f) Private sector facilities where classified information is or will be used or stored shall be inspected, accredited, and monitored for compliance with standards established pursuant to Executive Order 12829, as amended, by the Department of Defense or the cognizant security agency under Executive Order 12829, as amended.
(g) Access to information systems that store, process, or transmit classified information shall be enforced by the rules established by the agency that controls the system and consistent with approved dissemination and handling markings applied by originators, separate from and in addition to criteria for determining eligibility for access to classified information. Access to information within restricted portals shall be based on criteria applied by the agency that controls the portal and consistent with approved dissemination and handling markings applied by originators.
(h) The National Industrial Security Program established in Executive Order 12829, as amended, shall govern the access to and safeguarding of classified information that is released to contractors, licensees, and grantees of SLT entities.
(i) All access eligibility determinations and facility security accreditations granted prior to the date of this order that do not meet the standards set forth in this order or its implementing directive shall be reconciled with those standards within a reasonable period.
(j) Pursuant to section 4.1(i)(3) of Executive Order 13526, documents created prior to the effective date of Executive Order 13526 shall not be re disseminated to other entities without the consent of the originating agency. An agency head or senior agency official may waive this requirement for specific information that originated within that agency.
Sec. 2. Policy Direction. With policy guidance from the National Security Advisor and in consultation with the Director of the Information Security Oversight Office, the Director of the Office of Management and Budget, and the heads of affected agencies, the Secretary of Homeland Security shall serve as the Executive Agent for the Program. This order does not displace any authorities provided by law or Executive Order and the Executive Agent shall, to the extent practicable, make use of existing structures and authorities to preclude duplication and to ensure efficiency.
Sec. 3. SLTPS Policy Advisory Committee. (a) There is established an SLTPS Policy Advisory Committee (Committee) to discuss Program related policy issues in dispute in order to facilitate their resolution and to otherwise recommend changes to policies and procedures that are designed to remove undue impediments to the sharing of information under the Program. The Director of the Information Security Oversight Office shall serve as Chair of the Committee. An official designated by the Secretary of Homeland Security and a representative of SLTPS entities shall serve as Vice Chairs of the Committee. Members of the Committee shall include designees of the heads of the Departments of State, Defense, Justice, Transportation, and Energy, the Nuclear Regulatory Commission, the Office of the Director of National Intelligence, the Central Intelligence Agency, and the Federal Bureau of Investigation. Members shall also include employees of other agencies and representatives of SLTPS entities, as nominated by any Committee member and approved by the Chair.
(b) Members of the Committee shall serve without compensation for their work on the Committee, except that any representatives of SLTPS entities may be allowed travel expenses, including per diem in lieu of subsistence, as authorized by law for persons serving intermittently in the Government service (5 U.S.C. 5701-5707).
(c) The Information Security Oversight Office shall provide staff support to the Committee.
(d) Insofar as the Federal Advisory Committee Act, as amended (5 App. U.S.C.)(the "Act") may apply to this order, any functions of the President under that Act, except that of reporting to the Congress, which are applicable to the Committee, shall be performed by the Administrator of General Services in accordance with guidelines and procedures established by the General Services Administration.
Sec. 4. Operations and Oversight. (a) The Executive Agent for the Program shall perform the following responsibilities:
(1) overall program management and oversight;
(2) accreditation, periodic inspection, and monitoring of all facilities owned or operated by SLT entities that have access to classified information, except when another agency has entered into an agreement with the Department of Homeland Security to perform some or all of these functions;
(3) processing of security clearance applications by SLTPS personnel, when requested by a sponsoring agency, on a reimbursable basis unless otherwise determined by the Department of Homeland Security and the sponsoring agency;
(4) documenting and tracking the final status of security clearances for all SLTPS personnel in consultation with the Office of Personnel Management, the Department of Defense, and the Office of the Director of National Intelligence;
(5) developing and maintaining a security profile of SLT facilities that have access to classified information; and
(6) developing training, in consultation with the Committee, for all SLTPS personnel who have been determined eligible for access to classified information, which shall cover the proper safeguarding of classified information and sanctions for unauthorized disclosure of classified information.
(b) The Secretary of Defense, or the cognizant security agency under Executive Order 12829, as amended, shall provide program management, oversight, inspection, accreditation, and monitoring of all private sector facilities that have access to classified information.
(c) The Director of National Intelligence may inspect and monitor SLTPS programs and facilities that involve access to information regarding intelligence sources, methods, and activities.
(d) Heads of agencies that sponsor SLTPS personnel and facilities for access to and storage of classified information under section 1.3(a) of this order shall:
(1) ensure on a periodic basis that there is a demonstrated, foreseeable need for such access; and
(2) provide the Secretary of Homeland Security with information, as requested by the Secretary, about SLTPS personnel sponsored for security clearances and SLT facilities approved for use of classified information prior to and after the date of this order, except when the disclosure of the association of a
specific individual with an intelligence or law enforcement agency must be protected in the interest of national security, as determined by the intelligence or law enforcement agency.
Sec. 5. Definitions. For purposes of this order:
(a) "Access" means the ability or opportunity to gain knowledge of classified information.
(b) "Agency" means any "Executive agency" as defined in 5 U.S.C. 105; any military department as defined in 5 U.S.C. 102; and any other entity within the executive branch that comes into possession of classified information.
(c) "Classified National Security Information" or "classified information" means information that has been determined pursuant to Executive Order 13526, or any predecessor or successor order, to require protection against unauthorized disclosure, and is marked to indicate its classified status when in documentary form.
(d) "Information" means any knowledge that can be communicated or documentary material, regardless of its physical form or characteristics, that is owned by, produced by or for, or is under the control of the United States Government.
(e) "Intelligence activities" means all activities that elements of the Intelligence Community are authorized to conduct pursuant to law or Executive Order 12333, as amended, or a successor order.
(f) "Local" entities refers to "(A) a county, municipality, city, town, township, local public authority, school district, special district, intrastate district, council of governments (regardless of whether the council of governments is incorporated as a nonprofit corporation under State law), regional or interstate government entity, or agency or instrumentality of a local government; and (B) a rural community, unincorporated town or village, or other public entity" as defined in section 2 of the Homeland Security Act of 2002 (6 U.S.C. 101(11)).
(g) "Private sector" means persons outside government who are critically involved in ensuring that public and private preparedness and response efforts are integrated as part of the Nation's Critical Infrastructure or Key Resources (CIKR), including:
(1) corporate owners and operators determined by the Secretary of Homeland Security to be part of the CIKR;
(2) subject matter experts selected to assist the Federal or State CIKR;
(3) personnel serving in specific leadership positions of CIKR coordination, operations, and oversight;
(4) employees of corporate entities relating to the protection of CIKR; or
(5) other persons not otherwise eligible for the granting of a personnel security clearance pursuant to Executive Order 12829, as amended, who are determined by the Secretary of Homeland Security to require a personnel security clearance.
(h) "Restricted portal" means a protected community of interest or similar area housed within an information system and to which access is controlled by a host agency different from the agency that controls the information system.
(i) "Sponsoring Agency" means an agency that recommends access to or possession of classified information by SLTPS personnel.
(j) "State" means any State of the United States, the District of Columbia, the Commonwealth of Puerto Rico, the Virgin Islands, Guam, American Samoa, the Commonwealth
of the Northern Mariana Islands, and any possession of the United States, as defined in section 2 of the Homeland Security Act of 2002 (6 U.S.C. 101(15)).
(k) "State, local, and tribal personnel" means any of the following persons:
(1) Governors, mayors, tribal leaders, and other elected or appointed officials of a State, local government, or tribe;
(2) State, local, and tribal law enforcement personnel and firefighters;
(3) public health, radiological health, and medical professionals of a State, local government, or tribe; and
(4) regional, State, local, and tribal emergency management agency personnel, including State Adjutants General and other appropriate public safety personnel and those personnel providing support to a Federal CIKR mission.
(l) "Tribe" means any Indian or Alaska Native tribe, band, nation, pueblo, village, or community that the Secretary of the Interior acknowledges to exist as an Indian tribe as defined in the Federally Recognized Tribe List Act of 1994 (25 U.S.C. 479a(2)).
(m) "United States" when used in a geographic sense, means any State of the United States, the District of Columbia, the Commonwealth of Puerto Rico, the Virgin Islands, Guam, American Samoa, the Commonwealth of the Northern Mariana Islands, any possession of the United States and any waters within the territorial jurisdiction of the United States.
Sec. 6. General Provisions. (a) This order does not change the requirements of Executive Orders 13526, 12968, 13467, or 12829, as amended, and their successor orders and directives.
(b) Nothing in this order shall be construed to supersede or change the authorities of the Secretary of Energy or the Nuclear Regulatory Commission under the Atomic Energy Act of 1954, as amended (42 U.S.C. 2011 et seq.); the Secretary of Defense under Executive Order 12829, as amended; the Director of the Information Security Oversight Office under Executive Order 13526 and Executive Order 12829, as amended; the Attorney General under title 18, United States Code, and the Foreign Intelligence Surveillance Act (50 U.S.C. 1801 et seq.); the Secretary of State under title 22, United States Code, and the Omnibus Diplomatic Security and Antiterrorism Act of 1986; or the Director of National Intelligence under the National Security Act of 1947, as amended, Executive Order 12333, as amended, Executive Order 12968, as amended, Executive Order 13467, and Executive Order 13526.
(c) Nothing in this order shall limit the authority of an agency head, or the agency head's designee, to authorize in an emergency and when necessary to respond to an imminent threat to life or in defense of the homeland, in accordance with section 4.2(b) of Executive Order 13526, the disclosure of classified information to an individual or individuals who are otherwise not eligible for access in accordance with the provisions of Executive Order 12968.
(d) Consistent with section 892(a)(4) of the Homeland Security Act of 2002 (6 U.S.C. 482(a)(4)), nothing in this order shall be interpreted as changing the requirements and authorities to protect sources and methods.
(e) Nothing in this order shall supersede measures established under the authority of law or Executive Order to protect the security and integrity of specific activities and associations that are in direct support of intelligence operations.
(f) Pursuant to section 892(e) of the Homeland Security Act of 2002 (6 U.S.C. 482(e)), all information provided to an SLTPS entity from an agency shall remain under the control of the Federal Government. Any State or local law authorizing or requiring disclosure shall not apply to such information.
(g) Nothing in this order limits the protection afforded any classified information by other provisions of law. This order is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person.
(h) Nothing in this order shall be construed to obligate action or otherwise affect functions by the Director of the Office of Management and Budget relating to budgetary, administrative, or legislative proposals.
(i) This order shall be implemented subject to the availability of appropriations and consistent with procedures approved by the Attorney General pursuant to Executive Order 12333, as amended.
Sec. 7. Effective Date. This order is effective 180 days from the date of this order with the exception of section 3, which is effective immediately.
BARACK OBAMA
THE WHITE HOUSE,
August 18, 2010.
The White House
Office of the Press Secretary
For Immediate Release April 21, 2010
Executive Order -- President's Council of Advisors on Science and Technology
By the authority vested in me as President by the Constitution and the laws of the United States of America, and in order to establish an advisory council on science,
technology, and innovation, it is hereby ordered as follows:
Section 1 . Establishment . The President's Council of Advisors on Science and Technology (PCAST) is hereby established. The PCAST shall be composed of not more than 21 members, one of whom shall be the Assistant to the President for Science and Technology (the "Science Advisor"), and 20 of whom shall include distinguished individuals and representatives from sectors outside of the Federal Government appointed by the President. These nonfederal members shall have diverse perspectives and expertise in science, technology, and innovation. The Science Advisor shall serve as a Co-Chair of the PCAST. The President shall also designate at least one, but not more than two, of the nonfederal members to serve as a Co-Chair of the PCAST with the Science Advisor.
Sec. 2 . Functions . (a) The PCAST shall advise the President, directly at its meetings with the President and also through the Science Advisor, on matters involving science, technology, and innovation policy. This advice shall include, but not be limited to, policy that affects science, technology, and innovation, as well as scientific and technical information that is needed to inform public policy relating to the economy, energy, environment, public health, national and homeland security, and other topics. The PCAST shall meet regularly and shall:
(i) respond to requests from the President or the Science Advisor for information, analysis, evaluation, or advice;
(ii) solicit information and ideas from the broad range of stakeholders, including but not limited to the research community, the private sector, universities, national laboratories, State and local governments, foundations, and nonprofit organizations;
(iii) serve as the advisory committee identified in subsections 101(b) and 103(b) of the High-Performance Computing Act of 1991 (Public Law 102-194), as amended (15 U.S.C. 5511(b) and 5513(b)). In performing the functions of such advisory committee, the PCAST shall be known as the President's Innovation and Technology Advisory Committee; and
(iv) serve as the advisory panel identified in section 4 of the 21st Century Nanotechnology Research and Development Act (15 U.S.C. 7503) (21st Century
Act). In performing the functions of such advisory committee, the PCAST shall be known as the National Nanotechnology Advisory Panel. Nothing in this
order shall be construed to require the National Nanotechnology Advisory Panel to comply with any requirement from which it is exempted by section 4(f)
of the 21st Century Act.
(b) The PCAST shall provide advice from the nonfederal sector to the National Science and Technology Council (NSTC) in response to requests from the NSTC.
Sec. 3 . Administration . (a) The heads of executive departments and agencies shall, to the extent permitted by law, provide the PCAST with information concerning scientific and technological matters when requested by the PCAST Co-Chairs and as required for the purpose of carrying out the PCAST's functions.
(b) In consultation with the Science Advisor, the PCAST is authorized to create standing subcommittees and ad hoc groups, including, but not limited to, technical advisory groups to assist the PCAST and provide preliminary information directly to the PCAST.
(c) So that the PCAST may provide advice and analysis regarding classified matters, the Science Advisor may request that members of the PCAST, its standing subcommittees, or ad hoc groups who do not hold a current clearance for access to classified information, receive security clearance and access determinations pursuant to Executive Order 12968 of August 2, 1995, as amended, or any successor order.
(d) The Office of Science and Technology Policy (OSTP) shall provide such funding and administrative and technical support as the PCAST may require.
(e) Members of the PCAST shall serve without any compensation for their work on the PCAST, but may receive travel expenses, including per diem in lieu of subsistence, as authorized by law for persons serving intermittently in the government service (5 U.S.C. 5701-5707).
Sec. 4 . Termination . The PCAST shall terminate 2 years from the date of this order unless extended by the President.
Sec. 5 . General Provisions . (a) Insofar as the Federal Advisory Committee Act, as amended (5 U.S.C. App.) (FACA) may apply to the PCAST, any functions of the President under the FACA, except that of reporting to the Congress, shall be performed by the Director of the OSTP in accordance with the guidelines and procedures established by the Administrator of General Services.
(b) Nothing in this order shall be construed to impair or otherwise affect:
(i) authority granted by law to a department or agency, or the head thereof; or
(ii) functions of the Director of the Office of Management and Budget relating to budgetary, administrative, or legislative proposals.
(c) This order shall be implemented consistent with applicable law and subject to the availability of appropriations.
(d) This order is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person.
Sec. 6 . Revocation . Executive Order 13226 of September 30, 2001, as amended, is hereby revoked.
BARACK OBAMA
THE WHITE HOUSE,
April 21, 2010.
Joint CFTC-SEC Advisory Committee Recommends Transformative Market Changes in the Wake of May 6th Flash Crash March 2, 2011
On February 18, 2011, the Joint CFTC-SEC Advisory Committee on Emerging Regulatory Issues (the "Committee") issued a report entitled Recommendations Regarding Regulatory Responses to the Market Events of May 6, 2010 ("Report"), setting forth its recommendations for regulatory action by the Securities and Exchange Commission ("SEC") and the Commodity Futures Trading Commission ("CFTC") (collectively, "the Commissions") in the wake of the so-called "flash crash" of May 6th. 1 The Committee recommends substantial changes to certain widespread market practices, as well as more incremental changes to certain of the Commissions' current market regulatory initiatives. Taken together, implementation of the Committee's recommendations would have a significant, transformative effect on the operation of the U.S. markets and their participants.
I. Recommendations for Significant Regulatory Changes
The Report makes various recommendations that, if adopted, would have substantial, far-reaching effects on the current operation of the U.S. markets:
Enhancing Liquidity Through Changes to Maker-Taker Pricing Models . The Committee notes that "incentives to display liquidity may be deficient in normal markets, and are seriously deficient in turbulent markets." Therefore, the Committee suggests that the Commissions consider incentives to supply liquidity that vary with market conditions. In particular, the Committee recommends that the SEC evaluate the potential benefits which might be gained by changes in maker/taker pricing practices, including building in incentives for the exchanges to provide for "peak load" pricing models. The Committee recognizes, however, that there are reasonable counterarguments to such peak load fee changes, such as the possibility of increased internalization.
Incentives to Regularly Provide Quotes Reasonably Related to the Market . Although the Committee is "chary of overdependence on market maker obligations as a solution to market liquidity," the Committee believes that the Commissions should consider encouraging, through incentives or regulation, persons who regularly implement market maker strategies, such as firms engaging in high frequency trading ("HFT"), to maintain best buy and sell quotations that are reasonably related to the market. Such incentives could include differential pricing or preferential co-location provisions.
Allocation of Costs for High Levels of Order Cancellations . The Committee expressed concern about the disproportionate impact that HFT has on exchange message traffic and market surveillance costs. The Committee recommends that the SEC and the CFTC explore ways to fairly allocate the costs associated with high levels of message traffic, including order cancellations, to market participants generating them. For example, the regulators may assess a uniform fee across all markets that is calculated based on the ratio of order cancellations to actual transactions effected by a market participant.
Re-examination of Internalization Practices . The Committee noted that "the impact of the substantial growth of internalizing and preferencing activity on the incentives to submit priced order flow to public exchange limit order books deserves further examination." 2 In particular, the Committee recommends that the SEC should, at a minimum, consider whether to (1) require that internalized or preferenced orders only be executed at a price materially superior ( e.g. , 50 mils for most securities) to the quoted best bid or offer, and/or (2) require firms internalizing customer order flow or executing preferenced order flow to be subject to market maker obligations that require them to execute some material portion of their order flow during volatile market periods. The first alternative would eliminate the current practice of quote matching by requiring material price improvement for internalized orders.
Consideration of Alternative Routing Regimes . Related to the internalization issues, the Committee also expressed concern about "the effects of the current routing protocols on the overall incentive to place orders providing liquidity in the public markets." As a result, the Committee recommends that the SEC consider adopting a "trade at" routing regime in which orders must be routed to one or more markets with the best displayed price. This contrasts with the current practice in which venues cannot "trade through" a better price displayed on another market, but can retain and execute the order by matching the current best price even if it has not displayed a publicly accessible quote order at that price. In addition, the Committee recommends analysis of the costs and benefits of replacing the current "top of book" trade-through protection protocol with "depth of book" protection. The Report recognizes, however, that such changes in routing practices may entail substantial technology and implementation costs and may adversely impact some forms of competition.
Broader Public Dissemination of Liquidity Imbalances . The Report also supports the broader public dissemination of information regarding liquidity imbalances in larger trading venues, including information related to the state of the limit order book and the market, the current buy/sell ratio of orders on the book, the rate at which orders are sent to the respective sides of the book, or other metrics related to the current state of liquidity in the market. The Committee believes that the disclosure of this information would provide a basis for market-generated responses to liquidity imbalances.
II. Recommendations for Enhancements to Current Regulatory Initiatives
The Committee also supports certain existing regulatory initiatives by the SEC and the CFTC in the wake of May 6th, and recommends further enhancements or refinements to these initiatives:
Expansion of Single Stock Pauses . The Committee supports the recent creation of single stock pauses/circuit breakers for the Russell 1000 stocks and actively traded ETFs, and recommends the expansion of the pause rules to cover all but the most inactively traded listed equity securities, ETFs, and options and single stock futures on those securities.
Adoption of Limit Up/Limit Down Process . In light of concerns about the limitations of the single stock pauses, including the complete restriction on trading as well as the continued possibility of erroneous triggering trades, the Committee recommends the implementation of a "limit up/limit down" process to supplement the existing pause rules (as is currently under consideration by the SEC). In addition, the Committee recommends that the Commissions clarify whether securities options exchanges and single stock futures exchanges should continue to trade during any equity limit up/down periods.
Evaluation of Need for Second Tier of Pre-Trade Risk Safeguards for Derivatives Markets . The Committee fully supports the CME's use of five-second circuit breakers to allow for the entry of contra-side orders to correct an imbalance. The Committee, however, questioned whether a longer timeframe would better address the need for additional liquidity in all trading scenarios ( e.g. , news-driven scenarios). Therefore, the Report recommends that the CFTC and the relevant derivatives exchanges evaluate whether a second tier of pre-trade risk safeguards with longer timeframes should be instituted when the five-second limit does not attract contra-side liquidity.
Updating System-Wide Circuit Breakers . In light of the electronic nature of today's trading as well as the interconnectedness of the equity and derivatives markets, the Committee recommends updating the present system-wide circuit breakers. In particular, the Committee would (1) reduce, at least, the initial trading halt to a period of time as short as 10 minutes; (2) allow the halt to be triggered as late as 3:30 p.m.; and (3) use the S&P 500 Index, instead of the Dow Jones Industrial Average, as the triggering mechanism.
Support for SEC's Prohibition of Naked Access . The Committee supports the SEC's adoption of the direct market access rule, 3 which prohibits broker-dealers from providing customers with "unfiltered" or "naked" access to an exchange or alternative trading system ("ATS") and requires risk management controls and supervisory procedures for brokers providing market access. The Committee also urges the SEC to work closely with FINRA and the exchanges with examination responsibilities to develop effective testing of sponsoring broker-dealer risk management controls and supervisory procedures.
CFTC Rulemaking on Anti-Disruptive Trading . The Committee recommends that the CFTC use its rulemaking authority to impose strict supervisory requirements on designated contract markets or futures commission merchants that employ or sponsor firms implementing algorithmic order routing strategies and that the CFTC and the SEC carefully review the benefits and costs of directly restricting disruptive trading activities with respect to extremely large orders or strategies. 4
Implementation of Consolidated Audit Trail . The Report also urges the SEC to "proceed with a sense of urgency, and a focus on meaningful cost/benefit analysis," to implement its proposed consolidated audit trail. 5 Similarly, the Committee recommends the enhancement of the CFTC's existing data collection regarding orders and executions.
1 Recommendations Regarding Regulatory Responses to the Market Events of May 6, 2010: Summary Report of the Joint CFTC-SEC Advisory Committee on Emerging Regulatory Issues (Feb. 18, 2011), available at www.sec.gov/spotlight/sec-cftcjointcommittee/021811-report.pdf . See also Preliminary Findings Regarding the Market Events of May 6, 2010: Report of the Staffs of the CFTC and SEC to the Joint Advisory Committee on Emerging Regulatory Issues (May 18, 2010), available at www.sec.gov/sec-cftc-prelimreport.pdf ; Findings Regarding the Market Events of May 6, 2010: Report of the Staffs of the CFTC and SEC to the Joint Advisory Committee on Emerging Regulatory Issues (Sept. 30, 2010), available at www.cftc.gov/ucm/groups/public/@otherif/documents/ifdocs/staff-findings050610.pdf .
2 The Committee states that the percentages of order flow executed in this manner has sharply risen and is believed to account for over 20% of the share volume in listed equity securities. Report at 11.
3 See Risk Management Controls for Brokers or Dealers with Market Access, Exchange Act Release No. 61379, 75 Fed. Reg. 4007 (Jan. 10, 2010); SEC Proposes Broad Changes for Broker-Dealers with Direct Access to ATSs and Exchanges, WilmerHale Client Alert (Feb. 3, 2010), available at www.wilmerhale.com/publications/whPubsDetail.aspxpublication=9392 . See also Risk Management Controls for Brokers or Dealers with Market Access, Exchange Act Release No. 63241, 75 Fed. Reg. 69792 (Nov. 15, 2010); A Return to Modesty - The SEC Clothes Naked Access: Adoption of Risk Management Controls for Broker-Dealers with Market Access, WilmerHale Client Alert (Nov. 11, 2010), available at www.wilmerhale.com/publications/whPubsDetail.aspx?publication=9646 .
4 See Antidisruptive Practices Authority Contained in the Dodd-Frank Wall Street Reform and Consumer Protection Act, 75 Fed. Reg. 67301 (Nov. 2, 2010).
The Department of Energy's loan guarantee program leverages federal dollars by allowing the DOE to guarantee the debt of privately owned clean energy developers and manufacturing companies instead of investing directly into these companies through grants or tax subsidies.
Richard W. Caperton, in a CAP cross-post on what the House GOP's proposal to slash the program would mean for clean energy.
The United States stands at a crossroads between two energy futures.
RECOMMENDATION 1.10: ADOPT IMMEDIATE REFORMS TO REDUCE SPENDING AND MAKE THE FEDERAL GOVERNMENT MORE EFFICIENT.
In addition to these proposals, the Commission advises that through executive action, congressional rule, and legislation, a number of steps be taken immediately to show Washington can lead by example. The collected recommendations that follow would reduce spending on both the security and non-security sides of the discretionary budget. Together, they will save more than $50 billion in 2015 alone:
1.10.6 Sell excess federal real property. The federal government is the largest real property owner in the country, with an inventory of more than 1.2 million buildings, structures, and land parcels. Holding this unneeded property carries maintenance costs and forgoes the opportunity to sell potentially valuable property. We propose directing the GSA to loosen agency restrictions associated with selling unused buildings and land. This proposal will save at least $100 million in 2015.
Protect the disadvantaged. About 20 percent of mandatory spending is devoted to income support programs for the most disadvantaged. These include programs such as unemployment compensation, food stamps, and Supplemental Security Income (SSI). These programs provide vital means of support for the disadvantaged, and this report does not recommend any fundamental policy changes to these programs.
End wasteful spending. The first place to look for savings must be wasteful spending, including subsidies that are poorly targeted or create perverse incentives, and improper payments that can be eliminated through program integrity efforts.
Look to the private sector. Some mandatory programs, like federal civilian and military retirement systems, are similar to programs in the private sector. When appropriate, we should apply innovations and cost-saving techniques from the private sector.
RECOMMENDATION 4.5: ELIMINATE PAYMENTS TO STATES FOR ABANDONED MINES.
The Abandoned Mine Land program at the Department of the Interior operates a fund for the reclamation of abandoned coal mines across the United States . The program is financed by a fee paid by the coal industry. In 2006, Congress authorized payments from the Abandoned Mine Land fund to states and tribes certified as having completed the reclamation of their abandoned coal mines – though payments can be used for any purpose. The Commission recommends eliminating these payments because they no longer serve their stated purpose -- contributing to reclaiming abandoned coal mines. Instead, they are paid to states and tribes whose mines have already been reclaimed.
EXECUTIVE ORDER
FEDERAL LEADERSHIP IN ENVIRONMENTAL, ENERGY,
AND ECONOMIC PERFORMANCE
By the authority vested in me as President by the Constitution and the laws of the United States of America, and to establish an integrated strategy towards sustainability in the Federal Government and to make reduction of greenhouse gas emissions a priority for Federal agencies, it is hereby ordered as follows:
Section 1. Policy. In order to create a clean energy economy that will increase our Nation's prosperity, promote energy security, protect the interests of taxpayers, and safeguard the health of our environment, the Federal Government must lead by example. It is therefore the policy of the United States that Federal agencies shall increase energy efficiency; measure, report, and reduce their greenhouse gas emissions from direct and indirect activities; conserve and protect water resources through efficiency, reuse, and storm water management; eliminate waste, recycle, and prevent pollution; leverage agency acquisitions to foster markets for sustainable technologies and environmentally preferable materials, products, and services; design, construct, maintain, and operate high-performance sustainable buildings in sustainable locations; strengthen the vitality and livability of the communities in which Federal facilities are located; and inform Federal employees about and involve them in the achievement of these goals.
It is further the policy of the United States that to achieve these goals and support their respective missions, agencies shall prioritize actions based on a full accounting of both economic and social benefits and costs and shall drive continuous improvement by annually evaluating performance, extending or expanding projects that have net benefits, and reassessing or discontinuing under-performing projects.
Finally, it is also the policy of the United States that agencies' efforts and outcomes in implementing this order shall be transparent and that agencies shall therefore disclose results associated with the actions taken pursuant to this order on publicly available Federal websites.
Sec. 2. Goals for Agencies. In implementing the policy set forth in section 1 of this order, and preparing and implementing the Strategic Sustainability Performance Plan called for inspection 8 of this order, the head of each agency shall:
(a) within 90 days of the date of this order, establish and report to the Chair of the Council on Environmental Quality (Catchier) and the Director of the Office of Management and Budget (OMB Director) a percentage reduction target for agency-wide reductions of scope 1 and 2 greenhouse gas emissions in absolute terms by fiscal year 2020, relative to a fiscal year 2008baseline of the agency's scope 1 and 2 greenhouse gas emissions. Where appropriate, the target shall exclude direct emissions from excluded vehicles and equipment and from electric power produced and sold commercially to other parties in the course of regular business. This target shall be subject to review and approval by the CEQ Chair in consultation with the OMB Director under section 5 of this order. In establishing the target, the agency head shall consider reductions associated with: (i) reducing energy intensity in agency buildings; (ii) increasing agency use of renewable energy and implementing renewable energy generation projects on agency property; and (iii) reducing the use of fossil fuels by: (A) using low greenhouse gas emitting vehicles including alternative fuel vehicles; (B) optimizing the number of vehicles in the agency fleet; and (C) reducing, if the agency operates a fleet of at least 20 motor vehicles, the agency fleet's total consumption of petroleum products by a minimum of2 percent annually through the end of fiscal year2020, relative to a baseline of fiscal year 2005; (b) within 240 days of the date of this order and concurrent with submission of the Strategic Sustainability Performance Plan as described in section 8 of this order, establish and report to the CEQ Chair and the OMB Director a percentage reduction target for reducing agency-wide scope 3greenhouse gas emissions in absolute terms by fiscal year 2020,relative to a fiscal year 2008 baseline of agency scope 3emissions. This target shall be subject to review and approval by the CEQ Chair in consultation with the OMB Director under section 5 of this order. In establishing the target, the agency head shall consider reductions associated with: (i) pursuing opportunities with vendors and contractors to address and incorporate incentives to reduce greenhouse gas emissions(such as changes to manufacturing, utility or delivery services, modes of transportation used, or other changes in supply chain activities); (ii) implementing strategies and accommodations for transit, travel, training, and conferencing that actively support lower-carbon commuting and travel by agency staff; (iii) greenhouse gas emission reductions associated with pursuing other relevant goals in this section; and (iv) developing and implementing innovative policies and practices to address scope 3 greenhouse gas emissions unique to agency operations; (c) establish and report to the CEQ Chair and OMB Director a comprehensive inventory of absolute greenhouse gas emissions, including scope 1, scope 2, and specified scope 3 emissions(i) within 15 months of the date of this order for fiscal year 2010, and (ii) thereafter, annually at the end of January, for the preceding fiscal year. (d) improve water use efficiency and management by: (i) reducing potable water consumption intensity by2 percent annually through fiscal year 2020, or26 percent by the end of fiscal year 2020,relative to a baseline of the agency's water consumption in fiscal year 2007, by implementing water management strategies including water-efficient and low-flow fixtures and efficient cooling towers; (ii) reducing agency industrial, landscaping, and agricultural water consumption by 2 percent annually or 20 percent by the end of fiscal year 2020 relative to a baseline of the agency's industrial, landscaping, and agricultural water consumption in fiscal year2010; (iii) consistent with State law, identifying, promoting, and implementing water reuse strategies that reduce potable water consumption; and (iv) implementing and achieving the objectives identified in the storm water management guidance referenced in section 14 of this order; (e) promote pollution prevention and eliminate waste by: (i) minimizing the generation of waste and pollutants through source reduction; (ii) diverting at least 50 percent of non-hazardous solid waste, excluding construction and demolition debris, by the end of fiscal year2015; (iii) diverting at least 50 percent of construction and demolition materials and debris by the end of fiscal year 2015; (iv) reducing printing paper use and acquiring uncoated printing and writing paper containing at least 30 percent post consumer fiber; (v) reducing and minimizing the quantity of toxicant hazardous chemicals and materials acquired, used, or disposed of; (vi) increasing diversion of compostable and organic material from the waste stream; (vii) implementing integrated pest management and other appropriate landscape management practices; (viii) increasing agency use of acceptable alternative chemicals and processes in keeping with the agency's procurement policies; (ix) decreasing agency use of chemicals where such decrease will assist the agency in achieving greenhouse gas emission reduction targets under section 2(a) and (b) of this order; and (x) reporting in accordance with the requirements of sections 301 through 313 of the Emergency Planning and Community Right-to-Know Act of1986 (42 U.S.C. 11001 et seq.); (f) advance regional and local integrated planning by: (i) participating in regional transportation planning and recognizing existing community transportation infrastructure; (ii) aligning Federal policies to increase the effectiveness of local planning for energy choices such as locally generated renewable energy; (iii) ensuring that planning for new Federal facilities or new leases includes consideration of sites that are pedestrian friendly, near existing employment centers, and accessible to public transit, and emphasizes existing central cities and, in rural communities, existing or planned town centers; (iv) identifying and analyzing impacts from energy usage and alternative energy sources in all Environmental Impact Statements and Environmental Assessments for proposals for new or expanded Federal facilities under the National Environmental Policy Act of 1969, as amended (42 U.S.C. 4321 et seq.); and (v) coordinating with regional programs for Federal, State, tribal, and local ecosystem, watershed, and environmental management; (g) implement high performance sustainable Federal building design, construction, operation and management, maintenance, and deconstruction including by: (i) beginning in 2020 and thereafter, ensuring that all new Federal buildings that enter the planning process are designed to achieve zero-net-energy by 2030; (ii) ensuring that all new construction, major renovation, or repair and alteration of Federal buildings complies with the Guiding Principles for Federal Leadership in High Performance and Sustainable Buildings (Guiding Principles); (iii) ensuring that at least 15 percent of the agency's existing buildings (above 5,000 gross square feet) and building leases (above 5,000 gross square feet) meet the Guiding Principles by fiscal year 2015 and that the agency makes annual progress toward 100-percent conformance with the Guiding Principles for its building inventory; (iv) pursuing cost-effective, innovative strategies, such as highly reflective and vegetated roofs, to minimize consumption of energy, water, and materials; (v) managing existing building systems to reduce the consumption of energy, water, and materials, and identifying alternatives to renovation that reduce existing assets' deferred maintenance costs; (vi) when adding assets to the agency's real property inventory, identifying opportunities to consolidate and dispose of existing assets, optimize the performance of the agency's real-property portfolio, and reduce associated environmental impacts; and (vii) ensuring that rehabilitation of federally owned historic buildings utilizes best practices and technologies in retrofitting to promote long-term viability of the buildings; (h) advance sustainable acquisition to ensure that95 percent of new contract actions including task and delivery orders, for products and services with the exception of acquisition of weapon systems, are energy-efficient (Energy Star or Federal Energy Management Program (FEMP) designated), water-efficient, biobased, environmentally preferable (e.g., Electronic Product Environmental Assessment Tool (EPEAT) certified), non-ozone depleting, contain recycled content, or are non-toxic or less-toxic alternatives, where such products and services meet agency performance requirements; (i) promote electronics stewardship, in particular by: (i) ensuring procurement preference for EPEAT-registered electronic products; (ii) establishing and implementing policies to enable power management, duplex printing, and other energy-efficient or environmentally preferable features on all eligible agency electronic products; (iii) employing environmentally sound practices with respect to the agency's disposition of all agency excess or surplus electronic products; (iv) ensuring the procurement of Energy Star and FEMP designated electronic equipment; (v) implementing best management practices for energy-efficient management of servers and Federal data centers; and (j) sustain environmental management, including by: (i) continuing implementation of formal environmental management systems at all appropriate organizational levels; and (ii) ensuring these formal systems are appropriately implemented and maintained to achieve the performance necessary to meet the goals of this order. Sec. 3. Steering Committee on Federal Sustainability. The OMB Director and the CEQ Chair shall: (a) establish an interagency Steering Committee (Steering Committee) on Federal Sustainability composed of the Federal Environmental Executive, designated under section 6 of Executive Order 13423 of January 24, 2007, and Agency Senior Sustainability Officers, designated under section 7 of this order, and that shall: (i) serve in the dual capacity of the Steering Committee on Strengthening Federal Environmental, Energy, and Transportation Management designated by the CEQ Chair pursuant to section 4 of Executive Order 13423; (ii) advise the OMB Director and the CEQ Chair on implementation of this order; (iii) facilitate the implementation of each agency's Strategic Sustainability Performance Plan; and (iv) share information and promote progress towards the goals of this order; (b) enlist the support of other organizations within the Federal Government to assist the Steering Committee in addressing the goals of this order; (c) establish and disband, as appropriate, interagency subcommittees of the Steering Committee, to assist the Steering Committee in carrying out its responsibilities; (d) determine appropriate Federal actions to achieve the policy of section 1 and the goals of section 2 of this order; (e) ensure that Federal agencies are held accountable for conformance with the requirements of this order; and (f) in coordination with the Department of Energy's Federal Energy Management Program and the Office of the Federal Environmental Executive designated under section 6 of Executive Order 13423, provide guidance and assistance to facilitate the development of agency targets for greenhouse gas emission reductions required under subsections 2(a) and (b) of this order. Sec. 4. Additional Duties of the Director of the Office of Management and Budget. In addition to the duties of the OMB Director specified elsewhere in this order, the OMB Director shall Sec. 6. Duties of the Federal Environmental Executive. The Federal Environmental Executive designated by the President to head the Office of the Federal Environmental Executive, pursuant to section 6 of Executive Order 13423, shall: (a) identify strategies and tools to assist Federal implementation efforts under this order, including through the sharing of best practices from successful Federal sustainability efforts; and (b) monitor and advise the CEQ Chair and the OMB Director on the agencies' implementation of this order and their progressing achieving the order=s policies and goals. Sec. 7. Agency Senior Sustainability Officers. (a) Within 30 days of the date of this order, the head of each agency shall designate from among the agency's senior management officials a Senior Sustainability Officer who shall be accountable for agency conformance with the requirements of this order; and shall report such designation to the OMB Director and the CEQ Chair. (b) The Senior Sustainability Officer for each agency shall perform the functions of the senior agency official designated by the head of each agency pursuant to section 3(d)(i) of Executive Order 13423 and shall be responsible for: (i) preparing the targets for agency-wide reductions and the inventory of greenhouse gas emissions required under subsections 2(a), (b), and (c) of this order; (ii) within 240 days of the date of this order, and annually thereafter, preparing and submitting to the CEQ Chair and the OMB Director, for their review and approval, a multi-year Strategic Sustainability Performance Plan (Sustainability Plan or Plan) as described in section 8 of this order; (iii) preparing and implementing the approved Plan in coordination with appropriate offices and organizations within the agency including the General Counsel, Chief Information Officer, Chief Acquisition Officer, Chief Financial Officer, and Senior Real Property Officers, and in coordination with other agency plans, policies, and activities; (iv) monitoring the agency's performance and progressing implementing the Plan, and reporting the performance and progress to the CEQ Chair and the OMB Director, on such schedule and in such format as the Chair and the Director may require; and (v) reporting annually to the head of the agency on the adequacy and effectiveness of the agency's Plan in implementing this order. Sec. 8. Agency Strategic Sustainability Performance Plan. Each agency shall develop, implement, and annually update an integrated Strategic Sustainability Performance Plan that will prioritize agency actions based on lifecycle return on investment. Each agency Plan and update shall be subject to approval by the OMB Director under section 4 of this order. With respect to the period beginning in fiscal year 2011 and continuing through the end of fiscal year 2021, each agency Plans hall:
(a)
include a policy statement committing the agency to compliance with environmental and energy statutes, regulations, and Executive Orders;
(b)
achieve the sustainability goals and targets, including greenhouse gas reduction targets, established under section 2 of this order;
(c)
be integrated into the agency's strategic planning and budget process, including the agency's strategic plan under section 3 of the Government Performance and Results Act of 1993,as amended (5 U.S.C. 306);
(d)
identify agency activities, policies, plans, procedures, and practices that are relevant to the agency's implementation of this order, and where necessary, provide for development and implementation of new or revised policies, plans, procedures, and practices;
(e)
identify specific agency goals, a schedule, milestones, and approaches for achieving results, and quantifiable metrics for agency implementation of this order;
(f)
take into consideration environmental measures as well as economic and social benefits and costs in evaluating projects and activities based on lifecycle return on investment;
(g)
outline planned actions to provide information about agency progress and performance with respect to achieving the goals of this order on a publicly available Federal website;
(h)
incorporate actions for achieving progress metrics identified by the OMB Director and the CEQ Chair;
(i)
evaluate agency climate-change risks and vulnerabilities to manage the effects of climate change on the agency's operations and mission in both the short and long term; and
(j)
identify in annual updates opportunities for improvement and evaluation of past performance in order to extend or expand projects that have net lifecycle benefits, and reassess or discontinue under-performing projects.
Sec. 9. Recommendations for Greenhouse Gas Accounting and Reporting. The Department of Energy, through its Federal Energy Management Program, and in coordination with the Environmental Protection Agency, the Department of Defense, the General Services Administration, the Department of the Interior, the Department of Commerce, and other agencies as appropriate, shall:
(a)
within 180 days of the date of this order develop and provide to the CEQ Chair recommended Federal greenhouse gas reporting and accounting procedures for agencies to use in carrying out their obligations under subsections 2(a), (b), and
(c)
of this order, including procedures that will ensure that agencies :
(i) accurately and consistently quantify and account
for greenhouse gas emissions from all scope 1,
2, and 3 sources, using accepted greenhouse gas
accounting and reporting principles, and
identify appropriate opportunities to revise the
fiscal year 2008 baseline to address significant
changes in factors affecting agency emissions
such as reorganization and improvements in
accuracy of data collection and estimation
procedures or other major changes that would
otherwise render the initial baseline
information unsuitable;
(ii) consider past Federal agency efforts to reduce
greenhouse gas emissions; and
(iii) consider and account for sequestration and
emissions of greenhouse gases resulting from
Federal land management practices;
(b) within 1 year of the date of this order, to ensure
consistent and accurate reporting under this section, provide
electronic accounting and reporting capability for the Federal
greenhouse gas reporting procedures developed under
subsection (a) of this section, and to the extent practicable,
ensure compatibility between this capability and existing Federal
agency reporting systems; and
(c) every 3 years from the date of the CEQ Chair's
issuance of the initial version of the reporting guidance, and
as otherwise necessary, develop and provide recommendations to
the CEQ Chair for revised Federal greenhouse gas reporting
procedures for agencies to use in implementing subsections 2(a),
(b), and (c) of this order.
Sec. 10. Recommendations for Sustainable Locations for
Federal Facilities. Within 180 days of the date of this order,
the Department of Transportation, in accordance with its
Sustainable Partnership Agreement with the Department of Housing
and Urban Development and the Environmental Protection Agency,
and in coordination with the General Services Administration, the
Department of Homeland Security, the Department of Defense, and
other agencies as appropriate, shall:
(a) review existing policies and practices associated with
site selection for Federal facilities; and
(b) provide recommendations to the CEQ Chair regarding
sustainable location strategies for consideration in
Sustainability Plans. The recommendations shall be consistent
with principles of sustainable development including prioritizing
central business district and rural town center locations,
prioritizing sites well served by transit, including site design
elements that ensure safe and convenient pedestrian access,
consideration of transit access and proximity to housing
affordable to a wide range of Federal employees, adaptive reuse
or renovation of buildings, avoidance of development of sensitive
land resources, and evaluation of parking management strategies.
Sec. 11. Recommendations for Federal Local Transportation
Logistics. Within 180 days of the date of this order, the
General Services Administration, in coordination with the
Department of Transportation, the Department of the Treasury,
the Department of Energy, the Office of Personnel Management,
Sec. 15. Regional Coordination. Within 180 days of the
date of this order, the Federal Environmental Executive shall
develop and implement a regional implementation plan to support
the goals of this order taking into account energy and
environmental priorities of particular regions of the
United States .
Sec. 16. Agency Roles in Support of Federal Adaptation
Strategy. In addition to other roles and responsibilities of
agencies with respect to environmental leadership as specified
in this order, the agencies shall participate actively in the
interagency Climate Change Adaptation Task Force, which is
already engaged in developing the domestic and international
dimensions of a U.S. strategy for adaptation to climate change,
and shall develop approaches through which the policies and
practices of the agencies can be made compatible with and
reinforce that strategy. Within 1 year of the date of this
order the CEQ Chair shall provide to the President, following
consultation with the agencies and the Climate Change Adaptation
Task Force, as appropriate, a progress report on agency actions
in support of the national adaptation strategy and
recommendations for any further such measures as the CEQ Chair
may deem necessary.
Sec. 17. Limitations. (a) This order shall apply to
an agency with respect to the activities, personnel, resources,
and facilities of the agency that are located within the
United States . The head of an agency may provide that this order
shall apply in whole or in part with respect to the activities,
personnel, resources, and facilities of the agency that are not
located within the United States , if the head of the agency
determines that such application is in the interest of the
United States .
(b) The head of an agency shall manage activities,
personnel, resources, and facilities of the agency that are
not located within the United States , and with respect to which
the head of the agency has not made a determination under
subsection (a) of this section, in a manner consistent with the
policy set forth in section 1 of this order to the extent the
head of the agency determines practicable.
Sec. 18. Exemption Authority.
(a) The Director of National Intelligence may exempt
an intelligence activity of the United States , and related
personnel, resources, and facilities, from the provisions of this
order, other than this subsection and section 20, to the extent
the Director determines necessary to protect intelligence sources
and methods from unauthorized disclosure.
(b) The head of an agency may exempt law enforcement
activities of that agency, and related personnel, resources, and
facilities, from the provisions of this order, other than this
subsection and section 20, to the extent the head of an agency
determines necessary to protect undercover operations from
unauthorized disclosure.
(c) (i) The head of an agency may exempt law enforcement,
protective, emergency response, or military
tactical vehicle fleets of that agency from the
provisions of this order, other than this
subsection and section 20. (ii) Heads of agencies shall manage fleets to which
paragraph (i) of this subsection refers in a
manner consistent with the policy set forth in
section 1 of this order to the extent they
determine practicable.
(d) The head of an agency may exempt particular agency
activities and facilities from the provisions of this order,
other than this subsection and section 20, where it is in the
interest of national security. If the head of an agency issues
an exemption under this section, the agency must notify the CEQ
Chair in writing within 30 days of issuance of the exemption
under this subsection. To the maximum extent practicable, and
without compromising national security, each agency shall strive
to comply with the purposes, goals, and implementation steps in
this order.
(e) The head of an agency may submit to the President,
through the CEQ Chair, a request for an exemption of an agency
activity, and related personnel, resources, and facilities, from
this order.
Sec. 19. Definitions. As used in this order:
(a) "absolute greenhouse gas emissions" means total
greenhouse gas emissions without normalization for activity
levels and includes any allowable consideration of sequestration;
(b) "agency" means an executive agency as defined in
section 105 of title 5, United States Code, excluding the
Government Accountability Office;
(c) "alternative fuel vehicle" means vehicles defined
by section 301 of the Energy Policy Act of 1992, as amended
(42 U.S.C. 13211), and otherwise includes electric fueled
vehicles, hybrid electric vehicles, plug-in hybrid electric
vehicles, dedicated alternative fuel vehicles, dual fueled
alternative fuel vehicles, qualified fuel cell motor vehicles,
advanced lean burn technology motor vehicles, self-propelled
vehicles such as bicycles and any other alternative fuel vehicles
that are defined by statute;
(d) "construction and demolition materials and debris"
means materials and debris generated during construction,
renovation, demolition, or dismantling of all structures and
buildings and associated infrastructure;
(e) "divert" and "diverting" means redirecting materials
that might otherwise be placed in the waste stream to recycling
or recovery, excluding diversion to waste-to-energy facilities;
(f) "energy intensity" means energy consumption per square
foot of building space, including industrial or laboratory
facilities;
(g) "environmental" means environmental aspects of internal
agency operations and activities, including those aspects related
to energy and transportation functions;
(h) "excluded vehicles and equipment" means any vehicle,
vessel, aircraft, or non-road equipment owned or operated by an
agency of the Federal Government that is used in: (i) combat support, combat service support, tactical or relief operations, or training for such operations; (ii) Federal law enforcement (including protective service and investigation); (iii) emergency response (including fire and rescue);or (iv) spaceflight vehicles (including associated ground-support equipment); (i) "greenhouse gases" means carbon dioxide, methane, nitrous oxide, hydro fluorocarbons, per fluorocarbons, and sulfur hexafluoride; (j) "renewable energy" means energy produced by solar, wind, biomass, landfill gas, ocean (including tidal, wave, current, and thermal), geothermal, municipal solid waste, or new hydroelectric generation capacity achieved from increased efficiency or additions of new capacity at an existing hydroelectric project; (k) "scope 1, 2, and 3" mean; (i) scope 1: direct greenhouse gas emissions from sources that are owned or controlled by the Federal agency; (ii) scope 2: direct greenhouse gas emissions resulting from the generation of electricity, heat, or steam purchased by a Federal agency; and (iii) scope 3: greenhouse gas emissions from sources not owned or directly controlled by a Federal agency but related to agency activities such as vendor supply chains, delivery services, and employee travel and commuting; (l) "sustainability" and "sustainable" mean to create and maintain conditions, under which humans and nature can exist in productive harmony, that permit fulfilling the social, economic, and other requirements of present and future generations; (m) "United States" means the fifty States, the District of Columbia, the Commonwealth of Puerto Rico, Guam, American Samoa, the United States Virgin Islands, and the Northern Mariana Islands, and associated territorial waters and airspace; (n) "water consumption intensity" means water consumption per square foot of building space; and (o) "zero-net-energy building" means a building that is designed, constructed, and operated to require a greatly reduced quantity of energy to operate, meet the balance of energy needs from sources of energy that do not produce greenhouse gases, and therefore result in no net emissions of greenhouse gases and be economically viable. Sec. 20. General Provisions. (a) This order shall be implemented in a manner consistent with applicable law and subject to the availability of appropriations. (b)
Nothing in this order shall be construed to impair or otherwise affect the functions of the OMB Director relating to budgetary, administrative, or legislative proposals.
(c)
This order is intended only to improve the internal management of the Federal Government and is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person.
BARACK OBAMA
THE WHITE HOUSE, October 5, 2009.
CERCLA's Unrecoverable Natural Resource Damages: Injuries to Cultural Resources and Services
Confusion over what damages are recoverable as natural resource damages (NRD) under the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (CERCLA) and other federal statutes abounds, giving credence to the oft-repeated phrase that “CERCLA is not a model of legislative clarity.” [1] Among other things, confusion appears in discussions among the Department of the Interior , legislators, and courts regarding the recoverability of cultural resource damages as NRD under CERCLA. But the statute and caselaw are clear. As demonstrated here, CERCLA establishes that injuries to cultural resources, [2] no matter how they are described, are not recoverable as NRD.
Natural resources within the meaning of CERCLA invoke geological and biological entities—“land, fish, wildlife, biota, air, water, ground water, drinking water supplies, and other such resources” that belong to, are managed by, are held in trust by, or pertain to or are controlled by the United States, state or local governments, or Indian tribes . [9] NRD claims arise from injuries to such resources from releases and threatened releases of hazardous substances. Under CERCLA's NRD scheme, owners, operators, arrangers , and transporters can be liable for “damages for injury to, destruction of, or loss of natural resources, including the reasonable costs of assessing such injury, destruction, or loss resulting from [a release of hazardous substances].” [10] That is, NRD are calculated by adding the cost of restoring the injured resource, compensation for the interim loss of use of the resource from injury to restoration, and the cost of assessing the damages. [11]
Private parties may not bring suit for NRD recovery. CERCLA does not allow private parties to recover damages for injuries to natural resources held in trust by federal, state, or tribal governments, nor does it allow federal, state, or tribal trustees to recover damages for injuries to private property or private interests. [12] “[D]amage to private property—absent any government involvement, management or control—is not covered by the natural resource damage provisions of [CERCLA].” [13] Instead, NRD liability flows to the trustees of the natural resources: the United States, and the individual states, “for natural resources within the State or belonging to, managed by, controlled by, or appertaining to such State,” and Indian tribes “for natural resources belonging to, managed by, controlled by, or appertaining to such tribe.” [14] A government or tribe's ownership, management, control, or trusteeship over the resource is a question of fact and law . [15]
Are Injuries to Cultural Resources Recoverable?
One question that arises is whether injuries to cultural resources are compensable as NRD under CERCLA. At the very least, it is clear that unlike some of the federal statutes that include NRD recovery schemes, CERCLA's definition of “natural resources” does not specifically reference cultural resources. That is, of the five federal statutes that provide for the recovery of NRD—the CWA, OPA, NMSA, the PSRPA, and CERCLA—both the NMSA and the PSRPA provide for recovery for injuries to natural resources that specifically include “non-living,” or “cultural” resources. [16] CERCLA, OPA, and the CWA do not.
In light of the broad resource definitions in the NMSA and the PSRPA, the exclusion of reference to “non-living” or “cultural” resources in CERCLA's resource definition suggests that injuries to cultural resources, however characterized, are not recoverable under CERCLA. The OPA and CWA define “natural resources” as does CERCLA only in the context of water, air, geological, and biological resources, and without any reference to “cultural resources.” [17] By comparison, the NMSA defines protected marine resources as including any “nonliving” resource that “contributes to the conservation, recreational, ecological, historical, educational, cultural , archeological, scientific, or aesthetic value of a sanctuary.” [18] Similarly, the PSRPA broadly defines protected resources in the National Park system as any “living or non-living resource,” the latter of which has been interpreted to include cultural resources. [19] Given that only five federal statutes provide for NRD recovery, that the NMSA's resource definition includes reference to “nonliving” resources and “cultural” values, and that the PSRPA's resource definition likewise includes reference to “non-living” resources, which have been interpreted to include cultural resources, the fact that CERCLA's resource definition excludes reference to “non-living” or “cultural” resources suggests that CERCLA does not establish recovery for injuries to cultural resources, regardless of how such injuries are characterized.
The Department of the Interior (Department or DOI) appears to have confirmed this fact. But in so doing, the Department has generated confusion by attempting to distinguish between cultural resources and cultural services , which seems to be a distinction without a practical difference. In 1994, the Department promulgated regulations for assessing NRD under the CWA and CERCLA. [20] In the “comment” and “response to comment” section of the preamble to its final regulations, the DOI sowed confusion regarding whether injuries to cultural resources are recoverable as injuries to natural resources under CERCLA.
First, the Department stated that “ archaeological ” and “ cultural ” resources are not “land, fish, wildlife, biota , air, ground water, drinking water supplies, or other such resources” such that archaeological and cultural resources “do not constitute ‘natural' resources under CERCLA.” [21] Unfortunately, the Department did not stop there. The DOI went on to instruct that although archaeological and cultural resources are not “natural resources” under CERCLA, federal, state, and tribal trustees may “include the loss of archaeological and other cultural services provided by a natural resource in a natural resource damage assessment.” [22] The DOI then tried to provide an example of a scenario in which the loss of an archaeological or cultural service provided by a natural resource might be recoverable as NRD:
For example, if land constituting a CERCLA-defined natural resource contains archaeological artifacts, then that land might provide the service of supporting archaeological research. If an injury to the land causes a reduction in the level of service (archaeological research) that could be performed, trustee officials could recover damages for the lost service. [23]
This example has done little to clarify or explain how recovery for “the loss of archaeological and other cultural services” (which DOI suggests is provided for under CERCLA's NRD scheme) is different than recovery for injuries to archaeological and cultural resources (which DOI acknowledges that CERCLA does not allow).
Since the 1994 regulations, the Department has continued to publish conflicting information about the recoverability of cultural resource damages as NRD under CERCLA. For example, in 2003 the National Park Service , one of DOI's eight bureaus, published its Damage Assessment and Restoration Handbook (Handbook) to provide guidance for damages assessment within the National Park Service. [24] The Handbook largely addresses NRD assessments under the PSRPA, and the National Park Service confirms therein that resources protected by the PSRPA include both natural resources and, specifically, “cultural resources.” [25] The Handbook contains a comparison of recoverable NRD under the PSRPA, CERCLA, and OPA. According to the National Park Service, while CERCLA and OPA only protect natural resources and associated services, the PSRPA “ extends to cultural resources (e.g., historic sites , structures, objects, and landscapes) and physical facilities (e.g., signage, buildings, docks, and roads), and their associated services.” [26] Thus, as stated the Handbook, the NPS and DOI frankly acknowledge that the PSRPA “covers a broader range of resources” than CERCLA and OPA, which “do not necessarily address injuries to cultural resources and park facilities.” [27]
The DOI's confusing distinction appears to have had little success in convincing lawmakers and practitioners that there is a meaningful difference between the two theories of recovery. In 1996, various “Industry Petitioners” challenged the 1994 DOI regulations for NRD assessments before the D.C. Circuit in Kennecott Utah Copper Corp. v. U.S. Department of the Interior . [29] There, the industry petitioners challenged DOI's instructions in the preamble that an NRD assessment may include the archaeological and cultural services provided by a natural resource, pointing out that archaeological and cultural resources are conspicuously absent from CERCLA's definition of “natural resources.” [30] Unfortunately, the court held that the issue was not ripe for review. However, in so holding, the court characterized DOI's instructions as allowing for “recovery for injury to non-natural resources” and not, as DOI would have it, as allowing for recovery for injury to archaeological or cultural services provided by a natural resource. [31]
Furthermore, in Coeur D'Alene Tribe v. Asarco, Inc. , the District Court for the District of Idaho determined that “cultural uses of water and soil by [the plaintiff Indian tribe] are not recoverable as NRD.” [32] That is, the court held that cultural services supported by the water and soil resources at issue were not recoverable as NRD. Also, in its analysis of whether various plaintiffs were “trustees” of the resources sufficient to have standing to pursue NRD claims, the court was likewise not persuaded by the tribe's argument that the natural resources “appertain[ed] to” it. [33] The court noted that,
While the Tribe may use certain natural resources in the exercise of their cultural activities, such use does not rise to the level of making a natural resource “belong or be connected as a rightful part or attribute” for purposes of trusteeship analysis. [34]
Legislative history also suggests that Congress did not intend for CERCLA to provide for recovery for injury to cultural resources. In 1995, U.S. Representative Elizabeth Furse (D-Ore.), during a hearing of the Commerce, Trade, and Hazardous Materials Subcommittee , introduced an amendment to add to CERCLA a provision that would allow for the “recovery of NRD for so-called non-use values .” [35] In language similar to DOI's sometimes-used guidance that NRD assessments may include losses of archeological or cultural services provided by a resource, the amendment was described as providing for compensation under CERCLA's NRD provisions for the “intangible . . . aesthetic, cultural and religious values attached to natural resources that have been destroyed or damaged by toxic contamination.” [36] Representative Furse further explained that without the amendment she proposed, CERCLA would not allow for recovery of damages accounting for the cultural importance of an injured natural resource. [37] By way of example, she described Indian tribes that rely on salmon from the Columbia River for important tribal ceremonies . As explained by Representative Furse, the amendment was necessary to allow for compensation to Indian tribes for loss of that cultural ceremony stemming from injury to the salmon or the salmon's habitat . [38]
The DOI's confusing distinction appears to have had little success in convincing lawmakers and practitioners that there is a meaningful difference between the two theories of recovery. In 1996, various “Industry Petitioners” challenged the 1994 DOI regulations for NRD assessments before the D.C. Circuit in Kennecott Utah Copper Corp. v. U.S. Department of the Interior . [29] There, the industry petitioners challenged DOI's instructions in the preamble that an NRD assessment may include the archaeological and cultural services provided by a natural resource, pointing out that archaeological and cultural resources are conspicuously absent from CERCLA's definition of “natural resources.” [30] Unfortunately, the court held that the issue was not ripe for review. However, in so holding, the court characterized DOI's instructions as allowing for “recovery for injury to non-natural resources” and not, as DOI would have it, as allowing for recovery for injury to archaeological or cultural services provided by a natural resource. [31]
Furthermore, in Coeur D'Alene Tribe v. Asarco, Inc. , the District Court for the District of Idaho determined that “cultural uses of water and soil by [the plaintiff Indian tribe] are not recoverable as NRD.” [32] That is, the court held that cultural services supported by the water and soil resources at issue were not recoverable as NRD. Also, in its analysis of whether various plaintiffs were “trustees” of the resources sufficient to have standing to pursue NRD claims, the court was likewise not persuaded by the tribe's argument that the natural resources “appertain[ed] to” it. [33] The court noted that,
While the Tribe may use certain natural resources in the exercise of their cultural activities, such use does not rise to the level of making a natural resource “belong or be connected as a rightful part or attribute” for purposes of trusteeship analysis. [34]
Legislative history also suggests that Congress did not intend for CERCLA to provide for recovery for injury to cultural resources. In 1995, U.S. Representative Elizabeth Furse (D-Ore.), during a hearing of the Commerce, Trade, and Hazardous Materials Subcommittee , introduced an amendment to add to CERCLA a provision that would allow for the “recovery of NRD for so-called non-use values .” [35] In language similar to DOI's sometimes-used guidance that NRD assessments may include losses of archeological or cultural services provided by a resource, the amendment was described as providing for compensation under CERCLA's NRD provisions for the “intangible . . . aesthetic, cultural and religious values attached to natural resources that have been destroyed or damaged by toxic contamination.” [36] Representative Furse further explained that without the amendment she proposed, CERCLA would not allow for recovery of damages accounting for the cultural importance of an injured natural resource. [37] By way of example, she described Indian tribes that rely on salmon from the Columbia River for important tribal ceremonies . As explained by Representative Furse, the amendment was necessary to allow for compensation to Indian tribes for loss of that cultural ceremony stemming from injury to the salmon or the salmon's habitat . [38]
As has often been repeated, CERCLA's primary purposes are to ensure timely and effective cleanup of waste disposal sites, and to ensure that the parties responsible for such waste bear the costs of restoration and remediation. [43] In fact, the Department's 2008 amendments to the NRD assessment regulations were designed to emphasize restoration of resources over monetary damages. [44] CERCLA notably excludes “cultural resources” from its definition of natural resources. Therefore, cultural resource damages cannot be recovered as NRD, regardless of whether couched as losses of cultural services provided by a natural resource. These losses are the same, and until and unless Congress amends CERCLA, cultural resource damages are not recoverable.
As has often been repeated, CERCLA's primary purposes are to ensure timely and effective cleanup of waste disposal sites, and to ensure that the parties responsible for such waste bear the costs of restoration and remediation. [43] In fact, the Department's 2008 amendments to the NRD assessment regulations were designed to emphasize restoration of resources over monetary damages. [44] CERCLA notably excludes “cultural resources” from its definition of natural resources. Therefore, cultural resource damages cannot be recovered as NRD, regardless of whether couched as losses of cultural services provided by a natural resource. These losses are the same, and until and unless Congress amends CERCLA, cultural resource damages are not recoverable.
* Sarah Peterman is a senior associate in the Environmental Law Department at Farella Braun + Martel LLP . Her practice is focused on environmental and natural resources litigation and counseling.
[2] The analysis and arguments presented herein likely also establish that injuries to archaeological resources and services are not recoverable under CERCLA; however, that is the topic for another article, as this Article focuses on whether injuries to cultural resources and services are recoverable as NRD under CERCLA.
[8] 42 U.S.C. § 9607 (2006). CWA, OPA, NMSA, PSRPA, and CERCLA are not to be confused with the National Historic Preservation Act , 16 U.S.C. §§ 470–470X-6 (2006), which does not provide for recovery of NRD. Some states have separate laws authorizing recovery of NRD as well. See, e.g. , New Mexico v. Gen. Elec. Co., 467 F.3d 1223, 1245 n.31 (10th Cir. 2006); Legal Authority , N.M Off. Nat. Resources Tr. (Sept. 1, 2009); Natural Resource Damages , Dep't Envtl. Conservation (last visited Feb. 4, 2011); Natural Resource Restoration , Dep't Envtl. Prot. (Nov. 29, 2005).
[11] Note that CERCLA NRD assessments may include recovery for “non-use” values as well. 43 C.F.R. § 11.83(c)(1) (2010) (“The compensable value can include the economic value of lost services provided by the injured resource, including both public use and nonuse values.”); Notification and Coordination with Natural Resource Trustees , U.S. Envtl. Prot. Agency (Oct. 1, 2010).
[12] Coeur D'Alene Tribe v. Asarco, Inc., 280 F. Supp. 2d 1094, 1115 (D. Idaho 2003).
[14] 42 U.S.C. § 9607(f)(1) (2006); see 42 U.S.C. § 9607(f)(2)(B) (authorizing state governors to designate state officials, including local municipalities, to act as trustees for the purpose of recovering NRD).
HUNTINGTON, W.Va.... The Huntington District, U.S. Army Corps of
Engineers has issued a Department of the Army Permit to Highland Mining
Company to allow the discharge of fill material into 13,743 linear feet of
waters of the United States in conjunction with the Reylas Surface Mine in
Logan County, West Virginia.
The permit authorizes one valley fill, one sediment pond and several
mine-through areas. The permit, as authorized, represents the least
environmentally damaging practicable alternative while meeting the projects
stated purpose and need.
As a result of the Corps' permitting process, the applicant reduced
impacts to 400 linear feet of perennial stream while eliminating the future
extraction of approximately 2.5 million tons of coal. To mitigate for impacts
to waters of the United States, the applicant is required to restore 1,154
linear feet of stream channel and create 28,960 linear feet of stream channel
on-site.
After mining and reclamation, the site will have a post-mine land use of
emergency FEMA housing and associated infrastructure in accordance with the
West Virginia Department of Environmental Protection Surface Mining Control
and Reclamation Act Permit.
EPA Requests Extension on Clean Water Act Permit Requirement for Pesticide Discharges Today, the U.S. Environmental Protection Agency (EPA) is requesting an extension to allow more time for pesticide operators to obtain permits for pesticide discharges into U.S. waters. EPA is requesting that the deadline be extended from April 9, 2011 to October 31, 2011. During the period while the court is considering the extension request, permits for pesticide applications will not be required under the Clean Water Act. EPA is developing a pesticide general permit in response to the 6th Circuit Court?s 2009 decision, which found that discharges from pesticides into U.S. waters were pollutants, and, therefore, will require a permit under the Clean Water Act as of April 9, 2011. The final permit will reduce discharges of pesticides to aquatic ecosystems, thus helping to protect the nation?s waters and public health. The extension request is important to allow sufficient time for EPA to engage in Endangered Species Act consultation and complete the development of an electronic database to streamline requests for coverage under the Agency?s general permit. It also allows time for authorized states to finish developing their state permits and for permitting authorities to provide additional outreach to stakeholders on pesticide permit requirements. EPA?s general permit will be available to cover pesticide discharges to waters of the U.S. in MA, NH, NM, ID, OK, AK, DC, most U.S. territories and Indian country lands, and many federal facilities. For more information: http://www.epa.gov/npdes/pesticides *********************************************** EPA distributes its Pesticide Program Updates to external stakeholders and citizens who have expressed an interest in pesticide activities and decisions. This update service is part of EPA's continuing effort to improve public access to Federal pesticide information. For general questions on pesticides and pesticide poisoning prevention, contact the National Pesticide Information Center (NPIC), toll free, at: 1-800-858-7378, by E-mail at npic@ace.orst.edu, or by visiting their website at: http://npic.orst.edu/ To report an environmental violation, visit EPA's website at http://www.epa.gov/compliance/complaints/index.html For information about EPA's pesticide program, visit our homepage at: http://www.epa.gov/pesticides/
How Current is This? The court of appeals (other than the United States Court of Appeals for the Federal Circuit) has exclusive jurisdiction to enjoin, set aside, suspend (in whole or in part), or to determine the validity of— (1) all final orders of the Federal Communication Commission made reviewable by section 402 (a) of title 47 ; (2) all final orders of the Secretary of Agriculture made under chapters 9 and 20A of title 7 , except orders issued under sections 210 (e) , 217a , and 499g (a) of title 7 ; (3) all rules, regulations, or final orders of— (A) the Secretary of Transportation issued pursuant to section 50501 , 50502 , 56101–56104, or 57109 of title 46 or pursuant to part B or C of subtitle IV, subchapter III of chapter 311, chapter 313, or chapter 315 of title 49 ; and (B) the Federal Maritime Commission issued pursuant to section 305, 41304, 41308, or 41309 or chapter 421section 305, 41304, 41308, or 41309 or chapter 421 or 441 of title 46; (4) all final orders of the Atomic Energy Commission made reviewable by section 2239 of title 42 ; (5) all rules, regulations, or final orders of the Surface Transportation Board made reviewable by section 2321 of this title; (6) all final orders under section 812 of the Fair Housing Act; and (7) all final agency actions described in section 20114 (c) of title 49 . Jurisdiction is invoked by filing a petition as provided by section 2344 of this title.
§ 2350. Review in Supreme Court on certiorari or certification
How Current is This? (a) An order granting or denying an interlocutory injunction under section 2349 (b) of this title and a final judgment of the court of appeals in a proceeding to review under this chapter are subject to review by the Supreme Court on a writ of certiorari as provided by section 1254 (1) of this title. Application for the writ shall be made within 45 days after entry of the order and within 90 days after entry of the judgment, as the case may be. The United States, the agency, or an aggrieved party may file a petition for a writ of certiorari. (b) The provisions of section 1254 (2) of this title, regarding certification, and of section 2101 (f) of this title, regarding stays, also apply to proceedings under this chapter.
How Current is This? (a) The court of appeals has jurisdiction of the proceeding on the filing and service of a petition to review. The court of appeals in which the record on review is filed, on the filing, has jurisdiction to vacate stay orders or interlocutory injunctions previously granted by any court, and has exclusive jurisdiction to make and enter, on the petition, evidence, and proceedings set forth in the record on review, a judgment determining the validity of, and enjoining, setting aside, or suspending, in whole or in part, the order of the agency. (b) The filing of the petition to review does not of itself stay or suspend the operation of the order of the agency, but the court of appeals in its discretion may restrain or suspend, in whole or in part, the operation of the order pending the final hearing and determination of the petition. When the petitioner makes application for an interlocutory injunction restraining or suspending the enforcement, operation, or execution of, or setting aside, in whole or in part, any order reviewable under this chapter, at least 5 days' notice of the hearing thereon shall be given to the agency and to the Attorney General. In a case in which irreparable damage would otherwise result to the petitioner, the court of appeals may, on hearing, after reasonable notice to the agency and to the Attorney General, order a temporary stay or suspension, in whole or in part, of the operation of the order of the agency for not more than 60 days from the date of the order pending the hearing on the application for the interlocutory injunction, in which case the order of the court of appeals shall contain a specific finding, based on evidence submitted to the court of appeals, and identified by reference thereto, that irreparable damage would result to the petitioner and specifying the nature of the damage. The court of appeals, at the time of hearing the application for an interlocutory injunction, on a like finding, may continue the temporary stay or suspension, in whole or in part, until decision on the application.
§ 2344. Review of orders; time; notice; contents of petition; service
How Current is This? On the entry of a final order reviewable under this chapter, the agency shall promptly give notice thereof by service or publication in accordance with its rules. Any party aggrieved by the final order may, within 60 days after its entry, file a petition to review the order in the court of appeals wherein venue lies. The action shall be against the United States. The petition shall contain a concise statement of— (1) the nature of the proceedings as to which review is sought; (2) the facts on which venue is based; (3) the grounds on which relief is sought; and (4) the relief prayed. The petitioner shall attach to the petition, as exhibits, copies of the order, report, or decision of the agency. The clerk shall serve a true copy of the petition on the agency and on the Attorney General by registered mail, with request for a return receipt.
How Current is This? (a) Criminal Contempt.— In a trial for criminal contempt for violating an injunction or restraining order issued under this chapter, the violation of which is also a violation of this chapter, the defendant may demand a jury trial. The defendant shall be tried as provided in rule 42(b) of the Federal Rules of Criminal Procedure (18 App. U.S.C.). (b) Subpenas For Witnesses.— A subpena for a witness required to attend a district court of the United States in an action brought under this chapter may be served in any judicial district. (c) Review of Agency Action.— Except as provided in section 20104 (c) of this title, a proceeding to review a final action of the Secretary of Transportation under this part or, as applicable to railroad safety, chapter 51 or 57 of this title shall be brought in the appropriate court of appeals as provided in chapter 158 of title 28 .
§ 210. Proceedings before Secretary for violations
(f) Enforcement of orders If the defendant does not comply with an order for the payment of money within the time limit in such order, the complainant, or any person for whose benefit such order was made, may within one year of the date of the order file in the district court of the United States for the district in which he resides or in which is located the principal place of business of the defendant or in any State court having general jurisdiction of the parties, a petition setting forth briefly the causes for which he claims damages, and the order of the Secretary in the premises. Such suit in the district court shall proceed in all respects like other civil suits for damages except that the findings and orders of the Secretary shall be prima facie evidence of the facts therein stated, and the petitioner shall not be liable for costs in the district court nor for costs at any subsequent stage of the proceedings unless they accrue upon his appeal. If the petitioner finally prevails, he shall be allowed a reasonable attorney's fee to be taxed and collected as a part of the costs of the suit.
How Current is This? (a) Determination by Secretary of Agriculture of amount of damages; order for payment If after a hearing on a complaint made by any person under section 499f of this title, or without hearing as provided in subsections (c) and (d) of section 499f of this title, or upon failure of the party complained against to answer a complaint duly served within the time prescribed, or to appear at a hearing after being duly notified, the Secretary determines that the commission merchant, dealer, or broker has violated any provision of section 499b of this title, he shall, unless the offender has already made reparation to the person complaining, determine the amount of damage, if any, to which such person is entitled as a result of such violation and shall make an order directing the offender to pay to such person complaining such amount on or before the date fixed in the order. The Secretary shall order any commission merchant, dealer, or broker who is the losing party to pay the prevailing party, as reparation or additional reparation, reasonable fees and expenses incurred in connection with any such hearing. If, after the respondent has filed his answer to the complaint, it appears therein that the respondent has admitted liability for a portion of the amount claimed in the complaint as damages, the Secretary under such rules and regulations as he shall prescribe, unless the respondent has already made reparation to the person complaining, may issue an order directing the respondent to pay to the complainant the undisputed amount on or before the date fixed in the order, leaving the respondent's liability for the disputed amount for subsequent determination. The remaining disputed amount shall be determined in the same manner and under the same procedure as it would have been determined if no order had been issued by the Secretary with respect to the undisputed sum. (b) Failure to comply with order of Secretary; suit to enforce liability; order as evidence; costs and fees If any commission merchant, dealer, or broker does not pay the reparation award within the time specified in the Secretary's order, the complainant, or any person for whose benefit such order was made, may within three years of the date of the order file in the district court of the United States for the district in which he resides or in which is located the principal place of business of the commission merchant, dealer, or broker, or in any State court having general jurisdiction of the parties, a petition setting forth briefly the causes for which he claims damages and the order of the Secretary in the premises. The orders, writs, and processes of the district courts may in these cases run, be served, and be returnable anywhere in the United States. Such suit in the district court shall proceed in all respects like other civil suits for damages, except that the findings and orders of the Secretary shall be prima-facie evidence of the facts therein stated, and the petitioner shall not be liable for costs in the district court, nor for costs at any subsequent state of the proceedings, unless they accrue upon his appeal. If the petitioner finally prevails, he shall be allowed a reasonable attorney's fee, to be taxed and collected as a part of the costs of the suit. (c) Appeal from reparation order; proceedings Either party adversely affected by the entry of a reparation order by the Secretary may, within thirty days from and after the date of such order, appeal therefrom to the district court of the United States for the district in which said hearing was held: Provided, That in cases handled without a hearing in accordance with subsections (c) and (d) of section 499f of this title or in which a hearing has been waived by agreement of the parties, appeal shall be to the district court of the United States for the district in which the party complained against is located. Such appeal shall be perfected by the filing with the clerk of said court a notice of appeal, together with a petition in duplicate which shall recite prior proceedings before the Secretary and shall state the grounds upon which the petitioner relies to defeat the right of the adverse party to recover the damages claimed, with proof of service thereof upon the adverse party. Such appeal shall not be effective unless within thirty days from and after the date of the reparation order the appellant also files with the clerk a bond in double the amount of the reparation awarded against the appellant conditioned upon the payment of the judgment entered by the court, plus interest and costs, including a reasonable attorney's fee for the appellee, if the appellee shall prevail. Such bond shall be in the form of cash, negotiable securities having a market value at least equivalent to the amount of bond prescribed, or the undertaking of a surety company on the approved list of sureties issued by the Treasury Department of the United States. The clerk of court shall immediately forward a copy thereof to the Secretary of Agriculture, who shall forthwith prepare, certify, and file in said court a true copy of the Secretary's decision, findings of fact, conclusions, and order in said case, together with copies of the pleadings upon which the case was heard and submitted to the Secretary. Such suit in the district court shall be a trial de novo and shall proceed in all respects like other civil suits for damages, except that the findings of fact and order or orders of the Secretary shall be prima-facie evidence of the facts therein stated. Appellee shall not be liable for costs in said court and if appellee prevails he shall be allowed a reasonable attorney's fee to be taxed and collected as a part of his costs. Such petition and pleadings certified by the Secretary upon which decision was made by him shall upon filing in the district court constitute the pleadings upon which said trial de novo shall proceed subject to any amendment allowed in that court. (d) Suspension of license for failure to obey reparation order or appeal Unless the licensee against whom a reparation order has been issued shows to the satisfaction of the Secretary within five days from the expiration of the period allowed for compliance with such order that he has either taken an appeal as herein authorized or has made payment in full as required by such order his license shall be suspended automatically at the expiration of such five-day period until he shows to the satisfaction of the Secretary that he has paid the amount therein specified with interest thereon to date of payment: Provided, That if on appeal the appellee prevails or if the appeal is dismissed the automatic suspension of license shall become effective at the expiration of thirty days from the date of the judgment on the appeal, but if the judgment is stayed by a court of competent jurisdiction the suspension shall become effective ten days after the expiration of such stay, unless prior thereto the judgment of the court has been satisfied.
Clean Water
H.R. 1 contains language (Section 1747) that would prevent EPA and the Army Corps of Engineers from issuing or enforcing new guidance regarding which water bodies in the United States are protected under the Clean Water Act.
The EPA requests court to approve a six-month delay for implementation of new pesticide permitting process.
House introduces bill, HR 872, to address permitting excesses.
Commodity groups "fired up" to take on permits.
If an EPA-requested six-month extension is granted by the courts, the bulk of the 2011 cropping season will avoid onerous new pesticide permitting requirements long in development at the agency. Even if the EPA had not made the March 3 request, the new National Pollution Discharge Elimination System (NPDES) permits are the target of a recent House bill.
Until a Sixth Circuit Court three-judge panel ruling in early 2009, the EPA was content with exempting label-adhering pesticide applications from the permitting requirements of the Clean Water Act. That changed when the panel ruled pesticides are “pollutants” in regard to the CWA and the EPA must require farmers to obtain NPDES permits for applications made to, over or near bodies of water.Further complicating the situation: the new permits under CWA would be duplicative since pesticide applications are already regulated under the Federal Insecticide, Fungicide, Rodenticide Act (FIFRA).
While environmental groups cheered the court decision, the burdensome NPDES permitting process quickly became a concern for, among others, producers, ranchers, consultants, applicators, commodity groups, those tasked with mosquito control, and state governments.
Over the last several years, the courts – including the U.S. Supreme Court – have provided no help to those opposed to the new permits. Meanwhile, the EPA has struggled to meet NPDES implementation deadlines.
In fact, the EPA has been called out repeatedly for an unwillingness to admit the length of time required to set up such a permitting system. Last September, Arkansas Sen. Blanche Lincoln, then-Chairman of the Senate Agriculture Committee, was pointed in her remarks to EPA Administrator Lisa Jackson.
“CWA regulations are an unnecessary burden not only to applicators but to state regulatory authorities,” Lincoln told Jackson. “States like Arkansas are underfunded and struggle to keep up with existing laws and regulations and don't need to spend time enforcing regulations that don't improve the environment. … States are supposed to implement their permitting programs by April, 2011. Frankly, I'm amazed your agency expects states to implement that general permit into law in a mere four months time. … We're at the end of September and the possibility of (adhering to the proposed EPA) timeframe become more and more bleak.”
History
It's easy to forget that there was a time in the United States when EPA lacked the legal authority to clean up hazardous waste sites like Love Canal, New York, or to respond to emergencies such as train derailments involving dangerous chemicals. Even though the EPA had been established for ten years, it was not until December 11, 1980, that President Jimmy Carter signed into law the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA or Superfund). This historic new statute gave EPA the authority to clean up uncontrolled hazardous waste sites and spills.(To view an interactive 30-year timeline of the Superfund program, click here .)
Scope of Activities
The Superfund law authorizes the Agency and its partners to address abandoned, accidentally spilled, and illegally dumped hazardous wastes that pose current or future threats to human health or the environment. Through the years EPA has used its Superfund authority to address national crises like the Columbia space shuttle disaster, and hurricanes Katrina and Rita, and most recently, the British Petroleum oil spill response.
Equally important, however, are the sites where EPA has used its long-term cleanup authority to remediate sites where the hazardous waste release did not occur through a sudden tragedy like the Columbia shuttle disaster or through natural causes like hurricanes, but, rather, through years of poor and sometimes illegal waste management practices. Some of these sites can involve hundreds of chemicals with tons of contaminated waste spanning hundreds of acres; often the contamination affects groundwater in addition to soil. Sometimes housing developments are in close proximity if not on the site itself. These can be highly complex sites, requiring years of cleanup activities. Nonetheless, EPA works with its partners to address these sites so that they can be returned to communities for productive use.
Progress
For the past 30 years, the Superfund program has been making substantial progress protecting thousands of communities by cleaning up the Nation's most serious hazardous waste sites and by responding to thousands of oil and chemical spills. EPA has completed construction of cleanup remedies at 67.5 percent of final and deleted sites on the National Priorities List. The Agency has readied nearly 1.3 million acres of land for return to productive use, and more than 455,800 acres are ready for anticipated use. With passage of the American Recovery and Reinvestment Act (ARRA), the Superfund program has applied $600 million in ARRA funds to accelerate cleanups at 31 ongoing construction projects and to start new construction projects at 26 sites.
Looking Forward
EPA is proud of our progress, but as the program enters its fourth decade, we believe we have the opportunity to improve Superfund's efficiency and management, as well as that of EPA's other cleanup programs. To that end, EPA has begun implementation of an initiative to better use the Agency's land cleanup authorities to accelerate cleanups where possible, address a greater number of contaminated sites, and put these sites back into productive use while protecting human health and the environment. Through the Integrated Cleanup Initiative, EPA is bringing all of its resources to bear to clean up contaminated sites.
Summary : A group of scientists wrote a letter to the FDA and EPA urging the agencies to consider other factors besides toxicology when determining the safety of chemicals such as BPA, which is used in plastic goods and can leach into food and drink.
The government has long claimed that the levels of BPA used in products are not toxic and therefore safe, but growing research by endocrinologists and other specialists "has shown that low levels of BPA can cause changes in activity at the cellular level that cause health effects over time in laboratory animals."
Amid an Environmental Protection Agency regulatory spree unprecedented in U.S. history, nothing cleared the benches last year like the so-called boiler rule. Some 62 Senators, 177 House Members and 21 Governors publicly objected, business staged a collective revolt, and the EPA itself was forced to retreat and junk the original rule. No matter how ruinous a regulation, this almost never happens.
The problem is that the new rule, which came out last week and is meant to reduce air pollutants like mercury from industrial boilers, is nearly as bad. The Atlantic is smaller than the Pacific, but they're both pretty ...
Monday, the House of Representatives passed an extension of the FY2011 Continuing Resolution (CR) until March 18, 2011. The bill incorporates the $4 billion in cuts recommended by the House Appropriations Committee. The measure now goes to the Senate, which is expected to take it up Wednesday or Thursday.
The $4 billion in additional funding cuts are expected to meet with little resistance in the Senate. These cuts target programs and projects that the president terminated or for which he did not request funding in his FY2012 budget. However, Senate Democrats, along with most observers, think that two more weeks is not enough time to finalize FY2011 appropriations. And , they are more worried that another short-term extension after March 18 could carry even more cuts. Some House Republicans have indicated that they would support a series of short-term CR extensions each of which would include additional cuts. As a result, Senate Democrat leaders (with support from the White House) have considered proposing an alternative that extends the current CR until April 8. However, this idea appears to be losing traction as House Republican leaders have signaled that they would only agree to a two-week extension.
Therefore, with the March 4 deadline fast approaching, the House resisting an alternative to their two-week extension, and few in Congress wanting to cause a government shut down, the Senate will most likely agree to the House bill. And, the CR saga will continue.
WASHINGTON, March 1, 2011 – The Defense Department is losing billions of dollars by Congress' failure to pass the department's fiscal 2011 budget, putting readiness, modernization and efficiency initiatives at risk, the deputy defense secretary said today.
The department has gone five months into the fiscal year under a continuing budget resolution that holds appropriations at their previous levels, William J. Lynn III told members of a Senate appropriations subcommittee.
“In a time of war, with soldiers, sailors, airmen and Marines on the front lines, this is no time to do a continuing resolution,” Lynn said. He quoted Defense Secretary Robert M. Gates in saying that failure to pass the current year's budget is “a crisis at our doorstep” that “will damage national security.”
To continue to work under the continuing budget resolution would result in “the worst of all possible reductions” to the defense budget that would “hollow out” the military during wartime, Gates said at a congressional hearing in January.
The department requested $549 billion for the fiscal 2011 budget, Lynn said, and requiring it to support operations under a continuing resolution until Sept. 30, when the budget year ends, will cause it to lose about $23 billion.
“It's detrimental to readiness, to modernization, and to efficient business practices,” he said.
The services have had to cut flying hours, defer equipment maintenance and stop acquisitions programs, such as those for a Navy destroyer, a new Virginia-class submarine and Army Humvee vehicles, Lynn said.
“The services have delayed 75 projects that affect our capabilities and quality of life for our service men and women,” he said.
“If we have to continue under the CR, problems like these would snowball,” Lynn told the subcommittee. “We would be forced to play a shell game; we would have to rob Peter to pay Paul.”
Lynn was joined by the department's comptroller, Robert F. Hale, who confirmed that department officials have to take money from accounts that pay things like training, maintenance and acquisitions to fund “must-pay” bills such as salaries and health care coverage.
Operating under a continuing resolution makes the department less efficient -- contrary to Gates' efficiencies initiative that has found more than $150 billion in savings since it was announced in August, Lynn and Hale said.
The senior defense officials said programs and projects that are delayed or postponed end up costing more, and often with lower workmanship, because they tend to get rushed.
Lynn also said he's concerned about the unknowns in the current budget environment.
“Since we've never had a year-long continuing resolution for defense, and certainly never operated under one during a time of war, it's the effects we haven't thought of that I'm more worried about,” he said.
Asked about a possible governmentwide shutdown by Congress, Lynn said the department would have to furlough up to half of its civilian workers.
“It certainly would cause enormous destruction and enormous distraction, and it's something I think the country would want to avoid at a time of war,” he said.
Lynn also spoke to the department's fiscal 2012 budget request of $671 billion, which was submitted to Congress last month. The request, he said, is “reasonable in meeting our national security needs and prudent in meeting the president's deficit reduction plans.”
Still, Lynn said it seemed premature to talk about next year's budget before Congress has approved that for the current year.
“In our view, this is not a workable situation,” he said of the continuing resolution.
The Environmental Protection Agency is likely the most out-of-control, economically destructive and ideologically driven agency in the history of the United States.
Apparently unaware of the fact that the air in the U.S. is cleaner now than at any time in the last hundred years, or that the pollutants produced by burning fossil fuels have not been proved to contribute to global climate change, the agency is ready to unleash on the country two new rules that will create great pain for Americans, Americans that pay their own bills, that is.
A study by National Economic Research Associates (NERA) shows that these two rules will increase the cost of operation of electric utilities by $184 billion by 2030. Everyone who thinks electricity costs are too high already should think about that for a few minutes; electricity consumers will bear those costs, estimated at between 11 percent and 23 percent over the next few years.
Nicolas Lori of the Heritage Foundation predicts the new rules will force “utilities to file for significant rate hikes in years to come because of the upgrades they will have to make, or the complete shutdown of older plants.” We have just recently learned that American Electric Power has chosen to close or downsize 11 plants in seven states to avoid the costs that its customers would have to pay.
Worse than higher electricity rates, the NERA study predicts that these rules will kill 1.4 million jobs over the same period. Job loss caused by government action is always a bad thing, but is especially idiotic during a recovery so anemic that it doesn't look like a recovery at all.
However, as destructive as these two rules are, they're just the start. They are among 30 major regulations and more than 170 major policy rules the EPA has on tap that will increase utility costs, according to a study by the American Legislative Exchange Council.
A more recent development makes it clear that the EPA goes merrily along with little if any regard for the wreckage that follows many of its actions, like private sector jobs and economic productivity. Testifying before a subcommittee of the House Environment and Energy Committee, Assistant EPA Administrator Mathy Stanislaus revealed that the EPA really doesn't much care about whether the agency's actions will kill jobs, and sometimes or perhaps frequently doesn't even consider employment factors when devising regulatory schemes.
On the topic of recycling fly ash and other by-products of burning fossil fuels, when asked the likely results of implementing new rules on this activity, Mr. Stanislaus replied, “We have not directly taken a look at jobs in the proposal.”
“So what,” you might say. “How many jobs could be affected by more closely regulating how this waste is handled?” which, come to think of it, sounds a lot like how the EPA seems to view the situation.
As it turns out, however, the capitalist spirit is alive and well where disposing of fly ash is concerned: This waste material, rather than being dumped somewhere, is used productively to strengthen concrete and increase its useful life, to make wallboard stronger, and to make better roofing shingles, all of which involves people working.
The subcommittee is investigating whether or not the EPA is following the requirements of Executive Order 13563 signed by President Barack Obama last January requiring federal agencies to take job creation into account when they issue new rules. Specifically, the subcommittee questions whether the effect on jobs was properly considered in the April 2010 statement contained in the appendix of an analysis of proposed regulation under the Resources and Recovery Act dealing with fly ash, which said, “The [analysis] does not include either qualitative or quantitative estimation of the potential effects of the proposed rule on economic productivity, economic growth, employment, job creation or international economic competitiveness.”
Put another way, the EPA statement said, “The effect of this rule on jobs, productivity, or the economy is irrelevant, so long as fly ash is prohibited from being used productively.”
The Daily Caller news site recounted some of Mr. Stanislaus' testimony and answers to questions posed by Colorado Republican Rep. Cory Gardner. “Gardner's line of questioning had Stanislaus visibly dumbfounded, and he repeatedly told the congressman he would have to get back to him with the answers to his questions,” the Caller reported.
“I'd like to see a list of all of the rules that you have proposed that haven't taken into account jobs,” Rep. Gardner said. “We need to know if the EPA considers jobs in their analysis and whether you have, and whether EPA's position is to consider jobs when it does an economic analysis.”
The EPA loves to tell everyone else how to live, even when doing so causes pain, but it ignores orders that get in the way of its ideological agenda.
Such arrogant behavior by a government agency didn't originate with the Obama administration, but it has reached undreamed of heights since Barack Obama took office.
One cannot help wondering if anyone will be held to account for this failure to follow the president's direct order.
James H. “Smokey” Shott, a resident of Bluefield, Va., is a Daily Telegraph columnist.
So you and I are sitting here because somebody, somewhere, made an investment in our futures. We've got the same obligation for the folks who are coming up behind us. We've got to make sure that we're looking out for them, just like the previous generations looked out for us. And that's what I think will help us get through what are some difficult times and make sure that America's future is even brighter than the past.
MR. DORSEY: And on that note, thank you very much, Mr. President. (Applause.)
THE PRESIDENT: Thank you. I appreciate it. (Applause.) All right, thank you, guys. Thanks. (Applause.)
END 3:12 P.M. EDT
H.R. 394
Federal Courts Jurisdiction and Venue Clarification Act of 2011
Sponsor
Rep. Smith, Lamar (Judiciary Committee)
Date
March 01, 2011
112th Congress, 1st Session
FLOOR SITUATION
On Monday, February 28, 2011, the House is scheduled to consider H.R. 394, under suspension of the rules, requiring a two-thirds majority vote for passage. The bill was introduced on January 24, 2011, by Rep. Lamar Smith (R-TX) and referred to the Committee on the Judiciary. The Committee held a markup of H.R. 394 on January 26, 2011, and ordered the bill to be reported by voice vote.
EXECUTIVE SUMMARY
H.R. 394 would make several changes to judicial procedures, including the determination of original jurisdiction and court venue for certain types of cases. The bill would specify the court of original jurisdiction for certain cases involving resident aliens and corporations. Lastly, H.R. 394 would change how the venues for federal court cases are determined, particularly when the cases involve multiple districts.
BACKGROUND
According to the majority staff on the House Committee on the Judiciary, the House approved a similar bill (H.R. 4113) by voice vote under suspension of the rules on September 28, 2010.
The Senate Judiciary Committee insisted on the following minor amendments.
Maintaining the status quo treatment of derivative jurisdiction. H.R. 4113 as passed by the House made technical changes to §1441(f) to clarify that the derivative jurisdiction doctrine has no application to other sections within title 28. Prior to 1986, the derivative jurisdiction doctrine meant that if a state court lacked jurisdiction over an exclusively federal matter, removal to federal court under §1441(f) was nonetheless barred because the US district court's jurisdiction was not “derivative” of the jurisdiction that attached in state court. Justice Department attorneys said that although it is infrequently used, the doctrine of derivative jurisdiction is indeed sometimes invoked by them when suits involving federal officers and agencies are removed to federal court. They gave as a particular example the situation when a defendant seeking to escape a state court forum brings a third-party action against a federal employee. If the federal employee was acting within the scope of the employee's employment, the U.S. can remove the case to federal court under 28 USC §1442 & §2679. The federal court then applies the derivative jurisdiction doctrine and dismisses the third-party claim against the federal employee, remanding the underlying action to state court. DOJ says that in such instances the third-party claim against a federal employee is often brought merely to obtain a federal forum, thereby frustrating the plaintiff's choice of forum.
A clarification that a district court, and not state court, can make findings regarding the appropriateness of certain removals. This is a non-substantive change.
Substitution of the generic word “entity” for “party” in one instance, consistent with the context of its usage.
Deletion of an extra comma in one provision.
H.R. 394 includes the base text as approved by the House in the 111 th Congress along with the Senate changes.
H.R. 394 would attempt to bring clarity to the operation of jurisdictional statutes and facilitate the identification of the appropriate state or federal court where actions should be brought. Many Judges believe the current rules force them to waste time determining jurisdictional issues at the expense of adjudicating the underlying litigation. The contents are based on recommendations developed and approved by the United States Judicial Conference.
COST
According to CBO, H.R. 394 would have no significant budgetary impact.
CONTACT: Jalil Isa (News Media Only) isa.jalil@epa.gov
202-564-3226
202-564-4355
FOR IMMEDIATE RELEASE March 3, 2011
EPA Accepting Applications for Environmental Education Grant Funding
WASHINGTON – The U.S. Environmental Protection Agency (EPA) is accepting grant applications for $1.9 million in funding for environmental education projects and programs. The purpose of the grants is to promote environmental stewardship and help develop knowledgeable and responsible students, teachers and citizens. EPA expects to award at least 20 grants nationwide ranging from a minimum of $15,000 to a maximum of $100,000 and will accept applications until May 2, 2011.
The grants provide financial support for innovative projects that design, demonstrate, and/or disseminate environmental education practices, methods, or techniques. Projects should involve environmental education activities that go beyond disseminating information.
EPA will be hosting two conference calls for potential applicants interested in additional information about the application process. The conference calls will take place on March 21, 2011 at 11 a.m. Eastern Daylight Time (EDT) and April 6 at 2 p.m. (EDT). To participate in the conference calls, dial: 1-866-379-5082, and use conference ID number: 48699133 for the call on March 21. Use conference ID number: 48696117 for the call on April 6.
The Environmental Education Grant Program provides funding to local education agencies, state education or environmental agencies, colleges or universities, not-for-profit organizations, or noncommercial educational broadcasting entities. Tribal education agencies, which are controlled by an Indian tribe, band or nation, may also apply, including a school or community college.
Since the program began, EPA has provided more than $50 million in funding to more than 3,000 agencies and organizations.
For Immediate Release: March 3, 2011
Contact: Dean Higuchi, 808-541-2711, higuchi.dean@epa.gov
NEWS BRIEF
U.S. EPA and Hawai'i Department of Health present award to the County of Kauai
County receives “Pisces Award” for wastewater system work
HONOLULU – The U.S. Environmental Protection Agency and the Hawai'i Department of Health today honored the County of Kauai with the 2011 Hawai'i Clean Water State Revolving Fund Project of the Year Award.
The project, upgrading and expanding the Waimea Wastewater Treatment Plant with a photovoltaic system and a water reuse component, is financed by a total of $15.6 million in federal funding, a $8.2 million loan from the Hawai'i Clean Water State Revolving Fund administered by the Hawai'i Department of Health, and $7.4 million in American Reinvestment and Recovery Act (ARRA) funding.
The county's effort is a green project promoting water and energy efficiency that will increase the plant's capacity from 300,000 to 700,000 gallons per day. The wastewater will be treated to standards that will encourage its reuse on parks, school fields, and a future golf course in the Waimea area. The county will install a photovoltaic system supplying about 70 percent of the power needed to run the expanded plant. This will offset the additional power demands, resulting in increased capacity while providing better reuse water using renewable energy.
The “Pisces Award” recognizes the most innovative and effective clean water loan projects. States could nominate one project for the award and the project needs to be in compliance with the Clean Water Act, demonstrates financial integrity by showing no financial problems with the project, and has high health benefits.
Chemical assessments are a vital way for the Environmental Protection Agency to warn the public about potential health hazards from many substances, but the agency is falling way behind on its work.
A wide-ranging new report from the Government Accountability Office found that the EPA has gotten so backed up that certain chemicals have gone for more than a decade without an evaluation from the agency. As the Center for Public Integrity notes , an assessment of dioxin has been pending for 19 years, while a formaldehyde evaluation has lingered for 13.
In other areas, too, the GAO questions whether the EPA can keep up with the nation's needs. The report says the Superfund hazardous waste cleanup effort, which was launched three decades ago, can't come up with reliable estimates of how much money it will need to finish its work because the agency is hampered by poor and incomplete data.
Water quality is another major concern. The report cited the deterioration of the Great Lakes and the Chesapeake Bay, the nation's premier watersheds, along with the problem of aging water treatment plans and other decaying infrastructure. The GAO estimates that it could cost up to $1.2 trillion, through 2029, to adequately upgrade the nation's water infrastructure.
On top of these longstanding issues, the EPA is taking on an emerging role — though one that increasingly is coming under fire in Congress — in combating climate change. Yet, the GAO report notes, the EPA's budget has only kept pace with inflation since 2000.
The report's recommendations, however, are standard fare: enhanced oversight, improved information for regulatory decision-making and better coordination with other agencies.
House Republicans can claim "bipartisanship" in their bid to handcuff the EPA's climate change rules.
Rep. Collin Peterson (D-Minn.) told POLITICO on Wednesday that he will be co-sponsoring the legislation from House Energy and Commerce Committee Chairman Fred Upton (R-Mich.) and Rep. Ed Whitfield (R-Ky.) that puts a freeze on EPA's regulatory agenda for major industrial polluters like power plants and petroleum refiners.
Improvements in Managing Research and Development Could Help Reduce Inefficiencies and Costs for Homeland Security
FEMA Needs to Improve Its Oversight of Grants and Establish a Framework for Assessing Capabilities to Identify Gaps and Prioritize Investments
Total Compensation Approach Is Needed to Manage Significant Growth in Military Personnel Costs.
Agencies Could Realize Cost Savings by Disposal of Unneeded Federal Real Property
Improved Cost Analyses Used for Making Federal Facility Ownership and Leasing Decisions Could Lead to Cost Savings Governmentwide
WASHINGTON (MarketWatch) - The U.S. government's $700 billion bank bailout program will rank as one of the most effective crisis response programs ever implemented and the government's broader response efforts are remarkably low when compared to past systemic crises, a top Treasury official said Friday. "The cost of TARP is likely to be no greater than the amount spent on the program's housing initiatives-expenditures that were necessary to prevent even greater losses and hardships to American families and local communities and that were never intended to be returned," said Acting Assistant Treasury Secretary for the Office of Financial Stability Timothy Massad in testimony prepared for a watchdog group responsible for overseeing the Troubled Asset Relief Program. "The remainder of the programs under TARP-the investments in banks, AIG, credit markets, and the auto industry-likely will result in very little or no cost."
On June 17, 2009, the counsel for the United States sent a letter to Plaintiffs
Arman and Hutchens in their capacities as IMMI's sole stockholder, President,
Chairman, and Chief Executive Offcer (in Mr. Arman's case), and IMMI's Tenant in-Chief,
Warden of the Forest, and Warden of the Stannaries (in Mr. Hutchens' case). That letter notified
Plaintiffs Arman and Hutchens that IMMI had not complied with RCFC II(a) and 83.1 (a)(3) in
filing the Second Amended Complaint, and that the United States would move to strike the
Second Amended Complaint unless it received notice that IMMI would be either
(l) withdrawing as a plaintiff in this action, or (2) represented by properly admitted counseL.
Rather than respond directly to the undersigned counsel for the United States, on June 24, the
undersigned received from Plaintiffs Aran and Hutchens a copy of a petition submitted to this
Court asking it to permit IMMI to proceed without properly admitted counsel and to be instead
represented by Plaintiffs Hutchens and Arman. Plaintiffs' petition, a copy of which is attached
hereto as Exhibit A, does not appear to have been entered on the docket, perhaps because of this
Cour's May 27 Order prohibiting further fiings by Plaintiffs until the United States has
responded to the Second Amended Complaint. Even if it had been filed, however, Plaintiffs'
petition should be denied because, as the Federal Circuit has explained, the rule that corporations
must be represented by counsel in the Cour of Federal Claims (former RCFC 83.1 (c)(8) and
Fed. Cl. R. 81(d)(8)) "does not contemplate exceptions." Talasila, Inc. v. United States, 240
F.3d 1064, 1067 (Fed. Cir. 2001); see also Curtis v. United States, 63 Fed. Cl. 172, 179-80
(2004).
Plaintiffs' Second Amended Complaint Also Should Be Dismissed For Failure To
State A Claim Because It Alleges Unlawful Conduct By The United States.
Alternatively, Plaintiffs' Second Amended Complaint should be dismissed for failure to
state a claim upon which relief can be granted. "A motion to dismiss for failure to state a claim
is brought pursuant to RCFC 12(b)(6)." Abbey v. United States, 82 Fed. Cl. 722, 725 (2008).
As the United States Court of Appeals for the Federal Circuit has explained, "(t)he purpose of
(RCFC 12(b)(6)) is to allow the court to eliminate actions that are fatally flawed in their legal
premises and destined to faiL" Advanced Cardiovascular Sys., Inc. v. Scimed Life Sys., Inc.,
988 F.2d 1157, 1160 (Fed. Cir. 1993).
His well established that "in a takings case (the court) assume(s) that the underlying
governental action was lawfL" Lion Raisins Inc. v. United States, 416 F.3cH356, 1370 (Fed.
Cir. 2005) (internal quotation marks omitted). "(T)o the extent that (a) plaintiff claims it is
entitled to prevail because the agency acted in violation of statute or regulation," Federal Circuit
precedent does "not give the plaintiff a right to litigate that issue in a takings action." Id. at
1369; see also NW Louisiana Fish & Game Preserve Comm'n v. United States, 79 Fed. Cl. 400,
406 (2007). Indeed, during the May 26 telephonic hearng, this Court explained at length the
difference between a claim for just compensation under the Fifth Amendment, which may be
brought in this Cour, and a challenge to the legality of governental action, which must be
brought in the appropriate district court.
Notwithstanding this Court's explanation and the well-established case law, Plaintiffs
continue to contest the legality of the EPA's actions at the Iron Mountain Mines Superfund site
Ïn this action. In their Second Amended Complaint, "Iron Mountain Mines, Inc. et al. dispute the
United States(') lawfl authority to conduct the() CERCLA remedial actions (removal)" about
which Plaintiffs complain, "and demand the return of the property and the restoration of rights,
privileges, and immunities of patent title to the possession and enjoyment of T.W. Arman and
John F. Hutchens." Dkt. 14 ~ 26. Plaintiffs goon to allege that they are entitled to just
compensation "(b )ecause the United States has no actual justification for its actions." Id.
Because Plaintiffs' Second Amended Complaint challenges the lawflness of the EPA's actions
at the Iron Mountain Mines Superfund site, it should be dismissed under RCFC 12(b)( 6) for
failure to state a claim upon which relief can be granted.
V. Conclusion
For the foregoing reasons, Defendant respectfully requests that this Court strike
Plaintiff s Second Amended Complaint from the docket and direct Plaintiffs to fie a new Second
Amended Complaint that either omits IMMI or includes the signature of an attorney appearing
on behalf ofIMMI. In the alternative, should the Court determine that Plaintiffs' Second
Amended Complaint was properly fied, Defendant respectfully requests that the Court dismiss
the Second Amended Complaint with prejudice.
In American International Specialty Lines Insurance Co. v. 7-Eleven , [1] the Northern District of Texas held that a showing of imminent and substantial endangerment to human health or the environment at the time litigation is commenced is sufficient to sustain a claim under the Resource Conservation and Recovery Act (“RCRA”). [2] 42 U.S.C. § 6972(a)(1)(B). Under the ruling, a defendant may not rely on subsequent clean up efforts as a means of avoiding suit.
American International arose out of a dispute over environmental contamination at two former gas stations. American International Specialty Lines Insurance Company (“AISLIC”) insured the owners of a former Diamond Shamrock gas station located at 500 Boyd Road in Azle, Texas (the “500 Property”). The defendant, 7-Eleven, Inc. (“7-Eleven”), operated a gas station on adjacent property.
In 2004, AISLIC began remediation of the 500 Property under the direction of the Texas Commission on Environmental Quality (“TCEQ”). AISLIC's investigation revealed that some of the contamination at the 500 Property had migrated through the groundwater from 7-Eleven's parcel. [3] Armed with this information, AISLIC brought a RCRA claim against 7-Eleven, seeking injunctive relief to force 7-Eleven to remediate the contamination, as well as recovery of its attorneys' fees and costs. AISLIC also sought recovery of its response costs under the Texas Sold Waste Disposal Act (“TSWDA”). [4]
More than a year later, AISLIC moved for summary judgment on its RCRA claim. In response, 7-Eleven filed a cross-motion for summary judgment, disputing that an imminent and substantial endangerment continued to exist at the site. 7-Eleven pointed to a report from AISLIC's own consultant, Titan Engineering, which suggested that no imminent and substantial endangerment currently existed. The Titan report stated that any remaining contamination at the site would “not affect groundwater quality, would not likely pose a risk to human health, and would have little future impact on the immediate environment.” [5] Based on the report, TCEQ approved the cleanup process advocated by Titan in the report. Pointing to TCEQ's decision, 7-Eleven argued that that there was no imminent and substantial threat to human health or the environment at the 500 Property and that AISLIC's RCRA claim must therefore be dismissed based on the lack of a current imminent and substantial threat.
AISLIC responded that the site conditions which existed after it filed its lawsuit were irrelevant; maintaining that the court should look to the environmental conditions at the time the suit was filed to determine whether an imminent and substantial endangerment existed. AISLIC also argued that 7-Eleven should not benefit from remediation actions undertaken by AISLIC and that any improved site conditions at the 500 Property were due to its cleanup efforts, not those of 7-Eleven. AISLIC pointed to groundwater sampling showing benzene and MTBE [6] concentrations above state cleanup levels near the time it filed suit as support for its contention that an imminent and substantial endangerment existed at the time suit was filed. [7]
Analysis
RCRA's citizen-suit provision provides a mechanism for private enforcement and recovery of attorneys' fees to a prevailing party under the statute. [8] To prevail under § 6972(a)(1)(B), the plaintiff must show three things: (1) that the defendant is a “person” as defined by the statute; (2) that the defendant has contributed to or is contributing to the handling, storage, treatment, transportation, or disposal of any solid or hazardous waste; and (3) that the waste poses an imminent and substantial endangerment to human health or the environment. [9]
In American International , the court held that AISLIC had satisfied the first and second elements, but that there was a genuine issue of material fact with respect to the existence of an imminent and substantial threat. 7-Eleven had admitted it owned and operated underground petroleum-storage tanks at the 7-Eleven Property [10] and 7-Eleven's releases of petroleum products contributed to the hazardous wastes found at both the 7-Eleven and 500 Properties. [11] As a result, the only remaining issue was whether an ongoing “imminent and substantial” threat was necessary in order for AISLIC to maintain its action, or whether it could rely on the existence of such a threat at the time it initiated the litigation.
In reviewing this question, the court noted that § 6972(a)(1)(B) provides for injunctive relief based on either past or present conduct. The court rejected 7-Eleven's argument regarding the lack of a continued presence of waste at the site, explaining that it considered the relevant inquiry to be “whether the condition at the 500 Property posed a substantial danger on May 12, 2008, when this suit was filed.” [12] The court disagreed with 7-Eleven's attempt to point to only the subsequent levels of contamination, stating, “Defendant misses the mark by citing almost exclusively to contamination levels in early 2009.” [13]
The court pointed out that contamination at the 500 Property exceeded the Texas state cleanup levels shortly before the suit was filed and that that petroleum soil contamination at 7-Eleven's Property might continue to impact the 500 Property by means of groundwater migration. From this evidence, the court concluded that “it appears that there were elevated levels of potentially hazardous contaminants at the 500 Property at the time of suit.” [14]
Notwithstanding these conclusions and its rejection of 7-Eleven's position, the court declined to grant summary judgment for AISLIC. The court held that issues of material fact precluded entry of summary judgment regarding whether contamination at the 500 Property actually constituted an imminent and substantial threat to human health and the environment at the time AISLIC filed suit. In reaching its decision, the court relied on precedent holding that contamination in excess of state limits was sufficient, by itself, to create a genuine issue of material fact as to the imminent threat element. [15]
Conclusion
Under American International , a defendant faced with a RCRA imminent and substantial endangerment citizen suit may not avoid liability by relying on environmental clean up undertaken after a plaintiff files the suit. The ruling may make it easier for plaintiffs to demonstrate an imminent and substantial endangerment at sites where clean up is ongoing.
For more information regarding American International , please contact Russell Prugh or any member of Marten Law's Waste Cleanup practice.
CERCLA Case Law Developments
District Court Finds Non-Settling PRP Can Intervene in CERCLA Consent Decree
On January 15, 2010, the U.S. District Court for the Northern District of West Virginia held that a PRP's right to contribution under CERCLA is a significantly protectable interest permitting a non-settling PRP to intervene as of right to challenge a consent decree between the federal government and a settling PRP. United States v. Exxon Mobil Corp ., No. 08-124 (N.D. W. Va. Jan. 15, 2010). In Exxon , U.S. EPA identified Vertellus Specialties, Inc. (“Vertellus”) and CBS Corporation (“CBS”) as PRPs for contamination at Big John's Salvage Site (“BJS Site”), a former industrial site in Marion County, West Virginia, the remediation of which could cost more than $24 million. Exxon, previously identified by EPA as a PRP due to its predecessor's coke production activities nearby, had agreed to a consent decree under which it would pay the government $3 million in exchange for relief from liability for pollution at the BJS site and protection from contribution claims by other PRPs; Vertellus and CBS asserted that the decree unreasonably underestimates Exxon's liability and sought intervention under Fed. R. Civ. P. 24(a)(2) and CERCLA § 113(i). Overruling EPA's objections, the court granted Vertellus's and CBS's motions to intervene “for the limited purpose of challenging the proposed consent decree.” Exxon , No. 08-124, slip op. at 20.
Finding the test for motions to intervene to be the same under CERCLA and the Federal Rules of Civil Procedure, the court began by examining the central issue of whether the potential contribution rights of Vertellus and CBS qualified as “significantly protectable interests in the outcome of the [consent decree action].” Id . at 2. Noting that the 4th Circuit had not previously decided this question, the district court reviewed the growing number of divergent rulings on the issue and, though acknowledging that some other district courts and the 3rd Circuit had found the contribution right to be too speculative and contingent, ultimately agreed with the 10th Circuit's decision in United States v. Albert Inv. Co .., 585 F.3d 1386 (10th Cir. 2009), that the CERCLA contribution right is a legally sufficient interest to justify intervention as of right in a consent decree action. Referencing the 4th Circuit's “policy of ‘liberal' intervention,” the court concluded that “the right of contribution held by CBS and Vertellus, although not certain, is a valuable interest that each would lose should the Court enter the proposed consent decree without providing them an opportunity to be heard.” Id . at 12-13.
Finally, the court found that the other requirements for intervention as of right had been met. Although EPA argued that CBS's request was untimely, the court concluded that neither the government nor Exxon would be prejudiced if CBS were allowed to intervene, reasoning that allowing CBS to intervene would not create significant additional delay; the court has an interest in determining the fairness and reasonableness of a proposed decree and the arguments of CBS and Vertellus would assist in that determination; and the government intends to proceed with the remediation even if there is a delay in the expected flow of funds from Exxon pursuant to the consent decree.
District Court Allows PRP to Amend Claim 2 Years after Atlantic Research
On January 20, 2010, the United States District Court for the Southern District of Illinois granted a CERCLA PRP's motion for leave to file an amended pleading seeking cost recovery under CERCLA § 107(a), in light of the Supreme Court's ruling in United States v. Atl. Research , 551 U.S. 128 (2007). United States v. Pharmacia Corp ., No. 99-63, 2010 U.S. Dist. LEXIS 4343 (S.D. Il. Jan. 20, 2010). In Pharmacia , plaintiff Pharmacia Corporation argued that the holding in Atlantic Research was a “momentous change in law” enabling it to bring a CERCLA § 107(a) claim for direct and future costs, which it allegedly incurred pursuant to two administrative orders, against Rogers Cartage Company (“Rogers”), a non-settling PRP. Id. at *21. In previous rulings, Pharmacia's § 113(f) contribution claim had been denied. The district court observed that, while Atlantic Research ostensibly allows PRPs such as Pharmacia to bring claims under § 107 for costs directly incurred in remediating a site, the Supreme Court did not decide whether costs not “voluntarily” incurred, such as those incurred pursuant to a consent decree, are recoverable under § 107(a). Nevertheless, the district court concluded that Pharmacia's position was not “frivolous or implausible.” Id . at *22. The district court also rejected Rogers' argument that Pharmacia had unduly delayed by filing an amended claim 2-1/2 years after the Supreme Court's decision. The court found that knowledge of the potential impact of the decision could not be “immediately attributable” to Pharmacia, and Rogers was not unduly prejudiced, particularly given that, even without any amended pleadings, the case had been proceeding for 11 years.
CERCLA/RCRA Regulatory Developments
EPA Requests Comments on Draft Recommended Interim PRGs for Dioxin in Soil
On January 7, 2010, U.S. EPA initiated a 50-day public comment period, 75 Fed. Reg. 984, on recommended interim preliminary remediation goals (“PRGs”) for dioxin in soil at CERCLA and RCRA sites that it established in draft guidance released on December 30, 2009: “Guidance on Recommended Interim Preliminary Remediation Goals for Dioxin in Soil at Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) and Resource Conservation and Recovery Act (RCRA) Sites” (“Draft Guidance”). EPA intends to finalize these recommended interim PRGs in June of 2010, after it has received and evaluated public comments. The recommended interim PRGs will apply to CERCLA and RCRA sites until EPA issues updated recommended PRGs based on its final dioxin reassessment, which EPA intends to complete by the end of 2010. Once the PRGs are updated based on the final dioxin reassessment, EPA will “re-evaluate cleanup decisions at [CERCLA] and [RCRA] that were based on the 2010 recommended PRGs to ensure that cleanups remain protective for human health.” Draft Guidance at 5. In the meantime, the Draft Guidance will supersede the PRG guidance last issued in 1998.
PRGs are chemical- and media- specific concentration goals, set at levels believed to be protective of human health, which are used as a target in selecting and executing remedial activities at contaminated sites. The currently recommended PRGs for soil at CERCLA and RCRA sites, per the 1998 guidance, are 1,000 ppt (parts per trillion) dioxin toxicity equivalents (“TEQs”) in residential soil and a range of 5,000 - 20,000 ppt for commercial/industrial soil. The recommended interim PRGs proposed in December 2009 are more conservative: 72 ppt for residential soil and 950 - 2,000 ppt for commercial/industrial soil. EPA considers these levels adequately protective against non-cancer effects from “human exposure by ingestion and dermal contact with surface soils.” Draft Guidance at 3. While EPA believes these levels are also protective against cancer effects at the 1 in 100,000 risk level, EPA also is seeking comment on PRGs protective against cancer effects at the 1 in a million risk level, at 3.7 ppt for residential soil and 37 - 17 ppt for commercial/industrial soil. EPA notes that PRGs this low would be equivalent to or below background levels in rural soil and recognizes that it is not its policy to require clean-up below background levels. 75 Fed. Reg. at 986.
RCRA Case Law Developments
RCRA Imminent and Substantial Endangerment Determination Based on Conditions at Time of Filing
The United States District Court for the Northern District of Texas held January 19 that, for purposes of RCRA's § 7002(a)(1)(B) citizen suit provision, a determination of whether a contaminant may present an imminent and substantial danger must be based on conditions at the time of filing. Am. Int'l Specialty Lines Ins. Co. v. 7-Eleven, Inc ., No. 08-807, 2010 U.S. Dist. LEXIS 4088 (N.D. Tex. Jan. 19, 2010). In American International , plaintiff American International Specialty Lines Insurance Company (“AISLIC”) alleged that leakage from underground storage tanks under a gas station operated by defendant 7-Eleven had harmed its insureds' adjacent property (“the Property”) and sought, inter alia , an injunction under RCRA § 7002(a)(1)(B) compelling 7-Eleven to investigate and remediate the Property and reimbursement of AISLIC's investigation and remediation costs under the Texas Solid Waste Disposal Act (“SWDA”). AISLIC sought summary judgment on its RCRA and SWDA claims, and 7-Eleven sought summary judgment against AISLIC on the RCRA claim. The court denied 7-Eleven's motion, but granted in part and denied in part AISLIC's motion, finding genuine issues of material fact for trial on AISLIC's claims. Id . at *21.
With regard to the RCRA claim, the court began by noting that the cross-motions for summary judgment mainly disputed whether the contamination at the Property presented an imminent and substantial endangerment to human health or the environment, a critical element in bringing a citizen suit under RCRA. In addressing this issue, the court stated that the appropriate inquiry was “whether conditions at [the Property] at the time of suit, May 12, 2008,” posed an imminent danger. The timing issue is crucial here because in October 2008, there was evidence of contamination at levels above Texas Protective Contamination Levels. Then in early January 2009, AISLIC's consultant informed the state that the site would not pose a risk to human health or the environment and sought and obtained Texas approval for a limited remediation approach. Id . at *10. 7-Eleven argued that AISLIC's report to Texas regulators demonstrated that the site did not pose an imminent danger. Finding that the evidence indicated elevated levels of potentially hazardous contaminants at the Property when the suit was filed, and that 7-Eleven's motion cited almost exclusively to contaminant levels in 2009, the court denied 7-Eleven's motion and found that the imminent danger issue was a matter for trial.
The court granted AISLIC's motion for partial summary judgment as to the other two elements of § 7002(a)(1)(B), finding that 7-Eleven was an “owner or operator of a waste treatment, storage, or disposal facility”; and that 7-Eleven “contributed to the handling, storage, treatment, transportation, or disposal of solid or hazardous waste.” Id . at *12-13.
With regard to the SWDA cost recovery claim, the court rejected 7-Eleven's argument that AISLIC must prove that its response costs were caused by contamination migrating from the 7-Eleven site, rather than pre-existing on the Property, because there was evidence that at least some of the contamination came from 7-Eleven. The court also found a genuine issue of fact with regard to 7-Eleven's affirmative defense seeking an offset for higher or unnecessary costs caused by AISLIC's alleged failure to take effective and timely response measures upon learning of the contamination, and denied 7-Eleven's motion for summary judgment on that issue.
Toxic Tort Case Law Developments
Plaintiffs Must Show Defendant Targeted Specific Individuals For Emotional Distress Claim
On January 26, 2010, the United States District Court for the Northern District of California found that, since plaintiffs allegedly injured as a result of improper disposal of hazardous waste had not submitted evidence that the defendants intended to harm them in particular, plaintiffs' claim for intentional infliction of emotional distress could not proceed. Whitlock v. Pepsi Americas , No. 08-2742, 2010 U.S. Dist. LEXIS 5837 (N.D. Cal. Jan. 26, 2010). This case was one of several arising out of contamination at Pepsi Americas' Remco facility in Willits, California. In the present case, defendants Pepsi Americas, et al. (“Pepsi”) moved for summary judgment on plaintiffs' claim that defendants' discharge of hazardous substances despite knowing it would cause contamination that might affect people in the area amounted to intentional infliction of emotional distress (“IIED”). The court granted defendants' motion.
Pepsi argued that plaintiffs' claim failed because plaintiffs could not establish either that Pepsi's conduct was “directed at each individual plaintiff and intended to cause that plaintiff severe emotional distress” or “done with knowledge of each plaintiff's presence and exposure [to the hazardous substances at issue], and with a realization that each plaintiff was substantially certain to suffer severe emotional distress.” Whitlock , No. 08-2742, at *11. Plaintiffs responded by “[incorporating] by reference” an opposition brief filed in a previous – and unsuccessful – case, essentially arguing that they only need show that Pepsi intended more generally that “citizens of Willits” be harmed. Id . at *14.
The court rejected plaintiffs' argument, emphasizing that the case plaintiffs cited in support of their position “[did] not recognize an IIED claim based on general misconduct.” Id . The court noted that, while a plaintiff need not show that Pepsi knew the particular names of any individual plaintiffs affected by its conduct, “it is not enough to show that the defendant knew or should have known that there may be people in the area who might be affected by defendants' conduct.” Id . at *17. Therefore, finding that plaintiffs had not satisfied this element, the court granted Pepsi's motion for summary judgment.
SAN FRANCISCO --(BUSINESS WIRE)-- In a lawsuit involving the nation's largest Superfund site, a federal court in Green Bay, Wisconsin on Monday granted a motion for summary judgment filed by Menasha Corporation and other defendants. The ruling shifts responsibility for an estimated $700 million in cleanup costs for polychlorinated biphenyls (PCBs) contaminating Lower Fox River and Green Bay to NCR Corp. and related entities under the Comprehensive Environmental Response Compensation and Liability Act (CERCLA).
“We are pleased that the court holds responsible those who actually contaminated the river with PCBs, rather than forcing paper recyclers like Menasha Corporation to pay hundreds of millions of dollars in cleanup costs,” said Menasha's attorney, Philip Hunsucker of Hunsucker Goodstein & Nelson PC . “The court's decision is the next logical step toward a final resolution of the parties' liability for this massive Superfund site.”
NCR manufactured carbonless copy paper at the site using PCBs from the 1950s to the 1970s. The lawsuit, NCR Corp. v. George A. Whiting Paper Company , was filed in 2008. In December 2009 , the court held NCR could not recover from the defendants on its contribution claims. Monday's decision grants summary judgment on Menasha Corporation's claim for declaratory relief.
The court held that NCR and others, “…were responsible for creating the hazardous condition; they knew there was a risk of environmental damage; and they profited from the very condition (PCBs) that made their product hazardous, in contrast to the defendants, whose discharges of PCBs were almost entirely unknowing and whose profits in no way turned on the presence of PCBs in the broke they processed.”
As a result, the court ordered NCR and related entities to reimburse Menasha and other defendants for all environmental response costs the government requires them to pay to clean up PCB contamination in the Lower Fox River downstream of Little Lake Butte des Morts.
The court did not resolve whether NCR must reimburse the defendants for costs they incurred to remediate PCB contamination in Little Lake Butte des Morts. Also unaffected are claims brought by the United States and State of Wisconsin .
Philip Hunsucker and David Rabbino of Hunsucker Goodstein & Nelson PC represented Menasha Corporation in the lawsuit. The law firm, which has offices in California , Indiana and Washington DC , focuses on environmental litigation, insurance coverage/bad faith, and investor securities disputes.
Wildlife
An amendment to the Continuing Resolution offered by Rep. Lummis (R- WY), and passed 232- 197 , could make it harder to sue the government to enforce laws like the Endangered Species Act. The amendment would block the government from paying the legal fees of individuals or citizen groups that successfully sue it. Since the amendment does not change the underlying law, it basically would require the government to default on its obligation to pay the fees. In addition, a rider to the bill would overturn a court decision that protects endangered wolves in the northern Rockies.
Water
The Continuing Resolution includes a provision that would block the EPA from clarifying what U.S. waters are covered by the protections in the Clean Water Act in the wake of two court decisions. It also includes a rider to block implementation of Endangered Species Act protections in two critical California watersheds, the San Francisco Bay-Delta ecosystem and the San Joaquin River. Several other approved amendments also would further prevent the EPA from protecting waters from pollution:
Lands
The Continuing Resolution would eliminate 90 percent of the budget for the Land and Water Conservation Fund, which is financed with royalties from oil drilling on federal lands, and used by the federal government and the states to acquire lands for conservation and recreation. The bill also would reduce enrollment in the Wetland Reserve Program by 50,000 acres. This program allows farmers and landowners the opportunity to restore, maintain and protect wetlands on their property, leading to improved habitat for wildlife. The bill also contains a rider that would block the Department of Interior from taking steps to protect areas with wilderness characteristics.
On 2/19, the House or Representatives passed a Continuing Resolution ( H.R. 1 ) to keep the government funded through the remainder of this fiscal year, which ends 9/30. The bill would make deep cuts in environmental programs, targets climate-related programs and includes numerous legislative provisions to block the Environmental Protection Agency from issuing regulations to protect health and the environment. The bill passed 235-189, with all Democrats opposing the measure, and all Republicans supporting it except for three conservatives. President Obama has said he will veto the bill if it reaches his desk. The Senate plans to work this week on a bill without legislative provisions to keep the government open for another month to allow time for negotiations on a longer-term measure. (The current Continuing Resolution expires on 3/4.) Some of the key environmental provisions of the House-passed bill are described below.
Budget
The bill would cut the Environmental Protection Agency budget by about 30 percent from fiscal 2010 levels. Since the current fiscal year is almost half over, that represents a cut of almost 60 percent for spending in the remainder of fiscal 2011. The deepest cuts -- about $2 billion -- would be to the funds that provide money to states and localities to build and repair sewage and drinking water systems. The bill also would cut by 50 percent funding for the restoration of "America's Great Waters" such as the Chesapeake Bay, Puget Sound, Long Island Sound, the Great Lakes and Lake Champlain.
The bill also would cut by almost a quarter the budgets of a number of Department of Energy programs that promote clean energy. The bill would reduce funding for the DOE Energy Efficiency and Renewable Energy Program (- $775M), the DOE Office of Science (- $886M), the DOE Loan Guarantee Program (-$25B for all technologies except for "nuclear power facilities and front-end nuclear facilities") and the Energy Star program (-$10M). Additionally, the bill would rescind all funds provided to the programs by the American Recovery and Reinvestment Act of 2009.
The bill also would remove all funding for high-speed rail and Federal Highway Administration surface transportation priorities. The bill would cut Amtrak's budget by $151 million.
Air & Climate
The bill contains many riders -- legislative provisions that would not change the amount of spending in the bill, but carve out exceptions to current law. One rider would block the EPA from issuing or implementing any limits on emissions of carbon dioxide or other greenhouse gases from power plants or factories. An even broader provision, blocking the EPA from limiting emissions of greenhouse gases from any source for any reason -- including limiting damage to the ozone layer -- was offered by Rep. Poe (R-TX) , and approved by a vote of 249-177. Other air- and climate-related riders include:
An amendment offered by Rep. Carter (R-TX ), and passed 250-177 , to prevent the EPA from limiting toxic emissions from cement plants. The amendment would block the EPA's efforts to keep 16,000 pounds of mercury a year out of the air.
An amendment offered by Rep. Pompeo (R-KS), and passed 239-185 , to eliminate funding for the EPA's greenhouse gas registry. As a result, the EPA could not even collect basic data from large polluters on how much carbon dioxide and other heat-trapping pollutants are being released into the air.
An amendment offered by Rep. Noem (R-SD), and passed 255-168 , to block the EPA from updating limits on the emission of fine particles -- basically, soot -- which are a particular health danger because they penetrate deeply into the lungs.
An amendment offered by Rep. Young (R-AK), and passed 243-185 , to block the EPA from fully applying the Clean Air Act to oil drilling activities in Alaska. The EPA's Environmental Appeals Board recently ruled that a permit issued for Shell Oil to drill in the Arctic did not comply with the Clean Air Act. This amendment would prevent the EPA from taking any similar actions for the rest of the fiscal year.
An amendment offered by Rep. Luetkemeyer (R-MO) , and passed 244-179 , to eliminate U.S. funding for the Intergovernmental Panel on Climate Change, which has been a primary source for scientific information on climate change. The IPCC, which won a Nobel Prize for its work in 2007, was established with the support of the George H.W. Bush administration to provide authoritative international assessments of climate change.
An amendment offered by Rep. McKinley (R-WV) , and passed 240-182 , would block the EPA from preventing coal-burning utilities from dumping certain types of toxic slurry into rivers and streams.
An amendment offered by Rep. Goodlatte (R-VA) , and passed 230-195 , would block the EPA from implementing a plan to clean up the Chesapeake Bay.
An amendment offered by Rep. Griffith (R-VA) , and passed 235-185 , would block the EPA from reviewing mountaintop removal coal mining operations.
An amendment offered by Rep. Johnson (R-OH) , and passed 239-186 , would block the Department of Interior from issuing new regulations to limit stream damage from surface coal mining.
An amendment offered by Rep. Rooney (R-FL) , and passed 237-189 , would block a plan to clean up waterways in Florida.
EPA Submits for Public Comment the Next Round of Safe Drinking Water Act Contaminant Monitoring
WASHINGTON – As part of its commitment to implement sensible protections of drinking water for communities across the country, and as required by the Safe Drinking Water Act, the U.S. Environmental Protection Agency (EPA) is proposing 30 currently unregulated contaminants for monitoring in water systems, and submitting this proposal for public comment. The comment period will allow the public and other stakeholders to provide input on the selection of new contaminants for monitoring , and will help determine the best path forward as the EPA seeks to collect data that will inform future decisions about how best to protect drinking water.
“Ensuring clean and safe drinking water for all Americans is a top priority for EPA,” said Nancy Stoner, acting assistant administrator for EPA's Office of Water. “In keeping with the Safe Drinking Water Act, we are submitting for public comment and input our proposed next round of currently unregulated contaminants for monitoring. Learning more about the prevalence of these contaminants will allow EPA to better protect people's health.”
Under the authority of the Safe Drinking Water Act, EPA currently regulates more than 90 contaminants in drinking water. To keep drinking water standards up-to-date with emerging science, the Safe Drinking Water Act requires that EPA identify up to 30 unregulated contaminants for monitoring every five years. This current proposal is the third Unregulated Contaminant Monitoring Regulation and includes requirements to monitor for two viruses and 28 chemical contaminants that could be present in drinking water and do not currently have health-based standards.
EPA is requesting public comment on the proposed list of 30 contaminants until May 2, 2011. Following the public comment period, EPA will consider this important input before the list is scheduled to be finalized in 2012, with sampling to be conducted from 2013 to 2015. Sampling will take place at all systems serving more than 10,000 people and at a representative sampling of systems serving less than 10,000 people.
America is shifting to a "green culture" where over 300 million citizens are embracing the fact that environmental responsibility is everyone's responsibility. To help, you can sign up to receive EPA's new consumer newsletter, GO GREEN!
EPA launched this monthly email newsletter to provide "what you can do" information about activities and events that we can use in our homes, communities, and offices.
Protect children from accidental poisoning by household substances. Lock up household pesticides and chemicals in a high cabinet out of the reach of children. March 20-26 is National Poison Prevention Week. http://www.epa.gov/pesticides/health/poisonprevention.htm
Reviewing Regulations. EPA is inviting the public to provide input to our retrospective review of regulations. You can comment regarding the design of the plan, and EPA will also provide opportunities for input through a public meetings:
-in Washington, D.C. on March 14;
-at listening sessions in other parts of the country TBD. http://yosemite.epa.gov/opa/admpress.nsf/names/hq_2011-2-18_Regulation_review
Go Greenscaping! Despite a very snowy winter, March is when we typically begin to think of yards and lawns and being outdoors again. Start with ideas and useful tips for greenscaping - environmentally friendly practices to improve the health and appearance of your lawn and garden. http://www.epa.gov/epawaste/conserve/rrr/greenscapes/owners.htm
It's My Environment! video. Submit your IME video - a short clip of someone doing something for the environment, then reading and passing along a sign that says "It's My Environment." Read more about how to prepare the video and send us yours today! http://www.epa.gov/earthday/video/
March Sneak Peeks:
Women in Science. Join us during March as we observe women scientists and engineers who are devoting their careers to help the Agency meet its mission to protect human health and the environment. You can share in the discussion on daily blog posts, some with companion video interviews of EPA officials or staff scientists. March is Women's History Month. http://www.epa.gov/womeninscience
-Read EPA Administrator Lisa P. Jacksons's kick-off blog post: http://blog.epa.gov/blog/2011/03/01/women-in-science-administrator-lisa-p-jackson/
Fix a Leak! Being handy around the house doesn't have to be difficult. Leaky toilet flappers, faucets, and other valves waste millions of gallons of water but are easy to fix.
March 14-20 is "Fix a Leak" week. http://www.epa.gov/watersense/water_efficiency/fix_a_leak.html
Groundwater awareness. More than 90 percent of all U.S. public drinking water systems use ground water. Learn more about your drinking water and what you can do to help protect your community's ground water.
National Groundwater Awareness Week is March 6-12. http://water.epa.gov/type/groundwater/awarenessweek.cfm
Delaware River Basin Forum. On March 10, you can participate in a free one-day, basin-wide event about water resource sustainability for the more than 15 million people who rely on the waters of the Delaware River. Open to anyone in the Delaware Basin or interested in river issues where you live - you can participate in the forum in person or online. For more information about the forum and how to register: http://www.delawarebasindrinkingwater.org/ Exit EPA Disclaimer
Week
National Groundwater Awareness Week, 6-12
Fix-a-Leak Week, 14-20
National Poison Prevention Week, 20-26
Day
First day of spring (vernal equinox), Mar 20
Welcome to ARPA-e
Dear Colleagues,
Let me first thank you for your interest in ARPA-E. I want to use this opportunity to explain and elaborate on ARPA-E's vision and report on where we are now.
We are living in challenging times, but are surrounded by opportunities. The widespread use of fossil fuels has long driven the engine of economic growth, and yet our dependence on these fuels severely threatens our national and environmental security due to our growing foreign energy dependence as well as climate change. Business as usual is not an option, as the outcome will be devastating. This is true not only for the US, but also for all nations in this interconnected world. The nation that successfully grows its economy with more efficient energy use, a clean domestic energy supply, and a smart energy infrastructure will lead the global economy of the 21st century. In many cases, we are lagging behind. We as a nation need to change course with fierce urgency.
Let us try to comprehend the scale of this challenge with the following question: What were those innovations of the 20th century that changed the course of humankind's history? Perhaps the most important one was the Haber-Bosch process of creating artificial fertilizers by fixing atmospheric nitrogen to form ammonia. It touched humanity like none other because it led to massive increase in food production and an almost four-fold increase in global population in 100 years. But there were plenty of other game-changers: creating semi-dwarf, high-yield strains of wheat that introduced the green revolution; antibiotics; polio vaccination; the transistor and integrated circuits; electrification; the airplane; nuclear energy; optical and wireless communication; the internet; and so on. Now imagine all of these innovations happening in a span of just 10-20 years: That is the scale and pace of game-changing innovations that we now need to address the energy and climate change challenge of our and future generations.
ARPA-E was created to be a catalyst for such a transformation, and to do so with fierce urgency. Our nation's history is replete with examples of pioneers and entrepreneurs who took risks. These innovators often failed initially, but quickly learned from those failures, competed against each other, and innovated in both technology and business to create the largest industrial base the world has ever seen. ARPA-E's goal is to tap into this truly American ethos, and to identify and support the pioneers of the future. With the best R&D infrastructure in the world, a thriving innovation ecosystem in business and entrepreneurship, and a generation of youth that is willing to engage with fearless intensity, we have all the ingredients necessary for future success. The goal of ARPA-E is to harness them and make a full-court press to address our technological gaps and leapfrog over current approaches. In this respect, ARPA-E has made a great start and it is worth reflecting on its 8 months of incubation and delivery.
The first Funding Opportunity Announcement (FOA) was made in May 2009, and it received an unprecedented response from the R&D community: 3,700 concept papers, 334 full proposals, and eventually 37 selected for funding. All this happened in a span of 6 months. We are now in the process of finalizing the award agreements, and we plan to award 80 percent of them by the end of 2009. This is a record setting pace and is being done by an immensely dedicated staff.
As the numbers suggest, only one percent of proposals were selected for funding. By all measures, this is very low. To some extent, this depended on the level of funding. ARPA-E could have easily broken it down into small funding levels and made many more awards. But the decision was made – and I concur - that ARPA-E ought to be selective and fund the most game-changing ideas with significant levels of financial support that will enable the recipients to accelerate technical progress so that after the projects are completed, the technologies are ready to be adopted by the other stakeholders.
I am quite sure that there were many excellent proposals that were not funded. We urge you to return to ARPA-E with your ideas for future workshops and to help us create new programs. We also plan to organize an annual event where we not only want to highlight the technologies that we support, but also invite teams that did not get funded, so that we can connect them to other offices within DOE as well as other funding agencies and organizations. In short, we know that we cannot financially support everyone, but we also realize that we need to build a large community beyond ARPA-E for our nation to change course with fierce urgency.
If we are to foster rapid technological innovations, we also need to innovate in creating a system and a process that enables them to thrive. We are now creating that “DNA” of ARPA-E. First and foremost, we are recruiting a team of some of the best and brightest program directors who have one foot in science, with the other in technology and business, and who are willing to serve the nation at this critical juncture in our history. These will be term appointments for three - four years. In addition, we are also forming a technology outreach team, whose responsibility will be to identify pathways for ARPA-E funded technologies to create business opportunities and be adopted in the market, and explain to the public and all stakeholders how these innovations could be beneficial to society. Finally, we have an operations team that is streamlining the transactions and interactions between ARPA-E and the awardees. The value of an ARPA-E award will be much more than just money. Awardees will have the opportunity to draw on the expertise of three ARPA-E teams: technical program, technology outreach, and operations.
It is very important that we get our DNA right, especially in these early stages. I thank you for taking interest in and working with ARPA-E. I would be delighted to receive feedback from you about how we are doing, and how we could serve you better.
We are now launching our second round of FOAs for a total of $100M. In contrast to the first FOA, which was open to all topics related to energy, these FOAs are more focused. The topics resulted from several workshops that we had over the last three months, where we received input from the technical community. A few of the workshop participants included those who did not get funded in the first round, but who returned to educate ARPA-E about specific technical barriers and potential game changing ideas. We urge you to continue informing and educating us through such forums, and also through one-on-one interactions with the program directors. In short, ARPA-E is looking for the best ideas and we are coming to the table with an open mind.
United States: Possible Funding Opportunities Related To Tribal Energy Development
The U.S. Environmental Protection Agency (EPA), the U.S. Department of Commerce (DOC), the Department of Housing and Urban Development (HUD), and the Department of Transportation (DOT) have announced more than $228 million in funding opportunities for state, local, and tribal governments. Some of these grants can be used to support energy related initiatives. Specific opportunities are listed on the TEEIC Web site at http://teeic.anl.gov/news/ .
In addition, the U.S. Department of Energy (DOE), Tribal Energy Program, periodically distributes information about possible funding opportunities related to energy development, some of which are specific to tribes. These announcements are compiled by Laurie Brown at the Washington State University Extension Energy Program. See http://teeic.anl.gov/news/ for the latest announcement of the Funding Opportunities.
About the TEEIC
The TEEIC Web site (http://teeic.anl.gov) provides information about the environmental effects of energy development on tribal lands.
The site includes information about energy resource development and associated environmental impacts and mitigation measures; guidance for conducting site-specific environmental assessments and developing monitoring programs; information about applicable federal laws and regulations; and federal and tribal points of contact.
The U.S. Department of the Interior is funding the development of the TEEIC through the Assistant Secretary of Indian Affairs' Office of Indian Energy and Economic Development.
February 28, 2011 - The Department of Fish and Game (DFG) has completed the first round of environmental review documents related to California's currently suspended Suction Dredge Permitting Program. The Draft Subsequent Environmental Impact Report (SEIR) is now available for public review and comment.
The Draft SEIR addresses the potential environmental effects of the permitting program, which was suspended in 2009 pending completion of this review, and proposes amendments to the regulations that existed prior to the current moratorium.
In addition to proposing the revised program, the document also evaluates the potential impacts of four alternatives: a No Program Alternative (continuation of the existing moratorium), a 1994 Regulations Alternative (continuation of previous regulations in effect prior to the 2008 moratorium), a Water Quality Alternative (which would include additional program restrictions for water bodies listed as impaired for sediment and mercury pursuant to the Clean Water Act, section 303(d)), and a Reduced Intensity Alternative (which would include greater restrictions on permit issuance and methods of operation to reduce the intensity of environmental effects).
The Draft SEIR and supporting documents are now available on the DFG website at www.dfg.ca.gov/suctiondredge, and can be provided upon request by calling (530) 225-2275. Copies of the Draft SEIR are also available for review at DFG regional offices including:
Region 1 601 Locust St., Redding
Region 2 1701 Nimbus Road, Suite A, Rancho Cordova
Region 3 7329 Silverado Trail, Napa
Region 4 1234 E. Shaw Ave., Fresno
Region 5 4949 Viewridge Ave., San Diego
Region 6 3602 Inland Empire Blvd., Suite C-220, Ontario
Region 6 4665 Lampson Avenue, Suite J, Los Alamitos (second location)
Region 7 20 Lower Ragsdale Drive, Suite 100, Monterey
HQ 1807 13th St., Suite 104, Sacramento
Five public meetings will be held in late March. All interested persons are encouraged to attend to present written and/or verbal comments. The meetings will be held at the following locations and times:
Santa Clarita: Wednesday, March 23 at 5 p.m.
Residence Inn by Marriott
25320 The Old Road
Santa Clarita, CA 91381
Fresno: Thursday, March 24 at 5 p.m.
California Retired Teachers Association
3930 East Saginaw Way
Fresno, CA 93726
Sacramento: Tuesday, March 29 at 5 p.m.
Cal EPA Headquarters Building
Byron Sher Auditorium
1001 I St.
Sacramento
Yreka: Wednesday, March 30 at 5 p.m.
Yreka Community Center
810 N. Oregon St.
Yreka, CA 96097
Redding: Thursday, March 31 at 5 p.m.
Shasta Senior Nutrition Program
100 Mercy Oaks Drive
Redding, CA 96003
Written comments will also be accepted from Feb. 28 through April 29, 2011 at 5 p.m. Comments may be submitted by e-mail to dfgsuctiondredge@dfg.ca.gov or by regular mail to:
Mark Stopher
California Department of Fish and Game
601 Locust St.
Redding, CA 96001
Comments received by the due date will be included in the final SEIR that will be prepared for the California Fish and Game Commission.
For more information about the public meetings or the suction dredge program, please visit www.dfg.ca.gov/suctiondredge/ . If you require reasonable accommodation to attend a meeting or require this notice or the Draft SEIR in an alternate format, please contact the Suction Dredge Program at (530) 225-2275, or the California Relay (Telephone) Service for the deaf or hearing-impaired from TDD phones at 1-800-735-2929 or 711.
House Appropriations Committee Chairman Hal Rodgers (R-Ky.) has introduced a continuing resolution that would cut $100 billion from government operations through Sept. 30. Tea Party activists, who have very astutely maintained pressure on the GOP majority, have good reason to be pleased. The legislation cuts the EPA's budget by $3 billion, which is nearly 30 percent the 2010 level of $10.3 billion. It would also withhold funding for any current and future EPA greenhouse gas regulations on stationary sources. That's a nice step forward for the cause of limited government.
House Republicans have also proposed cuts to the EPA aimed its Global Change Program, which measures the potential fallout from climate change. The bill would chop $7 million from the $21 million the program received in 2010. The EPA's Energy Star program would be also be reduced by about $10 million from where it was in 2010.
President Obama has said he will veto any legislation that strips EPA of its authority to regulate greenhouse gases. But the Republicans are pressing ahead. Most recently, Rep. Tim Walberg (R-Mich.) introduced a version of Sen. John Barrasso's (R-WY) bill to pre-empt permanently all regulation of greenhouse gas emissions using any existing legal authority. Walberg's bill, H.R. 750, has been referred to the Energy and Commerce Committee. Over on the Senate side, Barrasso's S. 228 has 16 co-sponsors.
112TH CONGRESS
1ST SESSION S. 299
To amend chapter 8 of title 5, United States Code, to provide that major
rules of the executive branch shall have no force or effect unless a
joint resolution of approval is enacted into law.
IN THE SENATE OF THE UNITED STATES
FEBRUARY 7, 2011
Mr. PAUL (for himself, Mr. DEMINT, Mr. ENSIGN, Mr. GRASSLEY, Mr.
COBURN, Mr. BLUNT, Mr. THUNE, Mr. ENZI, Mr. CORNYN, Mr. HATCH,
Mr. CHAMBLISS, Mr. JOHNSON of Wisconsin, Mr. ISAKSON, Mr.
BARRASSO, Mr. WICKER, Ms. AYOTTE, Mr. SESSIONS, Mr. PORTMAN,
Mr. JOHANNS, Mr. BOOZMAN, Mr. VITTER, Mr. LEE, Mr. INHOFE, Mrs.
HUTCHISON, and Mr. RUBIO) introduced the following bill; which was
read twice and referred to the Committee on Homeland Security and
Governmental Affairs
A BILL
To amend chapter 8 of title 5, United States Code, to provide
that major rules of the executive branch shall have no
force or effect unless a joint resolution of approval is
enacted into law.
John Locke , an English philosopher admired by Jefferson and many other Founders, succinctly explained what later came to be called the non-delegation doctrine :
The legislative cannot transfer the power of making laws to any other hands, for it being but a delegated power from the people, they who have it cannot pass it on to others.
Similarly, the Supreme Court, in the 1892 case of Field v. Clark , declared:
That Congress cannot delegate legislative power to the President is a principle universally recognized as vital to the integrity and maintenance of a system of government ordained by the Constitution.
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. (Not counting $360 million at Iron Mountain Mine?)
The Endangered Species Act can put up costly hurdles in front of development or even, these days, basic activities like irrigating a crop.
For more than two decades, the Environmental Protection Agency (EPA) has considered four exposure pathways in determining whether to list contaminated sites on the Superfund National Priorities List: groundwater, surface water, soil and air. In a Federal Register notice published on January 31 2011, the EPA solicited public comment on the potential addition of a fifth pathway: soil vapour intrusion.
The migration of vapours from sub-surface contamination into overlying buildings, known as vapour intrusion, is a growing concern for federal and state environmental regulators. Vapour intrusion is most common at sites with elevated levels of volatile organic compounds – including chlorinated solvents and sometimes gasoline – which enter indoor air through openings around sewer lines, cracks in a building's foundation or basement, or other preferential pathways.
Under the federal Superfund law, the EPA screens contaminated sites for listing on the National Priorities List through its Hazard Ranking System, assigning each site a score based on its perceived threat to human health and the environment. The risk of vapour intrusion, however, does not currently factor into this determination. A May 2010 Government Accountability Office report found that, given the EPA's inability to designate National Priorities List sites on the basis of vapour intrusion, "[s]tates may be left to remediate those sites without federal assistance, and given states' constrained budgets, some states may not have the ability to clean up these sites on their own".
Until April 16 2011, the EPA will now be collecting public comment on the potential revision of the Hazard Ranking System to account for vapour intrusion. It plans to hold three public listening sessions on the topic. While it has not proposed specific regulatory changes at this point, the EPA "will consider the information gathered from this Notice, listening sessions, and other sources before making a decision to issue a proposed rulemaking to add subsurface contaminant intrusion" to the Hazard Ranking System.
The EPA is also in the process of revising its draft guidance for the evaluation of vapour intrusion risks, which was initially released in 2002 but has yet to be finalised. The EPA outlined a number of likely changes to that document last October and plans to issue updated guidance by November 2012.
Finally, the New York State Department of Environmental Conservation is continuing to re-evaluate vapour intrusion pathways and has reopened several sites that had already been remediated and delisted to require additional monitoring or mitigation measures.
DOCKETED CAUSE AND ENTERED APPEARANCES OF COUNSEL. SEND MQ: Yes. The schedule is set as follows: Mediation Questionnaire due on 02/23/2011. Transcript ordered by 03/16/2011. Transcript due 04/15/2011. Appellant T. W. Arman and Appellant Iron Mountain Mines, Inc. opening brief due 05/25/2011. Appellee Bayer Cropscience Inc.'s, Appellee Rhone-Poulnec Basic Chemicals Company, Appellee State of California and Appellee United States of America answering brief due 06/24/2011. Appellant's optional reply brief is due 14 days after service of the answering brief. [7650693] (RT)
Filed (ECF) Appellants T. W. Arman and Iron Mountain Mines, Inc. Mediation Questionnaire. Date of service: 02/23/2011. [7658006] (AG)
Briefly describe the procedural history, the result below, and the main issues on appeal.
Describe any proceedings remaining below or any related proceedings in other tribunals.
(Please continue to next page.)
Procedural History:
Plaintiffs US and State of California moved for partial summary judgment on the issue of liability, contending that
Defendants were jointly and severally liable for defense costs. Defendants opposed the motion.
2002: Partial Summary Judgment in favor of plaintiffs - the court denied what was termed the Defendants
"divisibility of harm" defense, saying that "distinct harms" would be difficult to identify.
12/18/2009: Defendants filed a Motion to reconsider, based on the Supreme Court's decision in Northern and Santa
Fe Ry. Co. v. U.S., 129 S.Ct. 1870, 173 L.Ed.2d. 812 (2009) ("Burlington Northern")
5/2/2010: The court denied Defendants motion for reconsideration.
Result: On December 16, 2010, Final Judgment was entered in favor of Plaintiffs.
Main Issue on Appeal:
whether the district court erred in rejecting defendants' divisibility of harm defense (see Northern and Santa Fe Ry.
Co. v. U.S., 129 S.Ct. 1870, 173 L.Ed.2d. 812 (2009) ("Burlington Northern") and further erred in rejecting
defendants' set off defense based on plaintiffs' $800 Million settlement with Rhone-Poulenc in December 2000.
Counsel for defendants T. W. Arman and Iron Mountain Mines, Inc., William A. Logan, Jr. and Logan & Giles LLP
(collectively "LOGAN") intend to file a motion for leave to withdraw. See LOGAN's previously filed Motion for
Leave to Withdraw in ninth circuit case no. 09-17411. The court's order, entered February 22, 2011, denied the
motion "but without prejudice to renewal of the withdrawal motion in the appeal of the final judgment."
Counsel for defendants T. W. Arman and Iron Mountain Mines, Inc., William A. Logan, Jr. and Logan & Giles LLP
(collectively "LOGAN") intend to file a motion for leave to withdraw. See LOGAN's previously filed Motion for
Leave to Withdraw in ninth circuit case no. 09-17411. The court's order, entered February 22, 2011, denied the
motion "but without prejudice to renewal of the withdrawal motion in the appeal of the final judgment."
General Docket
United States Court of Appeals for the Ninth Circuit
Court of Appeals Docket #: 09-70047
Docketed: 01/07/2009 Termed: 02/18/2009
John Hutchens v. USDC-CES
Appeal From: U.S. District Court for Eastern California, Sacramento
Filed Petitioner John F. Hutchens motion for adjudication and judgement on the merits, motion for appointment of project manager according to the statement of work. Served on 02/07/2009. (NEW)
02/13/2009
6
Filed Petitioner John F. Hutchens motion for injunctive relief. Served on 02/12/2009. (NEW)
Order filed (DIARMUID F. O'SCANNLAIN, BARRY G. SILVERMAN and JAY S. BYBEE) Petitioner has not demonstrated that this case warrants the intervention of this court by means of the extraordinary remedy of mandamus. See Bauman v. United States Dist. Court, 557 F.2d 650 (9th Cir. 1977). Accordingly, the petition is denied. All pending motions denied as moot. (WL)
Filed order (DIARMUID F. O'SCANNLAIN, BARRY G. SILVERMAN and JAY S. BYBEE) The motion for reconsideration is denied. See 9th Cir. R. 27-10. All other pending motions are denied as moot. No further filings shall be accepted in this closed case. (WL)
Court of Appeals Docket #: 09-71150
Docketed: 04/20/2009 Termed: 07/28/2009
John Hutchens, et al v. USDC-CES
Appeal From: U.S. District Court for Eastern California, Sacramento
Order filed (WILLIAM C. CANBY, SIDNEY R. THOMAS and SANDRA S. IKUTA) Petitioners have not demonstrated that this case warrants the intervention of this court by means of the extraordinary remedy of mandamus. See Bauman v. United States Dist. Court, 557 F.2d 650 (9th Cir. 1977). Accordingly, the petition is denied. The motion to proceed in forma pauperis is denied as moot. All other pending motions are denied as moot. No motions for reconsideration, rehearing, clarification, or any other submissions shall be filed or entertained in this closed docket. [7007054] (WL)
02/11/2010
12
Received Petitioner John F. Hutchens pleading "certiorarified mandamus, administrative mandamus, adverse claims...."NO FILE - NAN ( 1.5 inch bound, unindexed pleading has not been scanned) . [7230421] (CW)
Full docket text for document 13:
ORDER denying [7] Motion for Preliminary Injunction Plaintiff shall file a Second Amended Complaint by 6/15/2009. Defendant shall file its Answer by 7/6/2009.[THE COURT SHALL ACCEPT FOR FILING NO PLEADINGS OTHER THAN WHAT IS DIRECTED IN PARAGRAPH 3] Signed by Judge Christine O.C. Miller. (bre, )
Full docket text for document 24:
ORDER 1. The Clerk of the Court shall accept no other filings of any type from plaintiffs until the court has resolved defendant's pending Motion to Strike. 2. The time which defendant shall respond to plaintiffs' "Motion for a Name Clearing Hearing is STAYED pending further order of the court. Signed by Judge Christine O.C. Miller. (bre, )
Full docket text for document 26:
ORDER RETURNING UNFILED: Ex Parte : Officer's Oath by Clerk's Notice Adverse Claims, and Application for Ex Parte Writ of Possession Executed Under Oath received 9/11/2009. Signed by Judge Christine O.C. Miller. (bre, )
Full docket text for document 27:
PUBLISHED OPINION denying plaintiffs' motion filed August 31, 2009, granting defendant's [15] Motion to Strike insofar as plaintiff Iron Mountain Mines, Inc. is stricken from the second amended complaint, and the Clerk is directed to dismiss the second amended complaint including plaintiffs'August 20, 2009 "petition" without prejudice for lack of subject matter jurisdiction. Signed by Judge Christine O.C. Miller. (lld)
1:09-cv-00207-CCM HUTCHENS et al v. USA
Christine O.C. Miller, presiding Date filed: 04/06/2009 Date terminated: 10/13/2009 Date of last filing: 10/13/2009
History
Doc.
No. Dates Description
28
Filed & Entered:
10/13/2009
Judgment
27
Filed:
10/06/2009
Entered:
10/13/2009
Order on Motion to Strike
25
Filed & Entered:
09/29/2009
Terminated:
10/13/2009
Motion for Miscellaneous Relief
26
Filed & Entered:
09/29/2009
Order Returning Document Unfiled
24
Filed & Entered:
09/10/2009
Order
23
Filed & Entered:
09/08/2009
Response to Motion
22
Filed:
08/27/2009
Entered:
09/01/2009
Terminated:
10/13/2009
Motion for Hearing
21
Filed:
08/20/2009
Entered:
08/25/2009
Terminated:
10/13/2009
Motion for Leave to File
20
Filed:
08/14/2009
Entered:
08/18/2009
Reply to Response to Motion
19
Filed & Entered:
07/16/2009
Order
18
Filed & Entered:
07/15/2009
Order
16
Filed:
07/13/2009
Entered:
07/14/2009
Response to Motion [Dispositive]
17
Filed:
07/13/2009
Entered:
07/14/2009
Order on Motion to Strike
15
Filed:
07/06/2009
Entered:
07/07/2009
Terminated:
10/06/2009
Motion to Strike
14
Filed:
06/11/2009
Entered:
06/12/2009
Amended Complaint
13
Filed & Entered:
05/27/2009
Order on Motion for Preliminary Injunction
Filed & Entered:
05/26/2009
Status Conference
12
Filed:
05/26/2009
Entered:
05/27/2009
Response
11
Filed:
05/22/2009
Entered:
05/26/2009
Response to Motion [Dispositive]
10
Filed & Entered:
05/21/2009
Order on Motion for Status Conference
8
Filed & Entered:
05/15/2009
Order on Motion for Preliminary Injunction
9
Filed:
05/15/2009
Entered:
05/19/2009
Terminated:
05/21/2009
Motion for Status Conference
5
Filed & Entered:
05/12/2009
Notice of Appearance
7
Filed:
05/11/2009
Entered:
05/13/2009
Terminated:
05/27/2009
Motion for Preliminary Injunction
6
Filed:
05/07/2009
Entered:
05/13/2009
Amended Complaint
4
Filed:
04/08/2009
Entered:
04/09/2009
Order on Motion for Leave to Proceed in forma pauperis
1
Filed:
04/06/2009
Entered:
04/08/2009
Complaint
2
Filed:
04/06/2009
Entered:
04/08/2009
Terminated:
04/08/2009
Motion for Leave to Proceed in forma pauperis
3
Filed:
04/06/2009
Entered:
04/08/2009
Notice of Assignment
Remedy Review pursuant to 121 (c) CERCLA,
Remedial Investigation and Feasibility Study and
Restoration Plan Proposal for Modifications to Remedial Design and Remedial Action
And proposal for new Statement of Work (SOW) schedule, and budget (CERCLIS)
Concerning:
Iron Mountain Mine
To: The United States of America , National Resource Trustees,
U.S. District Court for the Eastern District of California, U.S. Environmental Protection Agency, National Marine Fisheries Service of the National Oceanic and Atmospheric Administration, U.S. Bureau of Reclamation, U.S. Bureau of Land Management,
State of California, California Environmental Protection Agency, California Department of Toxic Substances Control, California Hazardous Substances Account, California Hazardous Substances Cleanup Fund, California Toxic Substances Control Account, Regional Water Quality Control Board for the Central Valley Region, California State Water Resources Control Board, California Department of Fish and Game, California state Lands Commission, IT, ITX, IT Iron Mountain Operations LLC, IT Administrative Services LLC, Trust I, Trust II, the Trustee, AISLIC, and any and all successors, and the Oversight Agency, and the Ecosystem Restoration Program.
CALFED Bay-Delta Program
Rebecca Fris , CALFED Ecosystem Restoration Program, Sacramento , CA
California Department of Fish and Game
Habitat Conservation Program, Region 1, Redding , CA
Mark Stopher, Environmental Program Manager, DFG, Redding , CA
John Spitzley, Geologic Engineer, CH2MHILL, Redding , CA
Bureau of Land Management
Redding Field Office, BLM, Redding , CA
Bureau of Reclamation
Kerry Rae, Special Assistant to the Deputy Regional Director, Sacramento , CA
United States Environmental Protection Agency
Rick Sugarek, Remedial Project Manager, EPA Superfund , San Francisco , CA
National Oceanic and Atmospheric Administration
Jim Bybee, Supervisor, Habitat Conservation Division, National Marine Fisheries Service, NOAA, Santa Rosa , CA
David Chapman, West Coast Damage Assessment Coordinator, NOAA,
Elizabeth Jones, Damage Assessment and Restoration Program, NOAA,
Gary Stern, Fisheries Biologist, National Marine Fisheries Service, NOAA ,
U.S. Department of the Interior
Clementine Berger, Acting Regional Solicitor, Sacramento , CA
U.S. Fish and Wildlife Service
Dan Castleberry, USFWS, Sacramento , CA
Mike Thabault, USFWS, Sacramento , CA
Tom Suchanek, NRDA Branch Chief, USFWS, Sacramento , CA
The Iron Mountain Mine Trustee Council.
! Laura Allen, USBR, Trustee, Primary
! Natalie Cosentino-Manning, NOAA, Technical
! Dr. Russell Bellmer, NOAA, Technical
! LCDR Michael Devany, NOAA, Trustee, Primary
! Richard Forester, BLM, Trustee, Primary
! Charlene Hall, USFWS, Technical
! Nick Iadanza, NOAA, Technical
! Paul Meyer, BLM, Trustee, Alternate
! Harry Rectenwald, DFG, Trustee, Alternate
! Steve Schwarzbach, USFWS, Trustee, Primary
! Gail Siani, NOAA, Legal
! Robert Taylor, NOAA, Legal, Trustee Alternate
! Triscilla Taylor, DOI, Legal
! Steve Turek, DFG, Trustee, Primary
! Daniel Welsh, USFWS, Trustee, Alternate
! Diane Wisniewski, USBR, Trustee, Alternate
Pursuant to:
Consent decree of Dec. 8 th , 2000
Paragraphs 85 and 86:
85. The United States and the State agencies acknowledge and agree, and by entering this Consent Decree this Court finds, that the payments to be made by the Settling Parties pursuant to this Consent Decree represent a good faith settlement and compromise of disputed claims, that the Work to be performed under this Consent Decree and the SOW by the Site Operator represents a valuable benefit to the United States and the State agencies, and that the settlement represents a fair, reasonable, and equitable resolution of the matters addressed in this Consent Decree. The Parties further agree, and by entering this Consent Decree this Court finds, that the Released Parties, the Site Operator, the IT Parties, Trust I, Trust II, and the Trustee are entitled, as of the Effective Date of this Consent Decree, to protection from costs, damages, actions, or other claims (whether seeking contribution, indemnification, or however denominated) for matters addressed in this Consent Decree, as provided by (1) CERCLA Section 113(f)(2), 42 U.S.C.§ 9613 (f)(2), and (2) all other applicable provisions of federal or state statutes or of common law that may limit or extinguish their potential liability to persons not a party to this Consent Decree, including without limitations Sections 877 and 877.6 of the California Code of Civil Procedure.
42 U.S.C.§§ 6901: (a)4: that while the collection and disposal of solid wastes should continue to be primarily the function of State, regional, and local agencies, the problems of waste disposal as set forth above have become a matter national in scope and in concern and necessitate Federal action through financial and technical assistance and leadership in the development, demonstration, and application of new and improved methods and processes to reduce the amount of waste and unsalvageable materials and to provide for proper and economical solid waste disposal practices. ; (b)6: if hazardous waste management is improperly performed in the first instance, corrective action is likely to be expensive, complex, and time consuming; (c)1,2,3;(d)1: millions of tons of recoverable material which could be used are needlessly buried each year ; 2: methods are available to separate usable materials from solid waste; 3: the recovery and conservation of such materials can reduce the dependence of the United States on foreign resources and reduce the deficit in its balance of payments. ; 6907(g), 6913: The Administrator shall provide teams of personnel, including Federal, State, and local employees or contractors (hereinafter referred to as “Resource Conservation and Recovery Panels”) to provide Federal agencies, States and local governments upon request with technical assistance on solid waste management, resource recovery, and resource conservation. Such teams shall include technical, marketing, financial, and institutional specialists, and the services of such teams shall be provided without charge to States or local governments.
9607(b), 9613(b), 9619
28 U.S.C.§§ 1331, 1345, 1651
And Claims Pursuant to paragraph 71, 77(c), 103, 107(d) and 109 and according to the Final Judgment (119) of the Consent Decree of Dec. 8, 2000
In 1872, Congress enacted the General Mining Law, allowing miners to enter onto federal land, locate valuable mineral deposits, and develop those minerals. Once a miner's claim was staked, it was inviolate against all other claims, except those asserted by the federal government itself, which could challenge the validity of a miner's claim at any time.
Miners were required to perform annual assessment work, or else the land was open to relocation by rival claimants as if no prior claim existed. If the original claimant resumed work before such relocation, the claim was preserved. Often called the “resumption doctrine,” this is the “statutory right to resume work.”
Regulatory Investigations and Remediation
Several investigations and regulatory actions at Iron Mountain have been initiated by California State agencies over the last few decades. These are too lengthy to summarize here. Since the original listing of Iron Mountain on the National Priorities List in 1983, the EPA has authorized four Records of Decision (RODs) and has considered numerous options for remediation. A condensed version of the main remedial alternatives is as follows:
No action
Surface-water diversion
Lime neutralization
Capping (partial or complete capping of the mountain to prevent infiltration)
Enlargement of Spring Creek Debris Dam (acid water storage and release structure)
Ground-water interception
Air sealing
Mine plugging
On-site leaching and solution extraction
Continued mining under env iron mentally safe conditions
Combined alternatives
The EPA and the potentially responsible parties remain in legal contention over the appropriate final remediation approaches to be used at Iron Mountain Mine and the costs. Both the U.S. Government and the potentially responsible parties have funded a considerable number of investigations, remediation efforts, legal fees, and oversight management. The loads of copper, zinc, and cadmium into the Sacramento River have been reduced by 80-90%, and further remediation is in progress or being planned. The main challenge that remains is how to find a permanent (and passive) treatment solution in light of the fact that the mine drainage will continue for approximately 3,000 years unless the sulfide ore is mined out.
The remedial action undertaken at Iron Mountain Mine has effectively reduced the Acid Mine Discharge into the Sacramento River as required by the Record of Decision and Consent Decree. However, the method used, (lime neutralization), has resulted in the accumulation of some 400,000 tons of solid waste. The present on-site storage facility will be filled in another 20 years, and the proposed expansion of that site according to the current Scope of Work will be exhausted within 50 years after that. By that time the current process will have created an equivalent volume of sludge to the Great Pyramid of Egypt, and since the anticipated need for mitigation of the Acid Mine Drainage is expected to continue for another 3,000 years, clearly a better solution is needed.
The Proposed Remedial Project Manager hereby proposes to implement modifications to the existing Scope of Work to abate the accumulation of solid waste and improve upon the current mitigation of water pollution (presently about 90%) according to the following general plan.
• Pre-treat the AMD at the mine portal discharge and in transport to the holding tanks with a hydrogen sulphide/ carbonation / melamine/ tmt / ammonia treatment to raise the ph to about 4, with an initial precipitation of much of the tri-valent iron, cadmium, lead, copper, zinc, and other metals, followed by filtering through porous iron to remove any latent arsenic.
• Divert a portion of the pre-processed AMD for a coal/ humic acid processing facility, which humic acids will be processed with urea and ammonia, to chelate a significant portion of the remaining metals in solution for use in agricultural fertilizers.
• Divert a portion of the pre-processed AMD for a coal gasification plant, which plant will supply ammonia and related products and hydrocarbons, and provide power for the facility.
• Divert a portion of the pre-processed AMD to a processing facility to recover and recycle the high density sludge (HDS) that has been disposed upon the property. This re-processing of the HDS will separate the suspended minerals for processing and marketing, manufacture ammonia sulphate for fertilizer marketing, produce precipitated calcium carbonate for processing and marketing, and produce enough lime, (calcium hydroxide), of very high purity for reuse in the lime neutralization plant, thereby reducing or eliminating the need to bring additional lime to the site.
• Reduce by 99% the discharge of AMD into the Sacramento River .
• Maintain the existing system for periods of elevated flow conditions.
• Provide Environmental Enhancements to fulfill the Consent Decree.
Work Assignment (WA's) not applicable
Inter-Agency agreements (IAG's) not applicable
Cooperative agreements (CA's) not applicable
Consent Decrees (CD) and Unilateral Administrative Orders (UAO)
2.2.2 Project Funding, Budget, and Cost
All costs to be funded by the existing trusts.
2.2.3 RD/ RA Schedule
Immediately, (posting of bond).
3.2 Project Management Plan
Private development plan with property owner
Definition of project objectives
Eliminate remaining water pollution and remedy solid waste issues
Organizational Structure: American, Native
Lead Management: John Hutchens - IMMI
Joint Venture with Iron Mountain Mine, Inc. / Ted Arman, President
IRON MOUNTAIN MINE INSTITUTE, COLLEGE OF THE HUMMINGBIRD
FEMA, SHASTA COUNTY, & the Iron Mountain Mine Trustee Council
CALFED Bay-Delta Program, California Department of Fish and Game
BLM, DEPT. OF INTERIOR, MINING BUREAU FEDERATION,
ESSENTIAL PRODUCTS ADMINISTRATION, AUDITOR INSPECTOR GENERAL
Communications Structure
Iron Mountain website: ironmountainmine.com
Project Constraints
Schedule, Fast-Track
Scope, entire site
Budget, pursuant to Consent Decree, Trustees, National Resources Trust
RD/RA contracting strategy Identifying opportunities to accelerate the schedule
Phasing, Fast-tracking, Pre-placed and pre-qualified contracts,Design approach
Detailed design specifications and drawings
Performance based specifications and drawings
Cost plus reimbursement
Time and Materials
Indefinite delivery orders
Non-competitive procurement
Schedule development
Immediate
Budget preparation
Independent government cost estimates (IGCE's): not applicable
Superfund State Contract (SSC) timing: not applicable
Property access issues: not applicable
Community relations
Project will provide hundreds of job opportunities.
Army Corp of Engineers assistance (USACE): Requested
12. Unresolved Issues:
12. Operation and Maintenance Issues: Pending 5 year review
3.7.3 Record of Decision Changes
Minor applicable
Significant (CERCLA 117(c): applicable
Fundamental (CFR section 300, 435 (c)(2): applicable
OSWER 9355.3-02/FS Post ROD changes (SSC): applicable
3.8 Scheduling the RD/RA
Baseline schedule: plans and permits
Work Breakdown schedule (WBS)
Gantt chart Method
Critical Path Method
3.9 RD/RA budget
3.10 Contracting Strategy (non-EPA funds)
Competitive bidding
3.10.1 Schedule Acceleration
Phasing
Existing Information
Types of Waste
Funding Availability
Fast Tracking
Expedited RD
Optimized RD
Fast tracking RA
3.10.2 RD/RA Design Approach
Detailed Design Specifications
Performance Based Specifications
RA Contracts
Fixed Price Contracts
Cost Reimbursement Contracts
Time and Materials Contracts
Time and Materials Contracts
RA contractor bond
3.11 Coordinating with the State
State Memorandum of Agreement (SMOA)
3.12 Community Relations
4.2 EPA and USACE assistance to RPM
4.3 Developing the Statement of Work (SOW)
Remedial Investigation (RI)
Feasibility Study (FS)
• Remedial Design statement of Work
• Preliminary Remedial Design Schedule
• Independent Government Cost Estimate: not applicable
• Tasking the Remedial Design
RPM as Work Assignment Manager (WAM)
RD WA package
Work Assignment Form (WAF)
Statement of Work (SOW)
RD WA Amendments and Technical Directives
• Progress of Remedial Design
• Habitat Enhancement
Comprehensive site improvements, public facilities, landscaping, trails, resort, chalets, restaurants, shops, and monument.
ESTIMATE OF LONGEVITY OF POLLUTION FROM THE RICHMOND MINE AT IRON MOUNTAIN , CALIFORNIA
Environment and Sustainability, Newcastle University, 3rd Floor Devonshire Building, Devonshire Terrace, Newcastle Upon Tyne, NE1 7RU, United Kingdom, natalie.kruse@ncl.ac.uk
KRUSE, Natalie A.S. and YOUNGER, Paul L., Instit Environment and
Sustainability, Newcastle University, 3rd Floor Devonshire Building, Devonshire Terrace, Newcastle Upon Tyne, NE1 7RU, United Kingdom, natalie.kruse@ncl.ac.uk.
The Pollutant Loadings Above average Pyrite Influenced Geochemistry Pollutant Sources and Sinks in Underground Mines (PLAYING POSSUM) model, developed at Newcastle University utilizes object-oriented programming techniques and geochemical algorithms to simulate hydro-geochemical changes in mine water. PLAYING POSSUM may be applied to abandoned coal and metal mines in order to confirm the governing geochemical processes in the system and to predict the longevity of polluting drainages. The model solves for hydro-geochemical changes based on mineral weathering of a suite of 28 minerals, mineral precipitation, reversible sorption, dissolution and precipitation of acid generating salts and addition of pollutants from dispersed inflows. PLAYING POSSUM has been used to simulate the discharge from Richmond Mine at Iron Mountain , Shasta County , California , in an attempt create a process-based estimate of the longevity of the polluting drainage. In contrast to the U.S. Geological Survey steady-state estimate of 3200 years until the ore body is exhausted, the simulation solution created by PLAYING POSSUM estimates that the mine water chemistry will decrease to asymptotic levels after approximately 3500 years. Although these results seem compatible, the asymptotic pollution levels are only approximately 10% of the initial levels and, therefore, the discharge is still highly polluting. During the 5000 year simulation period, only 40% of the remaining ore body weathers. The estimate of pollution longevity produced by PLAYING POSSUM shows the need for non steady-state estimates based on geochemical controls acting in abandoned mine systems.
2007 GSA Denver Annual Meeting (28–31 October 2007)
Purpose
This scoping document has been prepared for Iron Mountain Mines, Inc. and for the Iron Mountain Mine Remediation Project which entails development of the Iron Mountain ore bodies of the existing Iron Mountain Mine in northwestern California . Scoping is one of the first steps in the National Environmental Policy Act (NEPA) process. Scoping serves to inform interested parties about the proposed project, issues,
and alternatives, and to seek input on the project and issues of concern. This input will be used
in developing a Supplemental Environmental Impact Statement (SEIS) for the Iron Mountain Mine
Remediation Project. This scoping document provides a description of the existing Iron Mountain
Mine and proposed Iron Mountain Project, lists significant issues, and identifies how and by when
to submit comments.
Introduction
Background
The Iron Mountain Mine is located in northwestern California , approximately 9 miles north of
Redding. The mine is on private land owned by Iron Mountain Mines, Inc. The previous removal actions are operated by AIG Consultants under a insurance policy issued pursuant to a partial settlement and Consent Decree between the responsible parties and the EPA and DOJ of Dec, 2000.
The proposed Iron Mountain Project encompasses the activities required for Iron Mountain mine to develop the Iron Mountain Deposits and reclaim the site with a hydropower pump storage project.
The Iron Mountain Mine consists of an open pit zinc-sulfur mine, mill sites for processing ore, tailings
Impoundments, and support facilities.
After mine development, in 1978, Iron Mountain Mines, Inc. submitted an application for a Clean
Water Act (CWA) Section 402 National Pollutant Discharge Elimination System (NPDES)
permit to discharge treated wastewater from the mine through an outfall to the Sacramento river . The
surface water discharge was a new source in accordance with 40 CFR Part 122.2.
Iron Mountain Mine
Site
This Notice of Intent (NOI) is prepared by Iron Mountain Mines, Inc. and AMD&CSI as an Environmental Impact Statement (EIS) on the potential environmental impacts of the proposed operation in compliance with the Council on Environmental Quality NEPA regulations
at 40 CFR Part 1500 and 40 CFR Part 6, EPA's NEPA implementing regulations. EPA and BLM
issued an EIS in 1989. EPA issued the first NPDES permit in 1978.
The original NPDES permit for the mine site was superceded by ROD 1 issued in 1986. Since that time EPA has obtained interim waivers for compliance with numerical limits on pollution discharge. Prior to each permit action, EPA has not complied with NEPA by preparing an environmental assessment (EA) that evaluated the potential impacts of its actions.
On May 4, 2008, Iron Mountain Mines, Inc. submitted a request for resumption of mining for the Iron Mountain Project. The 1989 EIS did not evaluate potential impacts from developing the Iron Mountain Deposit.
Therefore, an SEIS is necessary in order to fully evaluate impacts from the Iron Mountain Project and support Iron Mountain Mine future NPDES permitting actions associated with the
Iron Mountain Project. The SEIS is also intended to support permitting of the Iron Mountain Project by the
U.S. Army Corps of Engineers (COE) under CWA Section 404. Both federal actions, the
NPDES permit and the 404 permit require compliance with NEPA.
The Iron Mountain SEIS will evaluate impacts associated with the extension of operations resulting
from developing the Iron Mountain Deposit. The SEIS will describe current site conditions and
impacts projected in the 1989 EIS. As applicable, the SEIS will discuss whether significant
impacts or changes occur Iron Mountain that were not anticipated in the 1984 EIS.
To support preparation of the Iron Mountain SEIS, Iron Mountain Mines, Inc. has prepared for Iron Mountain an environmental information document (EID) that details the proposed Iron Mountain Project, presents baseline data, and describes the impacts of the project. The EID can be obtained from the project website at
www.ironmountainmine.com .
Agency Involvement
Shasta County will be the lead agency for the SEIS process, and will issue a record of decision
(ROD) documenting the SEIS conclusions and Shasta County 's decision regarding modification of the
facility's NPDES permit. As one of the cooperating agencies, the DTSC and RSWQCB will issue their own ROD to document its permitting decision regarding fill activities in waters of the U.S. , including
jurisdictional wetlands under the CWA Section 404 permit.
In addition the California Department of Natural Resources (ADNR), and the department of fish and game
will participate closely in the SEIS process as cooperating agencies.
Shasta County will coordinate all of the State's permitting activities. The NPS's involvement relates to
potential effects on the Sacramento river . While none of these entities has an
independent requirement to comply with NEPA, they each provide special expertise to the
project and the information in the SEIS may benefit their decisions regarding the project. The
roles and responsibilities of the lead and cooperating agencies are described in a Memorandum
of Understanding (MOU) between the agencies.
On May 17, 2008, EPA was given notice to enter with Iron Mountain Mines, Inc. into a MOU that sets out the terms of cooperation in the development of the SEIS for a jointly owned hazardous waste repository on private property. The proposed MOU also outlines the terms under which the Iron Mountain Mines, Inc. will prepare the SEIS using a third-party contractor.
Permitting Requirements
The proposed Iron Mountain Project will require no new permits or modification of existing permits
before development can proceed. The major permits or authorizations that may be required eventually by Iron Mountain are listed below.
Federal Authorities
U.S Environmental Protection Agency:
?? CWA Section 402 NPDES permit for wastewater discharges into waters of the U.S.
U.S. Army Corps of Engineers:
?? CWA Section 404 wetlands permit for the discharge of Iron Mountain or fill material into
waters of the U.S. , including jurisdictional wetlands
?? Fish habitat permits for diversions and water withdrawals
?? State Water Rights permits for water withdrawals
?? Certificate of Approval to Construct Iron Mountain Tailings Dam and Back Dam
?? Certificate of Approval to Operate Iron Mountain Tailings Dam and Back Dam
?? Coastal zone consistency determination under the Coastal Zone Management Act and
the California Coastal Management Program Act of 1977
California Department of Environmental Conservation:
?? Air Quality Permit to Operate (Title V) No. 290TVP014
?? Waste Management Permit covering disposal of mine tailings, waste rock, overburden,
and solid waste, management of open pits and ground water, storage and containment of
hazardous chemicals, facility reclamation, and facility closure
?? Financial Assurance (in conjunction with ADNR requirements)
?? CWA Section 401 certifications of reasonable assurance for NPDES/Section 402 and
COE/Section 404 permits
Local Authorities
?? Title 9 zoning permits
?? Master Plan or Revised Master Plan
Purpose of Scoping
Scoping is a process intended to reach out to all interested parties to assist Iron Mountain Mine and the cooperating agencies in identifying areas and issues of concern associated with the proposed
Iron Mountain Project. The process is designed to help ensure that all significant issues are fully
addressed during the course of the SEIS process. The main objectives of the scoping process are to:
?? Provide the public, regional stakeholders, and regulatory agencies with a basic
understanding of the existing Iron Mountain Mine and proposed Iron Mountain Project;
?? Provide a framework for the public to ask questions, raise concerns, and identify
specific issues; and recommend options other than those currently proposed; and
?? Explain where to find additional information about the project.
To assist in reaching these objectives, this scoping document:
?? Presents a schedule for the scoping process;
?? Describes the scoping open houses and public meetings to be held in October 2009;
?? Presents a brief summary of the existing Iron Mountain operations and the proposed Iron Mountain
Project;
?? Identifies where additional information about the proposed project can be obtained;
?? Describes how the public can participate in the SEIS process after scoping; and
?? Presents a tentative SEIS schedule.
Scoping Schedule
The scoping process will begin when EPA publishes the Notice of Intent (NOI) to prepare an SEIS in the Federal Register. This scoping document will be distributed for public and agency review and comment at the same time. The scoping comment period will end in 90 days . EPA will then review all comments, identify the issues, and distribute a scoping responsiveness summary to the public and to the State and Federal agencies and Tribal governments. The scoping responsiveness summary will summarize comments received during the scoping period and describe how EPA intends to respond to them during the SEIS process.
Scoping Meetings
EPA will host four Iron Mountain Project scoping open houses/public meetings.
Each scoping meeting will include an informal open house held from 3:30 to 5:30 PM. This will
be followed by a public meeting from 6:30 to 9:00 PM that will include: (1) a presentation of the
project by EPA and the cooperating agencies; (2) a time for questions and answers; and (3) a
time for formal public testimony.
The scoping meetings will serve two important purposes. One is to listen to and record the
public's comments about the Iron Mountain Project as described in this scoping document. The second
is to respond to the public's requests for background information that they might need to fully
understand the project description and proposed scope of the SEIS analysis before commenting.
EPA, the cooperating agencies, and staff from Tetra Tech will be available to answer questions
and explain methodologies for interested members of the public. Scoping comments from the
public will be welcomed during the scoping meetings, or they may be submitted to EPA in
writing.
Information Sources
Copies of the scoping document, 1989 EIS, past EAs, and current NPDES may be viewed at the
following locations:
Environmental Protection Agency
Redding library
How to Comment
Comments may be submitted at the open houses (in writing or recorded verbally), or they may be
submitted to EPA in writing, by e-mail, or by fax, until the comment period deadline.
Activities after Scoping
Following the scoping process and identification of issues, EPA will prepare the SEIS under Iron Mountain Mines, Inc. direction. The steps involved in SEIS preparation and public
and agency review of the document are shown in Figure 2. The public is welcome to participate
throughout the SEIS process, and there are specific points at which public input is specifically
sought. These are listed below, along with their tentative dates, though schedule changes will
likely occur.
Public participation process:
?? Distribution of Draft SEIS for public/agency review
?? Draft SEIS open houses and public hearings
?? Close of public/agency Draft SEIS review period
?? Distribution of Final SEIS
?? EPA Record of Decision and NPDES permit decision
Figure 2: Iron Mountain Mine Remediation Project - SEIS Process and Schedule
Applicant's Proposed Project
The Iron Mountain Project includes the activities required for Iron Mountain Mines, Inc. to develop the Iron Mountain Deposit using solution mining technologies to manage and mitigate the migration of minerals from the Iron Mountain Mines site. As such, the project is considered by Iron Mountain Mines, Inc.an
extension of the existing Iron Mountain Mine superfund remediation. The following sections summarize the existing operations at the Iron Mountain Mine and the Applicant's current proposal for developing the Iron Mountain Deposit.
Overview
Development History of the Iron Mountain Mine
Initial development and construction of the Iron Mountain Mine Project began in 1896, and production
started in November 1887.
Water Management
Current Water Management, Iron Mountain Development
Other Facilities
The Iron Mountain Mine includes various additional infrastructure facilities that are summarized in
Table 2. These are generally unaffected by the Iron Mountain Project.
Table 2: Other Facilities at the Iron Mountain Mine
Facility Description
Water Treatment reats raw acid mine water from the mine with lime
Facility Description
Employment
The mine will provide direct employment for approximately 360 people
Reclamation and Closure
20 years
Alternatives
Preliminary Issues of Concern
EPA and the cooperating agencies have identified the following preliminary issues of concern associated with the proposed Iron Mountain Project.
?? Maintaining or improving the quality and quantity of water
?? Maintaining the quality and quantity of fishery habitat, and minimizing disruption of fish movements
?? Maintaining the quality and quantity of wildlife habitat, and minimizing impacts on wildlife
?? Protecting subsistence resources and their use
?? Minimizing potentially negative and maximizing potentially positive health impacts to residents
?? Minimizing impacts on vegetation at the site and along the road.
?? Minimizing the social, cultural, and economic impacts on residents of the region.
?? Evaluating operational and post-closure water balance.
?? Maintaining the integrity of the tailings impoundment and associated dams
?? Determining appropriate cleanup levels and sampling protocols for metals contamination on NPS lands.
?? Mitigating possible cross-boundary impacts to NPS units from the mining operation and ancillary facilities including, but not limited to, vehicle and equipment air emissions, dust, night lighting, and noise.
?? Minimizing fugitive dust from all sources and maintaining air quality.
?? Minimizing long-term environmental risks.
?? Assuring that closure and post-closure costs are accurately estimated and that there is adequate financial assurance to cover costs.
?? Minimizing long-term economic risks to the land owner and the State of California
EPA is seeking public input to identify other significant concerns. All substantive issues identified by the public will be consideIron Mountain by EPA in formulating the scope of analysis for the SEIS. Following scoping, EPA will prepare a scoping responsiveness summary that will describe how the above issues and additional issues raised by the public will be responded to in the SEIS process.
Public Solicitation of Input for Actions in the Iron Mountain Project Area
NEPA requires that EISs include an assessment of cumulative impacts. Specifically, 40 CFR
Part 1508.7 defines cumulative impacts and directs federal agencies to assess, “the impact on
the environment which results from the incremental impact of the action when added to other
past, present, and reasonably foreseeable future actions regardless of what agency (Federal or
non-Federal) or person undertakes such other actions. Cumulative impacts can result from
individually minor but collectively significant actions taking place over a period of time.”
All federal and state agencies, Tribal governments, local governments, private companies,
organizations, and individuals are asked to notify EPA of any past, present, or future actions
they are aware of near the Iron Mountain Project. EPA respectfully requests this information to
ensure that the SEIS adequately addresses the cumulative impact that may occur to the
environment if the Iron Mountain Project were to be developed. If you are aware of another agency
or entity that has, is, or likely will take action near the Iron Mountain Project area, please contact
John F. Hutchens by the close of the scoping process comment period (see previous section for
contact information).
Sustainable Science at EPA
Air Date: Week of February 25, 2011
Dr. Paul Anastas pioneered the field of green chemistry, which he calls “the molecular basis of sustainability.” (Yale University Green Chemistry Center)
The Environmental Protection Agency's top scientist says today's environmental problems require a “seismic shift” in the way EPA works. Living on Earth's Jeff Young profiles Paul Anastas (uh NAS tus). The green chemistry pioneer wants to put the principles of sustainability at the center of EPA science.
GELLERMAN: It's Living on Earth, I'm Bruce Gellerman. The Environmental Protection Agency recently turned 40, and like a lot of 40 year olds, the agency is taking a midlife look in the mirror - metaphorically speaking, anyway - and planning some big changes.
The EPA is undertaking what some call a "seismic shift" in the way it works: making "sustainability" its central goal. To do that, the agency is counting on Paul Anastas. The EPA's top scientist has a long track record of putting sustainability to work. Living on Earth's Jeff Young has this profile.
YOUNG: The Environmental Protection Agency started in 1970, a time when smokestacks belched pollution and rivers occasionally caught fire. The problems were big and plain to see. EPA assistant administrator Paul Anastas says today's problems are big, but a bit murkier.
ANASTAS: When we start looking at complex problems like climate change, subtle problems such as endocrine disrupting chemicals - they are more complex, they are more subtle, and they're going to need a new approach, a new thinking. There's a great quote from Albert Einstein - he said, 'problems can't be solved at the same level of awareness that created them.'
And so when we look at our current state of the environment, one of the things that we're trying to do is say, "What's our new level of awareness?" That's what we're trying to do at the EPA today.
YOUNG: Anastas leads EPA's office of research and development. He's also the agency's science advisor - in effect its top scientist. EPA's science has long rested on narrowly focused specialists deciding how much harm people and nature can tolerate. Anastas wants his scientists to think more broadly about systems and sustainability.
ANASTAS: Systems thinking means that we're going to be asking questions about how not only can we make things less bad - how do we make things better, more sustainable, more healthful. Sustainability is our true north.
YOUNG: So how might this approach that you're talking about make you better able to address a challenge like climate change?
ANASTAS: Well climate change is a key issue. Climate is inextricably linked to energy, energy inextricably linked to water, water to agriculture, agriculture to health, and we could go on and on. If we start saying that the entirety of our approach to sustainability is simply to reduce our carbon footprint or to look at any one aspect, then we will not be getting the power and the potential of the synergies of looking from a systems approach.
YOUNG: Now, forgive me if this is an unfair stereotype, but it's my impression that the agency generally goes about its business by - well, you have an expert who does water, and you have experts who do air. How do you get those different experts to all think horizontally as well as up and down?
ANASTAS: Well, you ask precisely the right question. It's not just bringing together a couple scientists. It's bringing together physical scientists, life scientists, economists, communication specialists, social and behavioral scientists - the broadest spectrum of perspectives. So, we need to understand the underlying nature of our materials and our energy.
Are they depleting, are they degrading of our natural ecosystems, are they benign to humans and the environment or are they inherently hazardous, are they resilient, or are they vulnerable? These kinds of questions are not easy questions. They just happen to be the questions that we must ask and answer if we're going to address these challenges systemically.
YOUNG: Anastas says the EPA is beginning to work this way in its assessment of toxic chemicals. That's the area where Anastas is best known. Terry Collins directs the Institute for Green Science in the Department of Chemistry at Carnegie Mellon University. He first met Anastas in the early 90's during his first stint at EPA.
COLLINS: He was a young chief of toxics at EPA, in his late 20's I think, and he'd been looking at the way the EPA functioned, which is really saying, 'No, you can't do that' or trying to say, 'No, you can't do that.' And he felt that the organization would be so much better off if it was instead encouraging industry to develop products and processes that weren't toxic in the first place. And he coined the name 'green chemistry,' and I really regard him as the father of green chemistry.
YOUNG: Anastas wrote many of green chemistry's most influential books and won the prestigious Heinz award for his vision of chemistry that eliminates toxic risks. He was director of Yale's Center for Green Chemistry and Green Engineering when President Obama tapped him for a return to service at EPA. A talk with Anastas makes clear that the sustainability effort at EPA owes a great deal to green chemistry.
ANASTAS: Green chemistry is the molecular basis of sustainability - recognizing that all we have in this world is energy and matter, energy and material, and how you redesign the material basis of our society and our economy so that they are sustainable and benign.
YOUNG: This does not sound like a tinkering-around-the-edges kind of change. You're talking about real, kind of, fundamental change about the way you guys go about business here.
ANASTAS: Yeah, this is a seismic shift. While I know that the public often doesn't think about the words 'EPA' and 'innovation' in the same sentence, this is not your grandfather's EPA.
YOUNG: Anastas knows the change he's after won't come quickly or easily. EPA has asked the National Academy of Sciences for help. Nearly thirty years ago the Academy helped shape EPA science with a publication called the Red Book.
It was a how-to guide on putting the principles of risk management to work at EPA. Now the Academy is considering a similar guide on how to incorporate the principles of sustainability. The academy's report, expected this summer, is already being called the 'Green Book.' For Living on Earth, I'm Jeff Young.
No. 11-15383
Companion Appeal: No. 09-17411
(D.C. Nos. 2:91-cv-00768-JAM/JFM and 2:91-cv-01167-DFL/JFM)
CERTIFICATE OF SERVICE BY MAIL
On February 23, 2011, I mailed the foregoing document(s) by First-Class
Mail, postage prepaid to the following non-CM/ECF participants:
Larry Corcoran, Esquire, Assistant U.S. Attorney
DOJ - U.S. DEPARTMENT OF JUSTICE
Environmental Enforcement Section
P.O. Box 7611, Ben Franklin Station
Washington, DC 20044-7611
T. W. Arman
P. O. Box 992867
Redding, CA 96099
Ted Arman
Iron Mountain Mines, Inc.
P. O. Box 992867
Redding, CA 96099
Signature: s/ Marilyn T. Kilian
An odd judicial couple, conservative Jay Bybee (of torture memo fame ) and liberal Stephen Reinhardt, have combined to issue an even odder Clean Water Act standing decision. In Barnum Timber v. EPA they ruled, over the dissent of District Judge James Gwin, sitting by designation, that a landowner had standing to challenge EPA's approval of California's impaired waters list.
In general, I'm a fan of broad readings of standing to challenge agency action, because I think judicial review is essential to holding agencies accountable for carrying out their statutory obligations. But EPA shouldn't have to be accountable for injury that, even assuming it's real, is entirely caused by California.
The Clean Water Act requires that states periodically submit to EPA lists of waters that are “impaired” by pollution, meaning that they are not meeting the state's water quality standards. EPA reviews the lists and approves or disapproves them. The Clean Water Act also requires that states produce Total Maximum Daily Loads (TMDLs, essentially pollution budgets) for listed waters. But it does not require that states take any action to reduce non-point-source pollution to impaired waters. Those choices are left entirely to the states.
Here's what we know about Barnum Timber's injury from the opinion: The company owns land “in the Redwood Creek watershed.” In 2006, California submitted a list of impaired waters to EPA, including Redwood Creek, which is impaired by sediment and temperature. EPA approved the list. The listing was not new; Redwood Creek has been on the impaired list since 1992. At this late date, Barnum Timber decided to sue EPA, rather than California. It alleged that it had been injured by land use restrictions due to the listing and that its property values had decreased. It submitted affidavits from two professional foresters in support of the reduced value claim. The foresters asserted that the market value had fallen because of a public perception, correct or not, that onerous regulation would follow from the listing.
The trial judge dismissed the complaint for lack of standing, finding the claims of injury conclusory and not connected to the challenged action. The majority of the Ninth Circuit panel disagreed. Writing for himself and Judge Reinhardt, Judge Bybee concluded that Barnum Timber had met the Article III standards, showing injury in fact, causation, and redressability.
Injury in fact, according to Judge Bybee, was sufficiently established at this pleading stage by the foresters' declarations. Never mind that they had no property valuation expertise and cited no basis for their claims about public perception. Judge Gwin, dissenting, described this claimed injury as too “speculative and uncertain” to support standing, pointing out that Barnum had not identified any action that could plausibly be tied to property value reductions. This aspect of the majority decision may be wrong, but it's not particularly problematic. At the pleading stage, it's appropriate to accept plausible assertions. This one is at the outer boundaries of plausibility, but Barnum will be required to back its claims up in order to proceed.
More problematic are the majority's conclusions on causation and redressability, and the misunderstanding of the Clean Water Act they reveal (in almost his only reference to the actual terms of the Clean Water Act, Judge Bybee flubs it badly, confusing water quality standards with restrictions on discharges that violate those standards). With very little analysis, Judge Bybee endorses Barnum's claim that EPA is responsible for the alleged reduction in market value due to public perception that listing has regulatory consequences. Judge Bybee does not even ask whether the alleged public perception has any basis in reality. But surely that is relevant. EPA is not the legal cause of irrational drops in market value; public irrationality or misunderstanding is. In fact, as the dissent explains in some detail, listing as an impaired water does not, by itself, carry any regulatory consequence relevant to this land or Barnum's activities. California alone decides what timber harvest regulations to apply. The Clean Water Act imposes no limitations on timber harvest, whether or not the water is impaired. There is no conceivable scenario in which EPA will (or even could) send enforcement agents out or file suit to restrict Barnum's logging.
Beyond that, EPA didn't even decide that Redwood Creek was impaired; California did when it submitted its 1992 list. And EPA didn't decide what it would mean for Redwood Creek to be impaired; California did when it set water quality standards. Although EPA does review both state impaired water lists and state water quality standards, it does so from a floor rather than a ceiling perspective. As far as the Clean Water Act is concerned, states are free to over-regulate, but not to under-regulate. So EPA occasionally disapproves lists because they leave polluted waters out, but it would be quite odd for EPA to aggressively police whether states have included too many waters.
The redressability analysis is much the same. It's a slam dunk for the majority once it has incorrectly concluded that the impaired listing causes injury to go on to say that a court order invalidating the listing will fix the problem. Again Judge Bybee wastes no time looking at the Clean Water Act. But because the Act is a floor rather than a ceiling, whether or not Redwood Creek is impaired for Clean Water Act purposes is irrelevant for whether or not California chooses to protect it from careless logging practices. Judge Bybee says, correctly, that Barnum does not have to show that EPA is the only cause of its problem, or that the judgment it seeks will completely fix the problem.
When the Environmental Protection Agency (EPA) was launched in 1970 , its stated mission was to “conduct environmental research, provide assistance…[in] combating environmental pollution, and assist the Council on Environmental Quality in developing and recommending…new policies for environmental protection…to the President.” From these things, it's clear that President Richard Nixon's goal in creating the EPA was to put an agency in place that would fill a research and advisory role for both himself and future presidents. There was no indication that he intended an ideologically driven juggernaut that not only researched but actually took unto itself the power to mandate the most stringent of eco-centered, blatantly anti-capitalist environmental guidelines and regulations imaginable.
In fact, the EPA is so far from its original purposes that in just the past few years officials from that agency have addressed everything from regulating to livestock emissions (cow flatulence) to regulating America's water supply to putting their own Cap and Trade regulations in place. The latter truly reveals just how much power the EPA has taken unto itself, insofar as members of that agency are trying to put Cap and Trade in place although the American people and the U.S. Senate have already rejected it on face value. (Cap and Trade would be a boon to the already burgeoned EPA in that it would not only allow them to write guidelines and flood manufacturers with new regulations, but it would also put them in the catbird seat as the ones who would enforce and oversee the implementation of the regulations they write.)
The Environmental Protection Agency (EPA) has initiated a national rulemaking process to establish a new program to reduce stormwater discharges from new development and as well as redevelopment. During this process, the EPA is expected to evaluate green infrastructure design techniques that mimic natural water processes, including approaches that infiltrate and recharge, evapotranspire, and harvest and reuse precipitation. Landscape architects are currently working with many communities to employ green infrastructure design techniques that address stormwater management and other water quality issues. To show the EPA how green infrastructure works, submit case studies about successful stormwater management projects . Demonstrate to the EPA that green infrastructure is a highly-effective and cost-efficient approach to improving the quality of the water supply.
Specifically, EPA's new rulemaking process seeks to establish requirements to control stormwater discharges from new development and redevelopment; develop a single set of consistent stormwater requirements for all Municipal Separate Sanitary Sewer Systems (MS4s); require MS4s to address stormwater discharges in areas of existing development through retrofitting the sewer system or drainage area with improved stormwater control measures; and explore specific stormwater provisions to protect sensitive areas.
In 2006, EPA requested the National Research Council (NRC) to conduct a review of its stormwater program. In October 2008, NRC released its report Urban Stormwater Management in the United States (The National Academies Press, 2009), which found, among other things, that “the rapid conversion of land to urban and suburban areas has profoundly altered how water flows during and following storm events, putting higher volumes of water and more pollutants into the nation's rivers, lakes, and estuaries. These changes have degraded water quality and habitat in virtually every urban stream system.” The report recommends a number of actions, including conserving natural areas, reducing hard surface cover (e.g., roads, parking lots, impervious surfaces), and retrofitting urban areas with features that hold and treat stormwater.
Throughout 2010, the EPA held a number of listening sessions across the country to hear views, ideas and input from various stakeholders. The EPA has also issued “Information Collection Requests” and other data collection questionnaires to gather information and assess what revisions are needed to its stormwater requirements. After reviewing and analyzing the data, EPA intends to issue a draft rule in September of 2011 and a final stormwater rule sometime in 2012.
Opposition to the US Department of Energy's fiscal 2012 budget request grew louder Thursday, with Republicans on the House of Representatives committee that oversees DOE research spending Thursday blasting the Obama administration's fiscal 2012 budget request for wasting money at a time of economic turmoil.
"While I strongly support an 'all-of-the-above' approach to energy security, I'm concerned that this plan entails spending we can't afford and taxes and regulations that would raise the cost of energy and harm our economy," said Ralph Hall, a Texas Republican and the chairman of the House Science, Space and Technology Committee.
Energy Secretary Steven Chu defended his agency's fiscal 2012 budget request to the committee, which included steep hikes to the department's Office of Science, as well the Office of Energy Efficiency and Renewable Energy.
"To lead in the global clean-energy economy, we must mobilize American's innovation machine in order to bring technologies from the laboratory to the marketplace," Chu said. DOE "is on the front lines of this effort."
Despite cuts to most other federal agencies, President Barack Obama requested $29.5 billion for the agency in fiscal 2012, 12% above the $26.4 billion it received in fiscal 2010. President Barack Obama's federal budget request also included the elimination of billions of dollars in tax breaks for the petroleum industry.
But Democrats on the committee backed DOE's spending strategy.
"Our economic woes weren't caused by too much science," the senior Democrat on the committee, Representative Eddie Bernice Johnson, said. "At a time like this wee need to make the critical investments to bolster our research infrastructure and our future workforce, advancing our technological capabilities now, while sowing the seeds for the industries of the future.
Obama's budget increases for DOE is unlikely to be an easy sell in Congress, where Republicans and Democrats are currently battling over a stopgap spending measure for the rest of fiscal 2011 that would cut billions from DOE's current spending.
The cuts would mostly target the department's science, energy efficiency and renewable energy programs. In addition, Republicans on the House committee that oversees DOE's budget have said it is unlikely the department will see any increases.
Republicans swept into a majority in the House this year, but Democrats still contol the Senate.
While Democrats in the Senate Energy and Water Committee have supported the DOE request, Republicans on that panel have warned they would oppose increases, and senior Republicans on the Senate Budget Committee also have attacked DOE's strategy.
U.S. Senate Committee on Environment and Public Works
Subcommittee on Superfund, Toxics, and Environmental Health
“Assessing the Effectiveness of U.S. Chemical Safety Laws”
BACKGROUND: Senator Frank R. Lautenberg (D-NJ), Chairman of the Subcommittee on Superfund, Toxics, and Environmental Health, will hold a hearing to examine the effectiveness of the Toxic Substances Control Act (TSCA). GW School of Public Health and Health Services Dean Lynn Goldman will testify at the hearing.
WHEN: Thursday, February 2, 2011, 10 a.m.
LOCATION: EPW Hearing Room
406 Dirksen Senate Office Building
Washington, DC
WEBCAST: Webcast will be available at http://epw.senate.gov starting at 10:00 a.m.
WITNESSES: (Order subject to change)
Panel I:
• The Honorable Steve Owens, Assistant Administrator, Office of Chemical Safety and Pollution Prevention, Environmental Protection Agency
Panel II:
• Ms. Kelly M. Semrau, Senior Vice President for Global Corporate Affairs, Communication, and Sustainability, SC Johnson
• Mr. Steve Goldberg, Vice President and Associate General Counsel, BASF
• Ms. Frances Beinecke, President, Natural Resources Defense Council
• Mr. Cal Dooley, President, American Chemistry Council
• Dean Lynn Goldman, MD, MPH, Dean, George Washington University School of Public Health and Health Services
Just a reminder: If you would like us to save a seat for you, please let your Senate Press Gallery know, and drop Nathan McCray at Nathan_mccray@epw.senate.gov a note to let us know you're coming. Please note that media are required to display current Senate press credentials. In order to guarantee that a seat can be saved, please plan to arrive promptly, prior to the scheduled start time of the hearing. Television producers should contact the Senate Radio and TV Gallery in advance if possible to ensure that we're ready to accommodate you.
About The George Washington University Medical Center
The George Washington University Medical Center is an internationally recognized interdisciplinary academic health center that has consistently provided high-quality medical care in the Washington, D.C. metropolitan area since 1824. The Medical Center comprises the School of Medicine and Health Sciences, the 11th oldest medical school in the country; the School of Public Health and Health Services, the only such school in the nation's capital; GW School of Nursing; GW Hospital, and The GW Medical Faculty Associates. For more information on GWUMC, visit www.gwumc.edu .
EPA Administrator to Testify on Public Health and Drinking Water Issues
WASHINGTON – U.S. EPA Administrator Lisa P. Jackson will testify before the U.S. Senate Committee on Environment and Public Works tomorrow on EPA's role in addressing public health concerns related to drinking water issues. She will be joined by Linda Birnbaum, Ph.D., D.A.B.T., A.T.S., director of the National Institutes of Environmental Health Sciences.
Hearing details:
WHO: EPA Administrator Lisa P. Jackson
WHAT: Testifying before the Senate Committee on Environment and Public Works
§ 2348. Representation in proceeding; intervention
How Current is This? The Attorney General is responsible for and has control of the interests of the Government in all court proceedings under this chapter. The agency, and any party in interest in the proceeding before the agency whose interests will be affected if an order of the agency is or is not enjoined, set aside, or suspended, may appear as parties thereto of their own motion and as of right, and be represented by counsel in any proceeding to review the order. Communities, associations, corporations, firms, and individuals, whose interests are affected by the order of the agency, may intervene in any proceeding to review the order. The Attorney General may not dispose of or discontinue the proceeding to review over the objection of any party or intervenor, but any intervenor may prosecute, defend, or continue the proceeding unaffected by the action or inaction of the Attorney General.
How Current is This? The venue of a proceeding under this chapter is in the judicial circuit in which the petitioner resides or has its principal office, or in the United States Court of Appeals for the District of Columbia Circuit.
How Current is This? The several district courts have jurisdiction specifically to enforce, and to enjoin and restrain any person from violating any order issued under section 193 of title 7 .
How Current is This? (a) Complaint; hearing; intervention Whenever the Secretary has reason to believe that any packer or swine contractor has violated or is violating any provision of this subchapter, he shall cause a complaint in writing to be served upon the packer or swine contractor, stating his charges in that respect, and requiring the packer or swine contractor to attend and testify at a hearing at a time and place designated therein, at least thirty days after the service of such complaint; and at such time and place there shall be afforded the packer or swine contractor a reasonable opportunity to be informed as to the evidence introduced against him (including the right of cross-examination), and to be heard in person or by counsel and through witnesses, under such regulations as the Secretary may prescribe. Any person for good cause shown may on application be allowed by the Secretary to intervene in such proceeding, and appear in person or by counsel. At any time prior to the close of the hearing the Secretary may amend the complaint; but in case of any amendment adding new charges the hearing shall, on the request of the packer or swine contractor, be adjourned for a period not exceeding fifteen days. (b) Report and order; penalty If, after such hearing, the Secretary finds that the packer or swine contractor has violated or is violating any provisions of this subchapter covered by the charges, he shall make a report in writing in which he shall state his findings as to the facts, and shall issue and cause to be served on the packer or swine contractor an order requiring such packer or swine contractor to cease and desist from continuing such violation. The testimony taken at the hearing shall be reduced to writing and filed in the records of the Department of Agriculture. The Secretary may also assess a civil penalty of not more than $10,000 for each such violation. In determining the amount of the civil penalty to be assessed under this section, the Secretary shall consider the gravity of the offense, the size of the business involved, and the effect of the penalty on the person's ability to continue in business. If, after the lapse of the period allowed for appeal or after the affirmance of such penalty, the person against whom the civil penalty is assessed fails to pay such penalty, the Secretary may refer the matter to the Attorney General who may recover such penalty by an action in the appropriate district court of the United States. (c) Amendment of report or order Until the record in such hearing has been filed in a court of appeals of the United States, as provided in section 194 of this title, the Secretary at any time, upon such notice and in such manner as he deems proper, but only after reasonable opportunity to the packer or swine contractor to be heard, may amend or set aside the report or order, in whole or in part. (d) Service of process Complaints, orders, and other processes of the Secretary under this section may be served in the same manner as provided in section 45 of title 15 .
How Current is This? (a) This section applies, according to the provisions thereof, except to the extent that there is involved— (1) a military or foreign affairs function of the United States; or (2) a matter relating to agency management or personnel or to public property, loans, grants, benefits, or contracts. (b) General notice of proposed rule making shall be published in the Federal Register, unless persons subject thereto are named and either personally served or otherwise have actual notice thereof in accordance with law. The notice shall include— (1) a statement of the time, place, and nature of public rule making proceedings; (2) reference to the legal authority under which the rule is proposed; and (3) either the terms or substance of the proposed rule or a description of the subjects and issues involved. Except when notice or hearing is required by statute, this subsection does not apply— (A) to interpretative rules, general statements of policy, or rules of agency organization, procedure, or practice; or (B) when the agency for good cause finds (and incorporates the finding and a brief statement of reasons therefor in the rules issued) that notice and public procedure thereon are impracticable, unnecessary, or contrary to the public interest. (c) After notice required by this section, the agency shall give interested persons an opportunity to participate in the rule making through submission of written data, views, or arguments with or without opportunity for oral presentation. After consideration of the relevant matter presented, the agency shall incorporate in the rules adopted a concise general statement of their basis and purpose. When rules are required by statute to be made on the record after opportunity for an agency hearing, sections 556 and 557 of this title apply instead of this subsection. (d) The required publication or service of a substantive rule shall be made not less than 30 days before its effective date, except— (1) a substantive rule which grants or recognizes an exemption or relieves a restriction; (2) interpretative rules and statements of policy; or (3) as otherwise provided by the agency for good cause found and published with the rule. (e) Each agency shall give an interested person the right to petition for the issuance, amendment, or repeal of a rule.
§ 2347. Petitions to review; proceedings
How Current is This? (a) Unless determined on a motion to dismiss, petitions to review orders reviewable under this chapter are heard in the court of appeals on the record of the pleadings, evidence adduced, and proceedings before the agency, when the agency has held a hearing whether or not required to do so by law. (b) When the agency has not held a hearing before taking the action of which review is sought by the petition, the court of appeals shall determine whether a hearing is required by law. After that determination, the court shall— (1) remand the proceedings to the agency to hold a hearing, when a hearing is required by law; (2) pass on the issues presented, when a hearing is not required by law and it appears from the pleadings and affidavits filed by the parties that no genuine issue of material fact is presented; or (3) transfer the proceedings to a district court for the district in which the petitioner resides or has its principal office for a hearing and determination as if the proceedings were originally initiated in the district court, when a hearing is not required by law and a genuine issue of material fact is presented. The procedure in these cases in the district court is governed by the Federal Rules of Civil Procedure. (c) If a party to a proceeding to review applies to the court of appeals in which the proceeding is pending for leave to adduce additional evidence and shows to the satisfaction of the court that— (1) the additional evidence is material; and (2) there were reasonable grounds for failure to adduce the evidence before the agency; the court may order the additional evidence and any counterevidence the opposite party desires to offer to be taken by the agency. The agency may modify its findings of fact, or make new findings, by reason of the additional evidence so taken, and may modify or set aside its order, and shall file in the court the additional evidence, the modified findings or new findings, and the modified order or the order setting aside the original order.
Thursday, March 10, 2011 Good morning, The Delta Stewardship Council will meet during the next two days in a workshop format to continue developing the draft Delta Plan as required by the comprehensive water legislation passed in 2009. We have links to watch the meeting live as well as access to the presentations and other meeting material. Officials say it will take days and cost at least $100,000 to clean up King Harbor after the fish die-off began Monday night. Workers had scooped up 35 tons Wednesday, but 30 tons or more are thought to be on the harbor bottom. And it only takes about three hours to witness the overwhelming health and environmental hazards that have plagued the eastern Coachella Valley for more than 30 years. Wednesday, officials from environmental regulatory agencies across the state and local civic leaders took a bus tour of the east valley. Some other stories making news across the state:
WQA's opening session reinforces promising future
Farmers take water protest to Concord
Protesters call for review of water permit process
Companies to pay $4M for water cleanup
Saving the environment one fishing net at a time
Nutrients take center stage
New regulations are compelling the wastewater industry to come up with newer,
more cost-effective ways of dealing with nutrient pollution and improving water quality
BC Water News
January 6, 2011
The EPA's latest water quality initiatives, most notably the proposed numeric nutrient criteria, are generating increased attention on nutrient management practices that are both “inside” and “outside the fence.” Nutrient removal systems — from conventional biological nutrient removal treatment to enhanced nutrient reduction — and watershed-based strategies for improving water quality are not new topics. What's new is the increased interest water managers have in finding more cost-effective and environmentally friendly solutions to meeting more stringent nutrient limits.
Clearly, many water managers are concerned about the implications of EPA's new policy.
In Florida, officials say the latest regulations are too strict, will cost too much, hurt the state's economy and are scientifically unsound. "We see it as a huge step in the wrong direction," Paul Steinbrecher, director of environmental permitting for the JEA in Jacksonville, told BC Water News .
The new environmental rules will force the Sacramento Regional County Sanitation District to overhaul its wastewater systems. The district estimates it will cost upwards of $2 billion, and does not think the new policy is a "reasonable balance."
Many who commented on the Chesapeake Bay cleanup plan say it is a "noble cause," but say the EPA's 2025 completion goal is too rushed, especially for expensive upgrades such as stormwater control.
The Jan. 9–12 nutrient recovery and management conference in Miami, sponsored by the Water Environment Federation and the International Water Association, will examine research, design, operations, and watershed and river basin management issues, as well as provide a forum to discuss policy approaches to nutrient control.
Take a look the technical program to see what educational events will be offered. You also can join the Nutrients group on LinkedIn to participate in nutrient discussions with colleagues and others, and you can keep up with the conference on Twitter by following and using the hashtag #NR2011.
Summary of EPA regulations
Nitrogen and phosphorus pollution (or nutrient pollution) is one of the top three causes of impairment of the nation's waters, according to the federal Environmental Protection Agency. Excess nitrogen and phosphorus lead to significant water quality problems, including harmful algal blooms, hypoxia and declines in wildlife and wildlife habitat. Collectively, 49 states have listed more than 10,000 nutrient and nutrient-related water quality impairments.
The EPA has encouraged the states to adopt numeric nutrient WQS for both casual (total nitrogen and total phosphorus) and response (chlorophyll-a and clarity) parameters for all of their water body types (lakes and reservoirs, rivers and streams, estuaries and wetlands). During the past 10 years, states have adopted numeric nutrient WQS for a range of waters according to their own priorities and needs.
Now, the EPA has laid out a roadmap with a National Nutrient Policy . So, what are the effluent guidelines? How often are they updated? How are pretreatment standards for indirect dischargers implemented? The EPA has some answers for these and other frequently asked questions .
The only remedial action found (CA-10) to be fully protective of human health and the environment is the complete removal of the source. (i.e. finish the mining.) EPA 1985
Nothing Comes From Nothing
expanding private sector partnerships.
(Rules of the road? Stay out of ditch, AVOID IMPACT!)
a diriment impediment
Vetitum tempus clausum,
conditio servilis,
vis et metus
EPA Administrator to Participate in Martin Luther King, Jr. Day of Service Events
WASHINGTON – On Monday, Jan. 17, U.S. Environmental Protection Agency Administrator Lisa P. Jackson will commemorate Dr. Martin Luther King, Jr. Day during two events. First, she will join U.S. Department of Education Secretary Arne Duncan, Reverend Al Sharpton, and a number of elected officials, at a breakfast hosted by the National Action Network, where she will give remarks. The breakfast is titled “Concrete Progress toward King's Dream” and will focus on the advancements made toward equality in the U.S.
Later, Jackson will speak to participants during Kid Power Inc.'s community service event at Tubman Elementary and tour the school's citizen farm. The event will highlight the importance of access to healthy foods in urban environments and the roles of youth and schools in environmental protection and education.
Both events are open to the press.
Monday, January 17, 2011
9:15 a.m. Administrator Jackson Joins U.S. Department of Education Secretary Arne
Duncan, Reverend Al Sharpton, and others at National Action Network Breakfast
The Madison Hotel (Dolly Madison Ballroom) 1177 15th St. NW Washington, DC
*Note: Reporters wishing to attend this event must RSVP to press@epa.gov
11:00 a.m. Administrator Jackson Kicks Off Kid Power Inc.'s community service event
Tubman Elementary School
3101 13th St. NW
Washington, DC
*Note: Reporters wishing to attend this event must RSVP to press@epa.gov
R016
Note: If a link above doesn't work, please copy and paste the URL into a browser.
U.S. EPA's top water official, Pete Silva, announced his resignation today.
Silva, whom President Obama appointed the assistant administrator for water in July 2009, plans to return to his home and family in California, EPA Administrator Lisa Jackson said in a memo to staff.
The announcement of Silva's departure comes a day after his office made a controversial decision to revoke the permit of one of the largest mountaintop mines ever proposed in Appalachia (Greenwire, Jan. 13).
The decision on the West Virginia mine came as EPA's water office worked on regulations of ash from coal-burning plants and pollution limits for stormwater discharges. The office is also working on clarifying which waterways and wetlands it regulates under the Clean Water Act.
"During his tenure, Pete has led a wide range of important actions to help protect the water we drink and safeguard the health of millions of Americans," Jackson wrote. "We have greatly valued his service, and we offer him our deepest thanks as he prepares to embrace new opportunities. We are beginning the search for his successor."
Nancy Stoner, who came from the Natural Resources Defense Council to become the deputy assistant administrator for the water office, will serve as acting assistant administrator in Silva's absence. Silva leaves Feb. 12.
"Nancy is exceptionally talented and knowledgeable, and I am confident that she will continue to contribute significantly to the office's excellent work in this role," Jackson wrote.
Jackson also announced the appointment of Bicky Corman as deputy associate administrator for the Office of Policy and Joel Beauvais as senior adviser in the Office of General Counsel.
Republican Sen. Roy Blunt blasted the Environmental Protection Agency for a lawsuit filed earlier in the week against Ameren Missouri for alleged Clean Air Act violations at the utility's Rush Island power plant.
In a letter sent Friday to EPA Adminsitrator Lisa Jackson, and obtained by the Post-Dispatch , Blunt said Ameren is being punished for making improvements at the Rush Island power plant that were "clearly aimed at reducing emissions."
"It would not be difficult to draw the conclusion that this recent lawsuit is another backdoor method used by the EPA to broadly penalize the use of coal in the United States," Blunt wrote. "To the extent that the EPA's efforts to deter the use of coal through executive fiat are furthered through the lawsuit against Ameren and its modification program at the Rush Island plant, I intend to closely examine the motives behind this legal action."
This is in follow up to Mr. Arman's January 29, 2008 letter of introduction. As Mr. Arman has requested in his letter, EPA will transmit copies of all future "correspondence concerning the high density sludge or the acid mine drainage or matters relater thereto" to you as well as Mr. Arman.
Mr. Arman provided the following address and contact information:
Mr. John Hutchens
P.O. Box 182
Canyon , CA 94516
Phone: 925-878-9167
If this information is correct, there is no need to reply to this email.
" Eritis insuperabiles, si fueritis inseparabiles. Explosum est illud diverbium: Divide, & impera, cum radix & vertex imperii in obedientium consensus rata sunt. " [You would be insuperable if you were inseparable. This proverb, Divide and rule, has been rejected, since the root and the summit of authority are confirmed by the consent of the subjects.] Lord Coke
In a certain sense, the Tenth Amendment—the last of the 10 amendments that make up the Bill of Rights—is but a truism that adds nothing to the original Constitution. Since the federal government only possesses those powers which are delegated to it (Article I, Section 1), this amendment merely restates that all powers not delegated are in fact reserved to the States or to the sovereign people. In this sense, the Tenth Amendment concisely articulates the very idea and structure of a government of limited powers. The Tenth Amendment reinforces the federal system created by the Constitution and acts as a bulwark against federal intrusion on state authority and individual liberty. While the Supreme Court has countenanced a far-reaching expansion of federal power since the New Deal, Congress, as a co-equal branch of government, is not bound by these precedents and should uphold the concept of federalism embodied in this amendment. This essay is adapted from The Heritage Guide to the Constitution for a new series providing constitutional guidance for lawmakers.
“The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”
Getting a handle on the legislative outlook for 2011 requires first a look to the recent past. After the wild 2010 mid-term election, the dust is still settling in Washington, DC. In November, voters gave the Republicans a majority in the U.S. House of Representatives and allowed the Democrats to hold onto the majority by a slim margin in the Senate. In the House, Republicans won more than 60 seats.
As in past elections, being an incumbent was not much of a safety net. Three senior Democratic Committee Chairmen — Rep. John M. Spratt, Jr. (SC), the chairman of the House Budget Committee, Rep. Ike Skelton (MO), chairman of the House Armed Services Committee, and Rep. James L. Oberstar, chairman of the House Transportation and Infrastructure Committee, were all defeated.
In the Senate, Blanche Lincoln (D-AR), Chairman of the Senate Committee on Agriculture, Nutrition and Forestry was defeated by Rep. John Boozman (R-AR). Republicans also gained seats in Florida, Illinois, Pennsylvania, Kentucky, Wisconsin, North Dakota and Alaska.
An 11th-hour effort was underway in the “lame duck” session of Congress to include S.1816 The Chesapeake Clean Water and Ecosystem Restoration Act, and in the potential Lands, Waters and Wildlife omnibus legislation. The fertilizer industry and the agriculture community should be aware that S.1816 would pose significant negative changes to the Clean Water Act.
Advocates of the bill are claiming that the tough measures found in S.1816 are justified based upon the results of the draft USDA “Assessment of the Effects of Conservation Practices on Cultivated Cropland in the Chesapeake Bay Region” showing the contributions of agriculture to the Bay. In order to address false claims such as these, The Fertilizer Institute ( TFI ), the Agricultural Retailers Association ( ARA ) and other members of the Agricultural Nutrient Policy Council ( ANPC ) recently asked LimnoTech , one of the nation's leading water sciences and environmental engineering consulting firms, to compare the assumptions and numbers found in the USDA study and EPA 's Total Maximum Daily Load (TMDL). The comparison revealed astounding differences between USDA and EPA data concerning pollutant loadings for the Chesapeake Bay. The technical conclusions reached by LimnoTech about the implications of the very different data used by USDA and EPA call into serious question the validity of EPA's scientific conclusions regarding the role of agriculture as a source of pollutants and the need for the overly aggressive measures now called for by EPA.
Water, Water Everywhere
Another water-related issue is coming from Washington — but this time from EPA. Partially in response to an environmental litigant's lawsuit, EPA has taken over the development of numeric nutrient criteria (NNC) for the state of Florida. The first of these were issued in November. Wisconsin, responding to pressures from EPA and the environmental community, is now adopting NNC for phosphorous. Kansas may very well be the next battleground for this issue and TFI currently estimates that approximately 44 states have NNC under development in one form or another. Most states' NNC work is in a holding pattern as states are all watching to see what EPA does with the NNC for Florida, under the reasonable assumption that the approaches/levels used there will be what EPA will accept from other states.
What are NNC and why do they matter? Nutrient criteria are part of the internal, technical workings of the Clean Water Act (CWA), within the general grouping of the CWA technical program called “Water Quality Standards” (WQS). The WQS program and the water quality criteria within it are the “guts” of Clean Water Act implementation.
Regulators use water quality criteria as one of the direct guides to allowable pollutant quantities in a National Pollutant Discharge Elimination System (NPDES), permit holder's discharge and to determine what is considered acceptable in discharges from non-point sources. Additionally, water quality criteria are used by regulators to judge if a water body contains too much of a specified pollutant and if it is unable to meet its “designated use,” thereby classifying it is as “impaired” under the CWA.
Once a water body is identified as “impaired” under the CWA, the TMDL program is triggered with its cascading requirements and issues, as is now unfolding in the Chesapeake Bay.
Nutrient criteria within the WQS can be classified as either narrative or numeric. An example of a narrative nutrient criteria might be “No phosphorous will be allowed in this stream at levels that will prevent desired levels of aquatic flora and fauna.”
Fighting Back
In early December, TFI filed a legal challenge to EPA's rule. The lawsuit was filed in the U.S. District Court for the Northern District of Florida Pensacola Division. In the complaint, the lawsuit contends that:
¦ EPA's Final Rule is unlawful and should be vacated because it establishes water quality criteria that ignore causation, regulate water bodies that are achieving their designated use and restrict nutrients that do not cause impairment.
¦ By using simple and overly broad statistical principles EPA's rule will classify a certain percentage of water bodies as impaired when they in fact are not.
¦ EPA's new criteria usurp Florida's statutory authority to develop standards and are fundamentally in conflict with Florida's existing efforts to implement narrative water quality standard for nutrients.
¦ EPA unlawfully ignored the requirements that water quality criteria be based on true biological impairment and instead established numeric criteria for nitrogen and phosphorus in water bodies where they would not actually cause such an imbalance.
¦ EPA's shortcut numeric criteria are not based on sound scientific rationale or scientifically defensible methods because they would unlawfully restrict nitrogen and phosphorus in lakes, streams and springs that are not impaired. In other instances, where the lakes, streams or springs are impaired, EPA's standards will unlawfully regulate nutrients that are not causing the impairment.
¦ EPA's regulation wrongly assumes that nitrogen and phosphorus levels above EPA's numeric criteria will cause algal growth and thus impairment.
¦ EPA has ignored its own Science Advisory Board and set nitrogen standards when in fact nitrogen is not limiting (and thus not responsible) for impairment in fresh water bodies.
A New Climate For Climate Change
The significant change in the makeup of the new Congress most likely mean that “cap-and-trade” style climate legislation is off the table — at least in the short term. As is the case with water issues, we are faced with a very active (and activist) EPA that is moving forward with several rules to control greenhouse gas emissions. In total, at least six separate rule-makings that could impact the fertilizer industry. While several of these rules are the subject of legal challenges from other potentially regulated industries, EPA has made it clear that it believes it has the authority to move forward and is doing so.
About the author:
Mathers is director, public affairs for The Fertilizer Institute, Washington, DC.
Iron Mountain Mine congratulates Karen Ross on her appointment by Governor Brown as the next Secretary of the California Department of Food and Agriculture (CDFA). Her appointment comes at a critical time in terms of preparing to support California agriculture in addressing a changing climate. At CalCAN, we are looking forward to working with the new Secretary on this issue.
Karen Ross has a long tenure of promoting the economic and environmental sustainability of California agriculture. Ms. Ross served for many years as the President of the California Association of Winegrape Growers and a member of the State Food and Agriculture Board. She currently serves at the Chief of Staff for USDA Secretary Tom Vilsack.
According to Rich Rominger, “Governor Brown selected the best person for California Department of Food and Agriculture. Karen Ross is the leader we need to address the critical issues of agriculture, water, clean energy development and climate change.” Rominger was CDFA Secretary under then-Governor Brown from 1977 to 1982 and Deputy Secretary of USDA from 1993 to 2001.
California agriculture is $35 billion industry, covering a quarter of the state's land mass and providing nearly half of the country's fresh fruits, nuts and vegetables. Climate change scenarios suggest that in the coming years the industry will struggle with climate-related impacts such as water scarcity, extreme weather events, more intense and frequent floods and droughts, and rising temperatures. Resources, such as research, technical assistance for growers and financial incentives for on-farm conservation practices, are needed to support California agriculture in coping with a changing climate.
California agriculture is $35 billion industry, covering a quarter of the state's land mass and providing nearly half of the country's fresh fruits, nuts and vegetables.
6. A certified copy of a judgment or an abstract thereof, recorded April 15, 1994 as Book 3157,
Page 517 of Official Records.
Court: Superior Court of the State of California, County of Shasta
Case No.: 104079
Debtor: Iron Mountain Mines, Inc., a California corporation, and Does 1-
20
Creditor: People of the State of California, ex rel. California Regional
Water Quality Control Board, Central Valley Region
Amount: $250,000.00, and any other amounts due thereunder.
The lien of the judgment has been extended as evidenced by the document recorded
March 31, 2004 as Instrument No. 2004-0017790 of Official Records.
7. The terms and provisions contained in the document entitled Notice of Lien Under
Comprehensive Environmental Response, Compensation & Liability Act of 1980, as Amended, 42
U.S.C. 9607(1) recorded May 11, 2000 as Instrument No. 2000-0016716 of Official Records.
8. A certified copy of a judgment or an abstract thereof, recorded August 08, 2000 as Instrument
No. 2000-0028302 of Official Records.
Court: Sacramento Superior Court
Case No.: 99AM06040
Debtor: Iron Mountain Mines, Inc., a California corporation
Creditor: RMC Lonestar, a California general partnership
Amount: $10,915.42, and any other amounts due thereunder.
9. The terms and provisions contained in the document entitled Memorandum of Joint Venture
Development and Operating Agreement recorded January 28, 2009 as Instrument No. 2009-
0002640 of Official Records.
10. Rights of parties in possession.
11. Additional matters, if any, following review by the Company’s Waterways and Boundaries
Underwriters.
F. WITH RESPECT TO A TRUST:
a. A certification pursuant to Section 18500.5 of the California Probate Code in a
form satisfactory to the Company.
b. Copies of those excerpts from the original trust documents and amendments
thereto which designate the trustee and confer upon the trustee the power to act
in the pending transaction.
c. Other requirements which the Company may impose following its review of the
material require herein and other information which the Company may require.
G. WITH RESPECT TO INDIVIDUALS:
a. A statement of information.
REMISSION
The year 2010 marked the 160th anniversary of Shasta County, the 30 th anniversary of Superfund, and the 18 th anniversary of the National Law Journal's work that found inequitable enforcement of environmental laws by race and income.
Expected outcomes:
Rigorous and thorough analysis and discussion of environmental justice issues from diverse points of view.
Understanding of EJ failure and how to abolish it..
Commitment to EJ from agencies, business and industry, academic institutions and other entities.
Land Use Planning; Public Participation in Decision Making; EJ in Indian Country; EJ in Mining Territory
Policies on Key Issues (and measures taken to address them), such as but not limited to:
Meaningful involvement of communities: Conference is committed to meaningful involvement of affected community representatives. All committees are open to their participation and the conference will actively reach out to affected communities. This outreach effort includes regular conference calls with affected communities seeking their participation on various work committees, views, advice and recommendations for the conference.
Corporate Participation and fundraising: Conference is committed to constructively engaging members of the corporate sector for financial support and active participation in the conference discussions. All committees are open to corporate participation and the conference will actively reach out to business and industry for participation on various work committees, views, advice and recommendations for the conference.
Transparency : The planning committee will be as transparent with respect to groups contributing to the conference. Conference contributors will be named in conference materials and included on the conference website. No financial contribution will determine the discussion or subject matters at the conference.
BY JAMES M. LEMUNYON - THE WALL STREET JOURNAL - OPINION
The U.S. Congress is in a state of serious disrepair and cannot fix itself. It has reached this point over the course of many years—in fact over many decades. Regardless of the party in power, Congress has demonstrated a growing inability to effectively address the major issues of our time, including soaring federal debt and the extension of federal authority to states and localities.
The only effective remedy is constitutional reform to rein in congressional excesses and abuses. But Congress can't be expected to propose amendments to fix itself, as it has an inherent conflict of interest.
Under the U.S. Constitution, Congress has the power to make criminal only four types of conduct: treason, counterfeiting, piracies and felonies on the high seas, and offenses against the laws of nations.
The U.S. Declaration of Independence states that "when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty , to throw off such Government"
“I believe that banking institutions are more dangerous to our liberties than standing armies. Already they have raised up a moneyed aristocracy that has set the government at defiance. The issuing power should be taken from the banks and restored to the people, to whom it properly belongs.” – Thomas Jefferson
“WHEN ALL GOVERNMENT, DOMESTIC AND FOREIGN, IN LITTLE AS IN GREAT THINGS, SHALL BE DRAWN TO WASHINGTON AS THE CENTER OF POWER, IT WILL RENDER POWERLESS THE CHECKS PROVIDED OF ONE GOVERNMENT ON ANOTHER AND WILL BECOME AS VENAL AND OPPRESSIVE AS THE GOVERNMENT FROM WHICH WE SEPARATED.” – Thomas Jefferson
Congress has the right to make any law that is ‘necessary and proper' for the execution of its enumerated powers (Art. I, Sec. 8, Cl. 18).
CERCLA is a coercive intolerable act, "impolitic, unjust, and cruel,"
We are entitled to life, liberty, and property, and we have never ceded to any sovereign power whatever, a right to dispose of either without our consent.
When in the Course of human events, it becomes necessary for one people to dissolve the political bands which have connected them with another, and to assume among the powers of the earth, the separate and equal station to which the Laws of Nature and of Nature's God entitle them, a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation.
You have obstructed the Administration of Justice, by refusing your Assent to the constitutional limitations of Federal Judiciary Powers.
You have erected a multitude of New Offices, and sent hither swarms of Officers to harrass our People, and eat out our substance.
You have kept among us, in times of peace, a Standing Army without our Consent.
You have combined with others to subject us to a jurisdiction foreign to our constitution, and unacknowledged by our laws; giving your Assent to their Acts of pretended Legislation:
You have abdicated Government here, by declaring us out of your Protection and waging War against us.
For depriving us of the benefits of Trial by Jury:
You have plundered our Trusts, ravaged our Lands, burnt our Township, and destroyed the lives of our people.
In every stage of these Oppressions we have Petitioned for Redress in the most humble terms: Our repeated Petitions have been answered only by repeated injury. A Judge, whose character is thus marked by every act which may define a Tyrant, is unfit to be the Judge of a free people.
The sole excuse for 30 years of piracy, extortion, despotism, tyranny, and oppression against Mr. T.W. Arman is the cost of dilution water from Shasta dam during droughts for the protection of the juvenile fish hatched and propogated in the artificial (i.e. manmade) Keswick lake.
Rather than allow the naturally occuring minerals to dissolve in stormwater runoff as it has for hundreds of thousands of years, the EPA chose to make an acutely toxic sludge and dispose it in a shoddily constructed disposal pit on top of the old brick flat open pit mine at Iron Mountain. The disposal pit has failed and the drainage is no longer recovered for treatment. It is unknown exactly where it drains to now.
Iron Mountain has accumulated over a billion pounds of this sludge. Despite constant efforts to initiate a recycling and reclamation plan, the EPA has defied every effort to implement an appropriate common sense approach to a remedy for this problem.
Thomas A. Bloomfield - EPA Region 9
As the assistant regional counsel for Region 9 of the U.S. Environmental Protection Agency (EPA), Thomas A. Bloomfield brokered a $1 billion settlement with the former owner of Iron Mountain Mine near Redding. The settlement is one of the largest in the history of both federal and California environmental protection programs and was made possible by an innovative insurance-based financing program.
In 1983 the EPA placed Iron Mountain on its Superfund list of the nation's most dangerous toxic sites. Litigation was brought by state and federal officials against the owner of the mine, formerly Rhone-Poulenc, now Aventis CropSciences USA, a chemical, pharmaceutical, and biotechnology company, for past and future cleanup costs.
The final settlement negotiated by Bloomfield sets up a finance program to fund a treatment plant that will process the contaminated runoff. The key piece of the deal is an insurance policy that will be purchased by the former owner of the mine and will pay out an estimated $200 million over 30 years for cleanup costs and will cover an additional $100 million if necessary, along with additional payouts to the EPA and state and federal trustee agencies. In 2030 the policy will pay a lump sum of $514 million to the state and federal government to continue the cleanup.
Michael Hingerty, deputy branch chief for Region 9, worked on the case from 1987 until turning it over to Bloomfield in 1996. Tim Gallagher of Gallagher & Gallagher in Los Angeles also contributed significantly to the settlement.
Section 2 of the Act forbade monopoly . In Section 2 cases, the court has, again on its own initiative, drawn a distinction between coercive and innocent monopoly. The act is not meant to punish businesses that come to dominate their market passively or on their own merit, only those that intentionally dominate the market through misconduct, which generally consists of conspiratorial conduct of the kind forbidden by Section 1 of the Sherman Act, or Section 3 of the Clayton Act.
U.S. regulators have postponed a vote on new governance rules for derivatives clearinghouses and trading platforms, The Wall Street Journal reports. The rules were scheduled for a vote by the Commodities Futures Trading Commission on January 13.
The CFTC had released a proposal in October to curb the ownership stakes that banks and other swaps dealers can hold in clearinghouses, exchanges and swap-execution facilities. CFTC Chairman Gary Gensler had pulled a vote on draft rules to restrict speculation in commodities markets on December 16.
(Adds CFTC vote in fifth paragraph, statement from CFTC's Chilton in 11th paragraph, Dunn in 18th, Sommers in 20th.)
Jan. 13 (Bloomberg) -- Curbing speculation in raw materials including oil, gold and wheat has touched off a battle at the top U.S. commodities regulator with a legal deadline to rein in traders just four days away.
The Commodity Futures Trading Commission is divided over how to meet the requirements of the Dodd-Frank financial overhaul that became law last year. A lack of data on the $583 trillion global over-the-counter derivatives market has complicated the agency's efforts to limit speculation this month, as directed by the law.
Commissioner Scott O'Malia said today fellow commissioners are attempting a “Trojan horse” move that would impose limits without proper debate. Chairman Gary Gensler last month directed the agency's staff to gather data from firms that exceed certain thresholds, while Commissioner Bart Chilton advocated “position points” beyond which the agency might push traders to reduce or freeze their holdings.
“Much of the pressure to immediately implement position limits/'position points' comes from those who advocate the need for price controls,” O'Malia, a Republican, said in a statement. “It is not the role of the commission to control prices.”
The CFTC today voted 4-1 to propose rules that would limit the number of contracts a single firm can hold. The public has 60 days to critique the caps. O'Malia said he's “very skeptical” about the proposal, though he voted to put it out for comment. No date is for a final vote on the rules.
Legal Directive
The Dodd-Frank Act gave the CFTC until Jan. 17 to curb speculation in the energy and metals markets and until April in agricultural commodities. Last month, Gensler, a Democrat, said the commission wouldn't meet the deadline because it doesn't yet have sufficient data. The commission delayed a vote on the proposal at a Dec. 16 public meeting.
Today he responded to O'Malia's statement, disputing the notion that he and Chilton, also a Democrat, were trying to regulate prices.
“The CFTC does not set or regulate prices,” Gensler said in a statement. “Rather, the commission is directed to ensure that commodity markets are fair and orderly to protect the American public.”
More Data
He said gathering additional information will help the commission understand the role of large traders in the market and how proposed limits may affect them. “These levels, or points, are the positions at which CFTC staff will brief the commission under its existing authority,” he said.
The plan under discussion would limit traders to 25 percent of deliverable supply in the contract nearest to expiration, followed by an all-month ceiling of 10 percent of open interest up to the first 25,000 contracts and 2.5 percent thereafter.
Chilton said the commission “should have proposed much earlier in a way that would have implemented the provision as Congress intended. That's not happening.”
Regulators and lawmakers are attempting to rein in commodity speculation amid concern that investors contributed to oil reaching the record high of $147.27 a barrel in 2008. The CFTC received hundreds of public comments on position limits and held at least 75 meetings on the subject since July, according to its website.
“I do not believe that the absence of position limits has had any impact on prices in the past,” O'Malia said. “And I do not believe that setting them now will be effective in preventing a barrel of oil from going over $100 per barrel.”
CFTC Oversight
The financial overhaul expanded the CFTC's authority to the over-the-counter derivatives market for the first time since swaps were introduced 30 years ago. Before the law passed, traders could buy futures on regulated exchanges or they could privately negotiate for unregulated, look-alike contracts.
The commission in October proposed a rule to gather information on the previously unregulated swaps. The 60-day public comment period closed in December, and the agency hasn't approved the rule.
Without that data, the agency can't impose or enforce aggregate position limits across exchange-traded futures and economically equivalent derivatives, Gensler said last month.
The CFTC limits would impose a uniform set of rules across exchanges and the over-the-counter market, replacing a patchwork of inconsistent restrictions for different venues and commodities. Trading in some agricultural contracts is already capped, while there are few controls on speculation in energy and precious metals.
Dunn Skepticism
“To date, CFTC staff has been unable to find any reliable economic analysis to support either the contention that excessive speculation is affecting the markets we regulate, or that position limits will prevent excessive speculation,” said Commissioner Michael Dunn.
At the Dec. 16 meeting, Gensler directed commission staff to gather information on the derivatives positions of any trader that exceeded 10 percent of open interest in exchange-traded futures or similarly regulated contracts up to 25,000 contracts, and 2.5 percent thereafter.
Commissioner Jill Sommers, who cast the only vote against publishing the proposal, said the commission should wait for a complete analysis of the swaps market before moving ahead on limits.
Chilton Plan
Chilton's proposal is similar to accountability levels now policed by regulated exchanges like the New York Mercantile Exchange and the Chicago Board of Trade. Traders that exceed those levels may come under increased scrutiny, and be asked to freeze or reduce their bets. The exchanges also impose restrictions in the last few days before a contract expires.
O'Malia said those actions will create uncertainty about limits, chase traders off of the transparent exchanges and open the CFTC up to legal challenge because the public wasn't given proper notice or opportunity to comment.
The financial overhaul, named for its primary authors, Democratic former Senator Christopher Dodd of Connecticut and Congressman Barney Frank of Massachusetts, aims to stem systemic risk by requiring most interest-rate, credit-default and other swaps be processed by clearinghouses after being traded on exchanges or swap-execution facilities.
--With assistance from Silla Brush in Washington. Editors: Dan Stets, Charlotte Porter
To contact the reporter on this story: Asjylyn Loder in New York at aloder@bloomberg.net.
To contact the editor responsible for this story: Dan Stets at dstets@bloomberg.net.
Environmentalists, civil rights advocates and even federal auditors say the US government is ignoring its duty to protect low-income people and people of color from harmful pollution in their communities.
Last month, the Environmental Protection Agency's Office of the Inspector General found the Agency does not know if its policies and programs are negatively affecting poor people because it has not conducted proper "environmental justice" reviews.
"The term of ‘environmental justice' is kind of a cleaned-up term," said Felicia Eaves, campaign organizer with the grassroots group Women's Voices for the Earth. "[The term] actually started out as ‘environmental racism.'"
WASHINGTON DC (January 7)–A national trail-based recreation group commends legislation that was introduced today to clarify the implementation and enforcement of Travel Management in California. This bill was introduced by Congressman Wally Herger and is cosponsored by Congressmen Tom McClintock, Kevin McCarthy, and Dan Lungren.
This bill will restrict funds for Forest Service implementation of Subpart B of its Travel Management Rule (TMR) until the agency has performed the project-level review under the Rule. The bill also addresses the very contentious issue of the Forest Service banning OHV use on dirt-covered and roughly graded logging roads in rural sections of the state.
Don Amador, Western Representative for the BlueRibbon Coalition, states, “I feel this legislation has been proposed in direct response to complaints from his constituents who have been locked out of federal timber lands by the misapplication of the Travel Management Rule by government agents.”
“This is the type of legislation that outdoor voters asked for in the last election. Congress has a duty to defend the public's right to access federal lands in a responsible manner,” Amador concludes.
Link to Congressman Herger TMR Bill: http://www.sharetrails.org/uploads/Herger_TMR_Bill_jan.7.11.pdf
(ATLANTA - Jan. 13, 2011) The U.S. Environmental Protection Agency (EPA) issued Administrative Orders (AOs) against seven entities in North Carolina, Tennessee, Kentucky and South Carolina during the last quarter of 2010 for violations of the Clean Water Act (CWA).
“Controlling water pollution sources is key to protecting waterways across the Southeast and the health of all people who depend on them,” said Gwendolyn Keyes Fleming, EPA Region 4 Regional Administrator.
Three entities were cited for alleged stormwater-related violations of the CWA. Polluted stormwater runoff is a leading cause of impairment to the nearly 40 percent of surveyed U.S. water bodies which do not meet water quality standards. Over land or via storm sewer systems, polluted runoff is discharged, often untreated, directly into local water bodies. The entities cited and their associated violations include:
. YDV, Inc., for violations at the Compass Pointe Phases 2, 3 and 11 sites in Leland, N.C.;
. Marion Retail Investments, LLC, for violations at its Grandview Station construction site in Marion, N.C.;
. Shelby County Schools, for violations at the Shelby County Administration Building in Arlington, Tenn.
EPA issued AOs requiring the violators to conduct a variety of remediation activities, including revising and implementing their Construction Pollution Prevention Plans and Erosion and Sedimentation Control Plans; installing and maintaining Best Management Practices; conducting adequate self-inspections; ceasing sediment discharges; and addressing areas where sediment had been discharged.
The City of Oak Ridge, Tenn., was cited for unauthorized discharges of sewage from the wastewater collection and transmission system. Sanitary sewer overflows (SSOs) like these pose a significant threat to public health and the environment, and remain a leading cause of water quality impairment. SSOs contain raw sewage and have high concentrations of bacteria from fecal contamination, as well as disease-causing pathogens and viruses. Besides being illegal under the CWA, the SSOs also constitute a failure to comply with the requirements of the utility's National Pollutant Discharge Elimination System permit. EPA issued an AO requiring the utility to address wet weather capacity-related issues in the sewer system. In addition, the order requires the development of management, operation and maintenance programs.
Licking River Resources, Inc. and Clintwood Elkhorn Mining Company were each cited for unauthorized discharges of wastewater associated with their surface mining and/or coal processing and preparation plants in West Liberty and Phyllis, Ky., respectively. The Mullins Branch Preparation Plant in West Liberty discharges wastewater into Mullins Branch, while the Miller's Creek Mine Plant in Phyllis discharges wastewater into Miller's Creek. Under the CWA, such discharges require a National Pollutant Discharge Elimination System, and EPA has ordered each facility to cease all unpermitted discharges into waters of the United States.
EPA issued an AO for violations of the Concentrated Animal Feeding Operations requirements of the CWA at a dairy operation known as Lee Mayer #1 in Newberry, S.C. The order requires the owner, Mayer Farms, Inc., to cease the discharge of pollutants from the facility and come into compliance with the land-application requirements in accordance with its Waste Management Plan and permit. The AO also requires Mayer Farms to provide quarterly sampling reports for its waste, and for its crops and harvest plants to determine nutrient levels.
Congress enacted the Clean Water Act (CWA) in 1972 to protect the nation's rivers, lakes and stream, as well as some of the more fragile and vital wetland habitats. The entities cited violated the CWA by failing to meet the requirements of their National Pollutant Discharge Elimination System (NPDES) permits, and subsequently causing point source discharges. Pollutants of concern include nutrients, sediment, oil and grease, chemicals and metals. When left uncontrolled, water pollution can deplete needed oxygen and/or otherwise result in the destruction of aquatic habitats, as well as the fish and wildlife that depend on them. Water pollution can also contaminate food, drinking water supplies and recreational waterways, and thereby pose a threat to public health.
You are subscribed to Region 4: Water News Releases for U.S. Environmental Protection Agency. This information has recently been updated, and is now available [ http://service.govdelivery.com/service/view.html?code=USAEPA_235 ].
Tempers Flare at Environmental Justice Conference, By Brian Hansen
ARLINGTON, Virginia, December 12, 2000 (ENS) - Members of a federal government advisory panel today lambasted President Bill Clinton, Vice President Al Gore and the U.S. Environmental Protection Agency for failing to aggressively combat the scourge of "environmental racism" that they maintain is afflicting many poor communities and communities of color.
District Court Finds Non-Settling PRP Can Intervene in CERCLA Consent Decree
On January 15, 2010, the U.S. District Court for the Northern District of West Virginia held that a PRP's right to contribution under CERCLA is a significantly protectable interest permitting a non-settling PRP to intervene as of right to challenge a
consent decree between the federal government and a settling PRP.
United States v. Exxon Mobil Corp., No. 08-124
On January 20, 2010, the United States District Court for the Southern District of Illinois granted a CERCLA PRP's motion for leave to file an amended pleading seeking cost recovery under CERCLA § 107(a),
Second Circuit Affirms CERCLA Veil-Piercing to Impose Liability on Former Parent
In an unpublished opinion issued on December 10, 2009, the U.S. Court of Appeals for the Second Circuit affirmed a plaintiff corporation's recovery of CERCLA response costs from a company whose predecessor had once been the plaintiff's parent. Rochester Gas and Elec. Corp. v. GPU, Inc., No. 09-0482-cv, 2009 WL 4673916 (2d Cir. Dec. 10, 2009).
Tenth Circuit Upholds Remand of Class Action Involving “CERCLA Quality Cleanup”
On September 4, 2009, the U.S. Court of Appeals for the Tenth Circuit affirmed a lower court's remand to state court of a state law class action involving injuries allegedly arising out of contamination at a state-remediated site, holding that neither the Class Action Fairness Act (“CAFA”) nor CERCLA provided a basis for federal jurisdiction. Coffey v. Freeport McMoran Copper & Gold, 2009 U.S. App. LEXIS 19996 (10th Cir. Sep. 4, 2009).
Natural Resource Damage Claims Insufficient for Federal
Jurisdiction
On August 21, 2009, the U.S. District Court for the District of the Virgin Islands held that a territory's common law claims for natural recourse damages against manufacturers of dry cleaning chemicals for a site on the National Priorities List are not subject to federal jurisdiction. Mathes v. Vulcan Materials Co., 2009 U.S. Dist. LEXIS 74736 (D.V.I. Aug. 21, 2009).
Destruction of Samples Leads to Preclusion of Contamination Evidence
On May 21, 2009, the U.S. District Court for the District of Connecticut held that when a consulting firm hired by a CERCLA plaintiff to take soil samples did not preserve the samples or the analytical data, and the property was remediated before other parties could sample, plaintiff is precluded from offering any evidence based on the destroyed samples. Innis Arden Golf Club v. Pitney Bowes, Inc., 2009 U.S. Dist. LEXIS 43588 (D. Conn. May 21, 2009).
“Where a court failed to observe safeguards, it amounts to denial of due process of law, court is deprived of juris.” Merritt v. Hunter, C.A. Kansas 170 F2d 739.
“Once jurisdiction is challenged, the court cannot proceed when it clearly appears that the court lacks jurisdiction, the court has no authority to reach merits, but, rather, should dismiss the action.” Melo v. US, 505 F2d 1026.
Excercising your constitutional right cannot be converted into a crime or have sanctions levered against it: The state cannot diminish rights of the people. [Hertado v. California, 100 US 516.]
Where rights secured by the Constitution are involved, there can be no rule making or legislation which would abrogate them. [Miranda v. Arizona, 384 US 436, 491.]
There can be no sanction or penalty imposed upon one because of this exercise of constitutional rights. [Sherer v. Cullen, 481 F 946.]
"judges of courts of limited jurisdiction are entitled to absolute immunity for their judicial acts unless they act in the clear absence of all jurisdiction." King v. Love, 766 F.2d 962, 966 (6th Cir.), cert. denied, 474 U.S. 971, 106 S.Ct. 351, 88 L.Ed.2d 320 (1985).
Thus, for example, a criminal court judge would be immune from liability for convicting a defendant of a nonexistent crime, an act taken in excess of his jurisdiction, whereas a probate court judge would not be immune from liability if he tried a criminal case because he clearly lacked all subject matter jurisdiction. Id. (citing Bradley, 80 U.S. (13 Wall.) at 352).
Excerpt from page 974 F.2d 1329, 1992 WL 214444 (1st Cir.(Mass.)) Federal courts "have proceeded on the assumption that common-law principles of legislative and judicial immunity were incorporated into our judicial system and that they should not be abrogated absent clear legislative intent to do so." Pulliam v. Allen, 466 U.S. 522, 529 (1984). Under the common law, judges are generally immune from civil liability for judicial acts, subject to the conditions described above, but they do not enjoy immunity from criminal liability. See O'Shea v. Littleton, 414 U.S. 488, 503 (1974).
In the following cases, courts have found that the judges acted outside of their judicial capacity and were not entitled to immunity: Forrester v. White, 484 U.S. 219, 108 S.Ct. 538, 98 L.Ed.2d 555 (1988)(state court judge did not have absolute immunity from damages suit under S 1983 for his decision to demote and dismiss a probation officer); Morrison v. Lipscomb, 877 F.2d 463 (6th Cir.1989)(state court judge was not entitled to judicial immunity in connection with order declaring moratorium on issuance of writs of restitution from December 15 through January 2, as judge was acting in administrative and not judicial capacity); King v. Love, 766 F.2d 962, 968 (6th Cir.), cert. denied, 474 U.S. 971, 106 S.Ct. 351, 88 L.Ed.2d 320 (1985)(although setting bond on an arrest warrant is a judicial act, the act of deliberately misleading the police officer who was to execute the warrant about the identity of the person sought was nonjudicial); Sevier v. Turner, 742 F.2d 262 (6th Cir.1984)(juvenile court judge's initiation of criminal prosecution and civil contempt proceeding against father for child support in arrears constituted nonjudicial acts); New Alaska Development Corporation v. Guetschow, 869 F.2d 1298 (9th Cir.1988)(receiver appointed by state court to manage business assets of an estate was entitled to absolute derivative judicial immunity, but receiver was not absolutely immune from allegations that he stole assets or slandered parties, as such alleged acts were not judicial); Harper v. Merckle, 638 F.2d 848 (5th Cir.), cert. denied, 454 U.S. 816, 102 S.Ct. 93, 70 L.Ed.2d 85 (1981)(holding a contempt proceeding and ordering plaintiff incarcerated were not judicial acts where controversy that led to incarceration did not center around any matter pending before the judge, but around domestic problems of plaintiff former wife who worked at the courthouse); Harris v. Harvey, 605 F.2d 330 (7th Cir.1979), cert. denied, 445 U.S. 938, 100 S.Ct. 1331, 63 L.Ed.2d 772 (1980)(allegedly repeated communications to the press and city officials which were critical of police lieutenant, and the improper instigation of criminal proceedings against the lieutenant by judge as part of a racial campaign to discredit lieutenant were not judicial acts).
State Capacity Building
Objective - To fulfill the mandated objectives of the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (CERCLA) and the Superfund Amendments and Reauthorization Act (SARA) of 1986, as amended, in coordination with Agency for Toxic Substances and Disease Registry (ATSDR), by assisting public health agencies to build capacity to conduct (1) Health consultations, (2) public health assessments, (3) exposure investigations, (4) community involvement, (5) health education, and (6) public health studies.
Agency: Department of Health and Human Services
Office: Not applicable.
Authorization
Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) of 1980, Sections 104(i)(1)(E), (4), (6), (7), (9), (14) and (15), as amended; Superfund Amendments and Reauthorization Act of 1986, 42 U.S.C. 9604; Resource Conservation and Recovery Act, Section 3109(b) and (c), as amended; Hazardous and Solid Waste Amendments of 1984, 42 U.S.C. 6939 (b) and (c).
Uses and Use Restrictions
The uses are to strengthen State health agency environmental health programs.
Services include public health assessments, consultations, exposure investigations, health education, and follow-up health investigations/studies.
Funds may be expended for reasonable program purposes, such as personnel, travel, supplies and services.
Funds for contractual services may be requested.
However, the awardee, as the direct and primary recipient of PHS grant funds, must perform a substantive role in carrying out project activities and not merely serve as a conduit for an award to another party or provide funds to an ineligible party.
Equipment may be purchased with cooperative agreement funds; however, the equipment must meet applicable Federal requirements.
These funds may not be used by the recipient to conduct activities at any Federal site where the State is a party to litigation at the site.
Eligibility Requirements
Applicant Eligibility
Eligible applicants are the official public health agencies of States or their bona fide agents or instrumentalities, to include the District of Columbia, American Samoa, the Commonwealth of Puerto Rico, the Virgin Islands, the Federated States of Micronesia, Guam, the Northern Marina Islands, the Republic of the Marshall Islands, and the Republic of Palau, and the Federally- recognized Indian tribal governments.
Beneficiary Eligibility
Beneficiaries are individuals and/or families living in communities near or in proximity of Superfund sites.
Credentials/Documentation
Costs will be determined in accordance with OMB Circular No. A-87 for State and local governments.
Aplication and Award Process
Preapplication Coordination
No preapplication is required.
This program is eligible for coverage under E.O.
12372, "Intergovernmental Review of Federal Programs".
An applicant should contact the office or Official designated as the single point of contact in his or her State for more information on the process the State requires to be followed in applying for assistance, if the State has selected the program for review.
Application Procedures
Applicants must use application Form PHS 5161-1. Application packets are available from: Grants Management Branch, Procurement and Grants Office, Centers for Disease Control and Prevention, 2920 Brandywine Rd,. Room 3000, Mailstop K-75, Atlanta, GA 30341. By formal agreement, the CDC Procurement and Grants Office will act for and on behalf of ATSDR on this matter.
Award Procedures
The Assistant Administrator, ATSDR, determines applications to be approved and the priorities for funding. When an application is approved for funding, the Grants Management Officer, CDC, acting as the agent for ATSDR, will prepare a Notice of Award.
Deadlines
Contact the Headquarters Office identified below for application deadlines.
Range of Approval/Disapproval Time
Approximately 60 to 90 days.
Appeals
None.
Renewals
Awards are made for project periods from one to five years. Renewal awards cannot be made beyond the project period without competition.
Assistance Considerations
Formula and Matching Requirements
This program has no statutory formula.
Length and Time Phasing of Assistance
The annual awards are for a 12 month budget period within a three to five year project period. Noncompetitive continuation awards within the project period are made on the basis of satisfactory progress and availability of funds.
Post Assistance Requirements
Reports
Annual progress and financial status reports are required no later than 90 days after the end of each budget period.
An original and two copies of the final financial status and performance reports are due no later than 90 days after the end of the project period.
Audits
In accordance with the provisions of OMB Circular No. A- 133 (Revised, June 27, 2003), "Audits of States, Local Governments, and Nonprofit Organizations," nonfederal entities that expend financial assistance of $500,000 or more in Federal awards will have a single or a program-specific audit conducted for that year. Nonfederal entities that expend less than $500,000 a year in Federal awards are exempt from Federal audit requirements for that year, except as noted in Circular No. A-133.
Records
Detailed and accurate records of travel expenditures, personnel hours and all other costs will be retained for at least 10 years in accordance with EPS's "Superfund Financial Management and Recordkeeping Guidance for Federal Agencies". Such documents may be required to provide the basis of cost recovery actions or other litigation. Additionally, this documentation must be available for audit or verification upon request of the office of Inspector General.
Financial Information
Account Identification
75-8252-0-1-551.
Obigations
(Grants) FY 07 $10,894,064; FY 08 $12,681,515; and FY 09 est $11,500,000.
Range and Average of Financial Assistance
$150,627 to $700,000; $350,000.
Program Accomplishments
In fiscal year 2003, there were a total of 33 new competitive awards. It is anticipated that there will be 33 noncompetitive continuation awards in fiscal year 2004 and 2005.
Regulations, Guidelines, and Literature
Regulations governing this program are set forth in 45 CFR 92 and 40 CFR 35, Subpart O. Guidelines are available in the application kits. PHS Grants Policy Statement (Revised, April 1, 1994).
Information Contacts
Regional or Local Office
Not applicable.
Headquarters Office
Ms. Joan Flesner, Public Health Analyst, Division of Health Assessment and Consultation, Agency for Toxic Substances and Disease Registry, 1600 Clifton Road, NE., Mailstop F-59, Atlanta, Georgia 30333. Telephone: (770) 488-0739 Fax: (770) 488-1544. E-mail address: JFlesner@cdc.gov. Grants Management Contact: Mildred Garner, Grants Management Officer, Procurement and Grants Office, Centers for Disease Control and Prevention, 2920 Brandywine Road, Room 3000, Atlanta, GA 30341. Telephone: (770) 488-2745. Fax: (770) 488-2777.
Website Address
http://www.atsdr.cdc.gov.
Related Programs
None.
Examples of Funded Projects
States conduct public health evaluations on National Priorities List (NPL) sites, sites that ATSDR have been petitioned to assess, Superfund Accelerated Cleanup Model (SACM) sites, and other Comprehensive Environmental Response, Compensation, and Liability Information System (CERCLIS) sites.
Criteria for Selecting Proposals
Applications for core activities only were reviewed and evaluated based on the following criteria: (1) Proposed Program: (a) Merit scientific and technical merit of the proposed project to perform public health assessments, consultations, exposure investigations, health education and public health studies consistent with ATSDR guidance and in a timely manner. Applicant's ability to evaluate the public health impact of hazardous waste sites using health, environmental, and demographic data, and health-related concerns from the local community. (b) Requirements Applicant's understanding of the requirements, objectives, and complexities of the interactions required for a successful program. c) Collaboration Applicant's plan to collaborate with political and private subdivisions of Federal, State, and local health and environmental agencies and community groups to obtain information needed for evaluating the public health impact of hazardous waste sites, disseminate results of findings, and prevent exposure if identified. (2) Program Personnel: The principal investigator or project director and his/her ability to devote time and effort to provide effective leadership, and the qualifications of the support staff. (3) Applicant Capability: Adequacy and commitment of institutional resources, facilities, space, and equipment necessary for conducting the project are available and sufficient. (4) Program Budget: Extent to which the budget is reasonable, clearly justified, and consistent with intended use of funds. The priority order for funding cooperative agreements was as follows: (a) Number of proposed and/or listed National Priority List (NPL) sites (Federal and nonfederal) based on the most current EPA list, (b) number of Comprehensive Environmental Response, Compensation, and Liability Information System (CERCLIS) sites (Federal and nonfederal) based on the most current EPA list; (c) applicants who applied for both Core Activities and optional Activities; and (d) geographic distribution across the United States. (5) Human Subjects: Applicant's plan for adequate protection of human subjects. Applications for conducting Core Plus Optional Activities were reviewed and evaluated based on the following criteria: Proposed Program: In addition to the criteria outlined above for Core Activities, the applicant had to indicate an understanding of and capability for conducting human health studies as contained in the proposed site-specific protocol which had to include: (a) The approach, feasibility, adequacy, and rationale for the proposed study design, (b) the technical merit of the proposed study, (c) the proposed timeline, including measurable objectives, (d) proposed method for disseminating the results of the study.
Eligible applicants that can apply for this funding opportunity are listed below:
? Federally recognized or state-recognized American Indian/Alaska Native tribal governments
? State health departments or their Bona Fide Agents (this includes the District of Columbia, the Commonwealth of Puerto Rico, the Virgin Islands, the Commonwealth of the Northern Marianna Islands, American Samoa, Guam, the Federated States of Micronesia, the Republic of the Marshall Islands, and the Republic of Palau)
A Bona Fide Agent is an agency/organization identified by the state as eligible to submit an application under the state eligibility in lieu of a state application.
If applying as a bona fide agent of a state or local government, a letter from the state or local government as documentation of the status is required.
Attach with ?Other Attachment Forms? when submitting via www.grants.gov.
ATSDR?s regulatory authority cited by the CERCLA limits the eligible applicants that can apply for this funding opportunity.
Full Opportunity Web Address:
Contact:
Carolyn Wilburn Procurement and Grants Office Phone 770-488-2700
Agency Email Description:
PGOTIM@cdc.gov
Agency Email:
PGOTIM@cdc.gov
Date Posted:
2010-10-22
Application Due Date:
2010-12-22
Archive Date:
2011-01-21
More Federal Government Grant and Assistance Programs
Moral hazard occurs when a party insulated from risk behaves differently than it would behave if it were fully exposed to the risk.
Moral hazard arises because an individual or institution does not take the full consequences and responsibilities of its actions, and therefore has a tendency to act less carefully than it otherwise would, leaving another party to hold some responsibility for the consequences of those actions. For example, a person with insurance against automobile theft may be less cautious about locking his or her car, because the negative consequences of vehicle theft are (partially) the responsibility of the insurance company.
Economists explain moral hazard as a special case of information asymmetry , a situation in which one party in a transaction has more information than another. In particular, moral hazard may occur if a party that is insulated from risk has more information about its actions and intentions than the party paying for the negative consequences of the risk. More broadly, moral hazard occurs when the party with more information about its actions or intentions has a tendency or incentive to behave inappropriately from the perspective of the party with less information.
Moral hazard also arises in a principal-agent problem , where one party, called an agent, acts on behalf of another party, called the principal. The agent usually has more information about his or her actions or intentions than the principal does, because the principal usually cannot completely monitor the agent. The agent may have an incentive to act inappropriately (from the viewpoint of the principal) if the interests of the agent and the principal are not aligned.
such statutes are to be construed broadly "to effectuate the regulatory
purpose."
United States v. Baytank (Houston), Inc., 934 F.2d 599 (5th Cir. 1991)
By Monica Jensen SF Public Press/Newsdesk.org — Jan 10 2011 - 2:52pm
In December, activists met with officials from the federal Environmental Protection Agency to tour the shipyard and adjacent public facilities built on or near land contaminated with PCBs and other toxins, such as a school basketball court downwind from an excavation of soil laden with naturally occurring asbestos.
Activists also said that the Navy's unilateral dissolution of the Restoration Advisory Board in December 2009 enabled it to “fast track” major decisions while disregarding community concerns. The biggest decision was the approval of the environmental impact report for the second phase of a redevelopment plan for the neighborhood that will ultimately bring 10,500 homes to the area.
A year after the dissolution of the Restoration Advisory Board for Hunters Point Shipyard, the Navy says it will introduce a new community involvement plan that it says emphasizes diversity.
The announcement follows the White House's reconvened interagency effort on environmental justice, which held its first meeting under the Obama administration in September . The group is creating a four-year road map to develop “stronger community relationships” and targets “overburdened communities.” The next meeting is set for April.
Community involvement
Navy records described the advisory board as “unproductive,” and an EPA spokesman said the Navy's new “community involvement plan,” due to be released sometime in the next two months, will reboot community engagement.
States' leaders say Endangered Species Act 'nonsensical,' hurts business and farming
The Endangered Species Act is a “nonsensical” policy that hurts businesses, property owners and farmers to protect animals and plants that may not be at risk , a panel of Democratic and Republican governors from throughout the West said Wednesday.
The governors complained of having their hands tied by federal policy as animal populations described as thriving but listed as endangered ravage private ranches, state parks and golf courses. Wildlife advocates say species that have thrived under the law's protection might again be threatened if taken off the list.
“The frustration level is reaching the breaking point in many levels because of this act,” said Utah Gov. Gary R. Herbert. “It's nonsensical.”
The Republican governor griped about swarms of endangered prairie dogs digging into golf courses. “They have become so domesticated, they are just a pain,” he said.
The discussion about overhauling the Endangered Species Act came on the second day of a two-day conference of the Western Governors Association. State executives from 19 states, plus the U.S. territories of Guam, American Samoa and the Northern Mariana Islands, were invited to attend.
Federal environmental officials acknowledged the law's challenges and slow-paced evolution, but largely aimed to rebut complaints and praise a conservation policy that seeks to protect nearly 2,000 species of birds, insects, fish, mammals, flowers and trees.
“Does the act always work perfectly? No,” said Eileen Sobeck, deputy assistant secretary of Fish, Wildlife and Parks. “Do the successes under the act outnumber the problems? I think they do.”
With its plentiful plains and rich wildlife, endangered species protections remain a testy issue in the West.
Hunters and ranchers, a powerful constituency in the Mountain West, have called for delisting recovering populations of certain species such as gray wolves and grizzlies. They contend that the federal policy affects the value and sovereignty of their land and threatens livestock. Western governors insist states, not federal regulators, should have authority over native species that affect local habitats and create business hurdles.
“We are pretty good at managing our wildlife,” Gov. Brian Schweitzer of Montana said.
Montana, Wyoming and Idaho have been in negotiations with the federal Interior Department to remove gray wolves from the endangered species in recent weeks, but talks have since stalled.
The region's 1,700 wolves lost their endangered status in Montana and Idaho in 2009, but were returned to the endangered list this year after a lawsuit brought by environmentalists.
Schweitzer, a Democrat, said that the gray wolf population in the West has fully recovered and should not be on the list, but federal regulators have been reluctant to reconsider the endangered designation.
“The Endangered Species Act is the Hotel California,” he told The Associated Press. “You can check in, but you can never leave.”
Schweitzer said rural states do not have enough clout in Congress to successfully lobby for the delisting of wolves under the Endangered Species Act, and he blasted federal officials for making the process so bureaucratic.
Idaho Gov. C. L. “Butch” Otter said the law has pitted business owners against government enforcers. The Republican suggested the federal government instead encourage land owners to protect endangered species on private land through financial rewards.
“The Endangered Species Act is broken, it's bankrupt, it's a fraud now,” he said.
The authorities have unanimously recommended this arrangement for those seeking to establish a good government.
From Charles –Louis de Secondat, the Baron de Montesquieu:
When the legislative and executive powers are united in the same person, or in the same body of magistrates, there can be no liberty; because apprehensions may arise, lest the same monarch or senate should enact tyrannical laws, to execute them in a tyrannical manner.
Again, there is no liberty, if the judiciary power be not separated from the legislative and executive. Were it joined with the legislative, the life and liberty of the subject would be exposed to arbitrary control; for the judge would be then the legislator. Were it joined to the executive power, the judge might behave with violence and oppression.
From the Greek historian, Polybius:
Lycurgus…did not make his constitution simple and uniform, but united in it all the good and distinctive features of the best governments, so that none of the principles should grow unduly and be perverted into its allied evil, but that the force of being neutralized by the that of the others, neither of them should prevail and outbalance another, but that the constitution should remain for long in a state of equilibrium like a well-trimmed boat….
And finally, from the father of our own constitution, James Madison:
In order to lay a due foundation for that separate and distinct exercise of the different powers of government, which to a certain extent, is admitted on all hands to be essential to the preservation of liberty, it is evident that each department should have a will of its own; and consequently should be so constituted, hat the members of each should have as little agency as possible in the appointment of the members of the others.
Next, we turn to the heart chord, that is, the essential oil that is added to the head chord as the next step in creating the most pleasing government. That element is federalism . Again, we turn to the leading lights of political science.
Once again, from Montesquieu:
This form of government is a convention by which several petty states agree to become members of a larger one, which they intend to establish. It is a kind of assemblage of societies, that constitute a new one, capable of increasing by means of further associations, till they arrive at such a degree of power as to be able to provide for the security of the whole body,
and:
A republic of this kind, able to withstand an external force, may support itself without any internal corruption. The form of this society prevents all manner of inconveniencies.
Scottish Enlightenment philosopher David Hume agrees with the notion that a federal system would prevent the public interest from being attacked by factions united by “intrigue, prejudice or passion.” States, the smaller republics, would retain most power while granting to the central authority only those limited and specific powers necessary to protect the whole of society.
In the Federalist Papers , Alexander Hamilton supports the American expression of this timeless principle:
The proposed Constitution, so far from implying an abolition of the State Governments, makes them constituent parts of the national sovereignty by allowing them a direct representation in the Senate, and leaves in their possession certain exclusive and very important portions of sovereign power. This fully corresponds, in every rational import of the terms, with the idea of a Federal Government.
And his Federalist Papers collaborator, James Madison, cogently crystallized the point this way:
The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite.
Finally, if the perfume is to be long-lasting and memorable, the base chord must be added to the blend. Without this final ingredient, the scent would quickly dissipate and linger on only in memory.
The foundational additive in the enduring fragrance of American liberty is popular sovereignty . We, the people, are the ultimate and natural authority in our republic and it is only through our voluntary accession that government has any power whatsoever.
John Locke, whose powerful influence was felt by many of our own Founding Fathers and the documents they crafted to create our government, wrote in his Two Treatises on Government :
Every Man being, as has been shewed, naturally free, and nothing being able to put him into subjection to any Earthly Power, but only his own Consent…. (emphasis in the original)
Again, from the illustrious Scot, David Hume:
When we consider how nearly equal all men are in their bodily force, and even in their mental powers and faculties, till cultivated by education, we must necessarily allow that nothing but their own consent could at first associate them together and subject them to any authority. The people, if we trace government to its first origin in the woods and deserts, are the source of all power and jurisdiction, and voluntarily, for the sake of peace and order, abandoned their native liberty and received laws from their equal and companion.
And, appropriately, the last word on the fundamental nature of the principle of popular sovereignty is from James Madison:
We may define a republic to be, or at least may bestow that name on, a government which derives all its powers directly or indirectly from the great body of the people;
and finally,
As the people are the only legitimate fountain of power, and it is from them that the constitutional charter, under which the several branches of government hold their power, is derived…
In Dalliba v. Riggs, 7 Ida. 779, 82 Pac. 107, it was laid down that while a court of equity can appoint a receiver to perfect and preserve mining property, it “ has no authority to place its receiver in charge of such property and operate the same, carrying on a general mining business, and while it turns out to be at a loss, as is likely to be the result in such cases, charge the same up as a preferred claim and lien against the property, to the prejudice and loss of the holders of prior recorded liens on the same property” (82 Pac. At pp. 108-109). In that case the receiver appeared to have carried on the mining operations without any order of court directing him to do so and with reckless extravagance, and in addition was shown not only not to have kept accurate accounts but also to have made in the account filed “many charges against the estate where no charge whatever should have been made and none in fact existed.” The court accordingly denied the receiver any allowance for his own time or services and any allowance for attorney's fees. - JUSTICE BRANNON
Summary : Yesterday, the U.S. Merit Systems Protection Board (MSPB) ordered the National Park Service to reinstate whistleblower Teresa Chambers as Chief of the U.S. Park Police. Chambers' case garnered national attention when she was removed by the Bush administration in 2004 after telling the Washington Post that "traffic accidents had increased along the Baltimore-Washington Parkway because two, rather than the recommended four, officers were on patrol," as well as that more officers were needed to safeguard the country's national parks. Whistleblowers and members of the public from across the country responded by voicing their support for Chambers.
Throughout her ordeal, Chief Chambers' representation has been led by Public Employees for Environmental Responsibility (PEER) and its Senior Counsel Paula Dinerstein. GAP Senior Counsel Richard Condit and attorney Mick Harrison have also been part of Chief Chambers' legal team throughout her efforts to challenge her unlawful termination. The fifty-three page ruling by the MSPB is a tremendous victory for federal employee whistleblowers. Chambers is now due over six years of back pay, as well as reimbursements for costs and legal fees.
Summary : This article highlights GAP and On The Media's effort to find out which senator used a secret hold to kill the Whistleblower Protection Enhancement Act just before Congress adjourned in December.
Summary : An October vote that resulted in the defeat of a unionization effort of a Jimmy John's sandwich shop franchise in Minneapolis has been overturned. Charges of intimidation tactics (that were made against the owner) led to an investigation by the National Labor Relations Board, which approved a settlement Monday that allows for another unionization vote.
Summary : The final report by the White House oil spill commission, released yesterday, recommends reforms in both the oil industry and government agencies. The report calls attention to the need for better scientific research and safety measures, including a new industry-funded safety institute, that, "among other things, would figure out better ways to respond to spills."
Summary : Since the new Whistleblower Protection Act took effect this past December in Malaysia, at least 100 people have come forward with complaints of corruption or misconduct. The majority of the whistleblowers reported wrongdoings of coworkers, suggesting that they trust the new legislation to protect them from retaliation.
Summary : In an attempt to use technology to improve government efficiency, Rep. Darrell Issa (R-CA) – the new chair of the House Committee on Oversight and Government Reform – is using a website to accept tips on occurrences of fraud and abuse in government agencies.
Rep. Issa asserts personal information will be kept “in strict confidence.”
Summary : Brokerage firm Charles Schwab Corp. will pay $119 million to settle allegations, brought by the SEC, that the company deceived investors. The SEC has charged Charles Schwab with misleading clients about mutual fund risks, and breaking federal laws by investing too much money in a single sector.
Summary : A lawsuit filed against the United Egg Producers trade group – whose members control about 95 percent of U.S. egg-laying hens – and leading egg companies accuses them of manipulating the market to increase egg prices.
The complaint claims they collectively shrunk the supply "by killing off hens under the guise of treating the remaining animals more humanely by giving them more cage room."
Summary : This OTM segment features a follow-up interview with GAP Legal Director Tom Devine on the death of the Whistleblower Protection Enhancement Act (S. 372) in the lame duck session of Congress. The legislation was killed at the last minute (despite passing in the Senate just weeks before) due to one anonymous senator's decision to place a secret hold on the bill.
GAP and On The Media are working together to identify the senator who placed the secret hold. On The Media is asking its listeners, and GAP is asking our supporters to contact their respective senator's offices and ask them if they were the party who wrongfully killed this paramount legislation. Then, however senators may answer, you can report your correspondence to On The Media at blowthewhistle@wnyc.org and their site will post the information.
Summary : This op-ed by GAP Legal Director Tom Devine explains how the whistleblower reform bill was killed last minute in Congress through one senator's “secret hold,” despite overwhelming support for the bill. Devine argues for congressional reform of the “secret hold” process, which he deems “an open invitation to corruption.”
Summary : This article by a professor of journalism at Southern Illinois University at Carbondale discusses how the recent indictment of Jeffrey Sterling -- the ex-CIA official charged with revealing classified information to the press -- raises questions over the methods used to criminally prosecute whistleblowers and the growing frequency of such prosecutions.
Key Quote : But Jesselyn Radack of the Government Accountability Project sees Sterling as an authentic whistleblower and goes on to criticize the Obama administration for the record number of criminal cases it has brought against government officials leaking to the press.
…
Radack, whose Government Accountability Project protects government whistleblowers and favors government openness, remarked sarcastically in her blog that the prosecution of Sterling under the "famously ambiguous Espionage Act... gives Obama, the 'transparency' president, the dubious distinction of bringing the most 'leak prosecutions' of any administration, ever."
This op-ed by Steven L. Katz -- the former counsel for the Senate Governmental Affairs Committee -- advises government agencies to prepare for the increased oversight promised by Rep. Darrell Issa, the new leader of the House Oversight and Government Reform Committee.
Katz suggests that agencies create a plan that includes “addressing relationships and responsiveness to GAO, inspectors general and even whistleblowers.”
A former internal accountant for the New Orleans Public Library has filed a civil service complaint alleging that she was fired for exposing financial abnormalities, including $5,000 in copy machine revenue that was not properly accounted for.
GAP's mission is to promote corporate and government accountability by protecting whistleblowers, advancing occupational free speech, and empowering citizen activists. GAP has been the nation's leading whistleblower protection and advocacy organization since 1977.
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Copyright (C) 2010 Government Accountability Project. All rights reserved.
The widely diverging views reflect the controversial and complex nature of the permit, which governs the largest urban wastewater source in the West Coast's largest estuary.
Some local politicians and business leaders are protesting the potentially high cost of compliance.
"We understand there are some improvements that need to be made," said Michael Ault, executive director of the Sacramento Downtown Partnership, who raised the issue at the group's annual State of the Downtown breakfast Tuesday. "But we've got enough barriers against us in this economy to not pile on another obstacle for development."
The regional treatment plant handles sewage from 1.3 million people in the capital metro area, from Folsom to West Sacramento. It is the Delta's largest source of ammonia, a pollutant suspected of altering the food chain.
The district has 10 years to remove ammonia and reduce other pollutants. In a preliminary calculation, the district estimates that upgrading the 1982 plant to so-called "tertiary" treatment will cost $2 billion. Monthly sewer rates may have to triple, to $60 a month. Connection fees for new homes and businesses may also jump significantly.
The sanitation district asserts that the regional board lacked sufficient evidence of environmental harm to require virtual elimination of ammonia.
It also asks the state board to overturn controls on giardia and cryptosporidium. The district estimates it will cost $1.2 billion to filter out these pathogens – the single biggest expense.
The district cites a wastewater expert who testified at the Dec. 9 hearing that existing treatment removes enough of the pathogens to meet federal health standards.
It claims the regional board ignored this evidence and, instead, imposed a stricter standard on advice from the state Department of Public Health.
"There is the need to make sure we are protective of the environment," said Stan Dean, the district engineer. "And there is the need to make sure we are responsible stewards of the money this region pays toward that. We don't think an appropriate balance has been struck."
The discharge permit must be updated every five years, in accordance with the federal Clean Water Act, to reflect updated pollution science. Sacramento's has not been updated since 2000, in part because the battle over new pollution limits has been hard-fought.
In the meantime, numerous Delta fish species have plunged toward extinction. Sacramento's ammonia is seen as a potential contributor. Recent research suggests the volume – 14 tons a day – halts phytoplankton blooms at the base of the food chain.
Among them are copper and cyanide, both common in wastewater and toxic to fish.
The pollution limit for copper was set too high, the alliance argues, and those for cyanide and several other chemicals were relaxed compared to the last permit. It also argues that too much latitude was allowed for temperature increases in the river from the warmer effluent.
"Everybody was focused on the ammonia problem," said Bill Jennings, executive director of the Stockton-based alliance. "But then they bent over backward and ignored the rest of the regulations. And basically the permit is not protective of species in the Sacramento River."
The State Water Resources Control Board staff will determine if the appeals are valid. It then has 270 days to reject them or recommend a solution to the appointed board for a vote.
If rejected, the parties have the option to file suit against the regional board.
Court Defines “Current Owner” for Purposes of CERCLA Liability
The 9th Circuit Court of Appeals agreed with the District Court and determined that measuring ownership from the time of cleanup best aligns with the purposes for which CERCLA was enacted ¿ for three reasons. First, that the statute of limitations on a CERCLA action starts to run once remedial action has begun suggests that Congress intended the “owner” to be the owner at the time of cleanup. Second, CERCLA encourages responsible parties to remediate without delay and, if a landowner could avoid liability by transferring its property before a lawsuit is filed, then that landowner would have every incentive to delay cleanup until it found a buyer. Third, CERCLA was also enacted to encourage settlement and early voluntary cleanup of contaminated properties, and Hearthside's proposed rule would require that a lawsuit be filed as a prerequisite to recovery in every case.
“appropriate and consistent with requirements of applicable law and other resource considerations consistent with this Order or necessary for the exercise of valid existing rights.”
Abstract: The burden of regulation on Americans increased at an alarming rate in fiscal year 2010. Based on data from the Government Accountability Office, an unprecedented 43 major new regulations were imposed by Washington. And based on reports from government regulators themselves, the total cost of these rules topped $26.5 billion, far more than any other year for which records are available. These costs will affect Americans in many ways, raising the price of the cars they buy and the food they eat, while destroying an untold number of jobs. With the enactment of new health care laws, financial regulations, and plans for rulemaking in other areas, the regulatory burden on Americans is set to increase even further in the coming year.
The Hidden Tax
The cost of regulation has often been called a hidden tax. Although the total does not appear anywhere in the federal budget, the multitude of rules, restrictions, and mandates imposes a heavy burden on Americans and the U.S. economy. According to a report recently released by the Small Business Administration, total regulatory costs amount to about $1.75 trillion annually, [1] nearly twice as much as all individual income taxes collected last year. [2]
Not all regulations are unwarranted, of course. Most Americans would agree on the need for protections against terrorism, although the extent of such rules is certainly subject to debate. Moreover, regulations are not necessarily inconsistent with free-market principles. Some, such as anti-fraud measures, protect the rights of consumers. But there is always a cost. And, for the same reasons that federal spending is reported, so, too, should regulatory costs.
Record Increases
This regulatory burden has been increasing for some time. During the presidency of George W. Bush, which many mistakenly consider as a period of deregulation, the regulatory burden increased by more than $70 billion, according to agency regulatory impact reports. In FY 2009, which spanned the Bush and Obama Administrations, rulemaking proceeded at a nearly unprecedented rate, with the addition of 23 major rules imposing $13 billion in new costs. [3]
But the available evidence indicates that regulatory costs increased last year at a far greater pace. According to data from the Government Accountability Office, federal agencies promulgated 43 rules during the fiscal year ending September 30, 2010, [4] that impose significant burdens on the private sector. The total costs for these rules were estimated by the regulators themselves at some $28 billion, the highest level since at least 1981, the earliest date for which figures are available. [5] Fifteen of the 43 major rules issued last during the fiscal year involved financial regulation. Another five stem from the Patient Protection and Affordable Care Act adopted by Congress in early 2010. Ten others come from the Environmental Protection Agency (EPA), including the first mandatory reporting of “greenhouse gas” emissions and $10.8 billion in new automotive fuel economy standards (adopted jointly with the National Highway Traffic Safety Administration (NHTSA)). Overall, counting the fuel standards, the EPA is responsible for the lion's share of the reported regulatory costs—some $23.2 billion.
Among the most costly of the FY 2010 crop are:
Fuel economy and emission standards [6] for passenger cars, light-duty trucks, and medium-duty passenger vehicles imposed jointly by the EPA and NHTSA. Annual cost: $10.8 billion (for model years 2012 to 2016). For automakers to recover these increased outlays, NHTSA estimates the standards will lead to increases in average new vehicle prices ranging from $457 per vehicle in FY 2012 to $985 per vehicle in FY 2016. [7]
Mandated quotas for renewable fuels. Annual cost: $7.8 billion (for 15 years). Utilizing farmland to grow corn and other crops used in renewable fuels will displace food crops, leading food costs to increase by $10 per person per year—or $40 for a family of four, according to the EPA. [8]
Efficiency standards for residential water heaters, heating equipment, and pool heaters. Annual cost: $1.3 billion. The appliance upgrades necessary to comply with the new standards will raise the price of a typical gas storage water heater by $120. [9]
Limits on “effluent” discharges from construction sites imposed by the EPA. Annual cost: $810.8 million. The cost of the requirements will force the closure of 147 construction firms and the loss of 7,257 jobs, according to the EPA. Homebuyers also will bear some of the costs, with an increase in mortgage costs of about $1,953.
Regulatory Reductions Missing in Action
Measures to reduce regulatory burdens, by contrast, were few and far between in FY 2010. Only five significant rulemakings adopted last year reduced burdens. Of these, cost reductions were quantified for only two, for reported savings of $1.5 billion. This leaves a net increase in the regulatory burden of $26.5 billion.
Moreover, one of the five measures—though technically deregulatory in nature—relates to an unparalleled expansion of EPA powers. Due to its determination last year that greenhouse gases are pollutants, the agency is moving to set emissions limits for such gases. To follow the standards in the Clean Air Act would corral millions of currently unregulated “facilities,” including offices and apartment buildings, shopping malls, restaurants, hotels, hospitals, schools, houses of worship, theaters, and sports arenas into the EPA regulatory regime. In hopes of quieting political outrage over so sweeping a dictate, the EPA's “Tailoring Rule” [10] set a minimum threshold level for regulation. Therefore, fewer facilities would be subject to permit requirements, making imposition of the emissions limits more feasible. Rather than reduce overall burdens, this action actually facilitated increased burdens. [11]
Actual Costs Likely Higher
The actual cost of regulations adopted in FY 2010 is almost certainly much higher than $26.5 billion. As a first matter, the cost of non-economically significant rules—rules deemed not likely to have an annual impact of $100 million or more—is not calculated (although such rules are believed to constitute only a small portion of total regulatory costs). Moreover, costs were not quantified for 12 of the economically significant rules adopted in FY 2010.
Many of the rules lacking quantified costs involve financial regulation. The Federal Reserve Board, for instance, did not quantify any costs for its new “Truth in Lending” [12] regulations—which impose fee and disclosure requirements for credit card accounts—although the new rules are generally expected to be costly. Similarly, costs were not calculated for new Federal Reserve Board regulations on prepaid electronic gift cards. [13]
It should also be noted that reported costs are likely minimized by allowing agencies to make the initial calculations, thereby casting their proposals in the best light. This could have a substantial impact: Overall, there is evidence that agencies systematically understate regulatory costs. In its 2005 report to Congress, the OMB's Office of Information and Regulatory Affairs conducted ex ante analyses of regulations to test the accuracy of cost-benefit estimates. The study determined that regulators overestimated benefits 40 percent of the time and underestimated costs 34 percent of the time. [14]
Even a finding that costs exceed benefits does not necessarily stop a new rule from going into effect. For instance, in evaluating new regulations for train-control systems, the Department of Transportation identified costs of $477.4 million, and benefits of a mere $22 million. Nevertheless, due to a statutory mandate, the regulations were adopted.
The EPA is prohibited by law from considering costs in devising regulations under the Clean Air Act and other major environmental statutes. Thus, the agency recently set new, more stringent standards on emissions of nitrogen dioxide without formally considering the economic or technical feasibility of compliance. [15] While the EPA did prepare a cost-benefit analysis—concluding that the costs exceed the benefits—agency officials conceded they had no way of determining the number of localities that would be out of compliance under the new rule.
Lastly, it should be noted that annual compliance costs constitute only part of the economic burden of regulation. New rules also entail start-up costs for new equipment, conversions of industrial processes, and devising data collection and reporting procedures. These “first-year” costs exceed $3.1 billion for the 43 new FY 2010 regulations. For example, new restrictions on “short sales” [16] imposed by the Securities and Exchange Commission will require initial costs of more than $1 billion [17] for modifications to computer systems and surveillance mechanisms, and for information-gathering, management, and recordkeeping systems. Likewise, the EPA estimates one-time implementation costs of nearly $745 million for new limits on emissions from diesel engines used in energy production. [18]
More Rules on the Way
Many, many more regulations are in the pipeline. According to one estimate, financial regulation legislation recently adopted by Congress, known as the Dodd–Frank bill, will require 243 new formal rule-makings by 11 different federal agencies. [19] So wide-ranging are regulators' new powers, in fact, that the Department of Health and Human Services has failed to meet one-third of the deadlines mandated by the new federal health care law, according to a report by the Congressional Research Service. [20]
Meanwhile, the new Consumer Financial Protection Bureau created under the Dodd–Frank measure will wield vaguely defined powers to regulate financial products and services, including mortgages, credit cards, even student loans. And, the Federal Communications Commission is mulling new regulations to limit how Internet service providers manage their networks. Such “net neutrality” rules, if enacted, would undermine investment incentives, thereby robbing the nation of much-needed broadband upgrades. [21]
Taken together, these initiatives embody a stunningly full regulatory agenda—indicating that this year's record for regulatory increases will not stand for long.
Conclusion
The regulatory burden increased at an unprecedented rate during FY 2010, as measured by both the number of new major rules as well as their reported costs. Even more are on the way in 2011.
A number of steps have been proposed to stem this growth, ranging from automatic sunsetting of rules [22] to requiring congressional approval of all new major rules. [23]
Mere procedural reforms will not be enough to stem this regulatory tide. Regulatory costs will rise until policymakers appreciate the burdens that regulations are imposing on Americans and the economy, and exercise the political will necessary to limit—and reduce—those burdens.
— James L. Gattuso is Senior Research Fellow in Regulatory Policy, Diane Katz is Research Fellow in Regulatory Policy, and Stephen A. Keen is a Research Assistant, in the Thomas A. Roe Institute for Economic Policy Studies at The Heritage Foundation.
Appendix
Major Rulemaking Proceedings that Increased Regulatory Burdens, October 2009–September 2010
October 2009
October 30, 2009, Environmental Protection Agency, “Mandatory Reporting of Greenhouse Gases”: $94.9 million annually; $140.7 million start-up.
November 2009
November 17, 2009, Federal Reserve System, “Electronic Fund Transfers”: $10.9 million annually.
December 2009
December 1, 2009, Environmental Protection Agency, “Effluent Limitations Guidelines and Standards for the Construction and Development Point Source Category”: $810.8 million annually.
December 4, 2009, Securities and Exchange Commission, “Amendments to Rules for Nationally Recognized Statistical Rating Organizations”: $34.9 million annually; $16.2 million start-up.
December 4, 2009, Department of Transportation, Pipeline and Hazardous Materials Safety Administration, “Pipeline Safety: Integrity Management Program for Gas Distribution Pipelines”: $101.1 million annually; $130.1 million start-up.
December 23, 2009, Securities and Exchange Commission, “Proxy Disclosure Enhancements”: $66.5 million annually.
January 2010
January 8, 2010, Department of Energy, “Energy Conservation Program: Energy Conservation Standards for Certain Consumer Products (Dishwashers, Dehumidifiers, Microwave Ovens, and Electric and Gas Kitchen Ranges and Ovens) and for Certain Commercial and Industrial Equipment (Commercial Clothes Washers)”: $23.4 million annually.
January 11, 2010, Securities and Exchange Commission, “Custody of Funds or Securities of Clients by Investment Advisers”: $125.1 million annually; $1.2 million start-up.
January 15, 2010, Federal Reserve System and Federal Trade Commission, “Fair Credit Reporting Risk-Based Pricing Regulations”: $252.1 million annually.
January 15, 2010, Department of Transportation, Federal Railroad Administration, “Positive Train Control Systems”: $477.4 million annually.
January 28, 2010, Department of the Treasury, Office of the Comptroller of the Currency; Federal Reserve System; Federal Deposit Insurance Corporation; Department of the Treasury, Office of Thrift Supervision, “Risk-Based Capital Guidelines; Capital Adequacy Guidelines; Capital Maintenance: Regulatory Capital; Impact of Modifications to Generally Accepted Accounting Principles; Consolidation of Asset-Backed Commercial Paper Programs; and Other Related Issues”: cost not quantified.
February 2010
February 9, 2010, Environmental Protection Agency, “Primary National Ambient Air Quality Standards for Nitrogen Dioxide”: cost not quantified.
February 17, 2010, Department of Agriculture, Agricultural Marketing Service, “National Organic Program; Access to Pasture (Livestock)”: cost not quantified.
February 22, 2010, Federal Reserve System, “Truth in Lending”: cost not quantified.
March 2010
March 3, 2010, Environmental Protection Agency, “National Emission Standards for Hazardous Air Pollutants for Reciprocating Internal Combustion Engines”: $373.4 million annually; $744.7 million start-up.
March 4, 2010, Securities and Exchange Commission, “Money Market Fund Reform”: $60.2 million annually; $86.9 million start-up.
March 9, 2010, Department of Energy, “Energy Conservation Program: Energy Conservation Standards for Small Electric Motors”: $263.9 million annually.
March 10, 2010, Securities and Exchange Commission, “Amendments to Regulation SHO”: $1.2 billion annually; $1.1 billion start-up.
March 19, 2010, Department of Health and Human Services, Food and Drug Administration, “Regulations Restricting the Sale and Distribution of Cigarettes and Smokeless Tobacco to Protect Children and Adolescents”: cost not quantified.
March 26, 2010, Environmental Protection Agency, “Regulation of Fuels and Fuel Additives: Changes to Renewable Fuel Standard Program”: $7.8 billion annually.
April 2010
April 1, 2010, Federal Reserve System, “Electronic Fund Transfers”: cost not quantified.
April 5, 2010, Department of Transportation, Federal Motor Carrier Safety Administration, “Electronic On-Board Recorders for Hours-of-Service Compliance”: $139 million annually.
April 14, 2010, Department of Health and Human Services, Food and Drug Administration, “Use of Ozone-Depleting Substances; Removal of Essential-Use Designation (Flunisolide, etc.)”: $181.9 million annually.
April 16, 2010, Department of Energy: Energy Conservation Program, “Energy Conservation Standards for Residential Water Heaters, Direct Heating Equipment, and Pool Heaters”: $1.3 billion annually.
May 2010
May 6, 2010, Environmental Protection Agency, “Lead; Amendment to the Opt-Out and Recordkeeping Provisions in the Renovation, Repair, and Painting Program”: $419.5 million annually; $552 million start-up.
May 7, 2010, Environmental Protection Agency and Department of Transportation, National Highway Traffic Safety Administration, “Light-Duty Vehicle Greenhouse Gas Emission Standards and Corporate Average Fuel Economy Standards; Final Rule”: $10.8 billion annually (2012–2016).
May 13, 2010, Department of the Treasury, Internal Revenue Service; Department of Labor, Employee Benefits Security Administration; Department of Health and Human Services, Office of the Secretary, “Interim Final Rules for Group Health Plans and Health Insurance Issuers Relating to Dependent Coverage of Children to Age 26 Under the Patient Protection and Affordable Care Act”: $11 million annually.
May 28, 2010, Department of Transportation, Federal Aviation Administration, “Automatic Dependent Surveillance—Broadcast (ADS-B) Out Performance Requirements to Support Air Traffic Control (ATC) Service”: $100 million annually.
June 2010
June 4, 2010, Federal Reserve System, “Electronic Fund Transfers”: cost not quantified.
June 17, 2010, Department of the Treasury, Internal Revenue Service; Department of Labor, Employee Benefits Security Administration; Department of Health and Human Services, “Interim Final Rules for Group Health Plans and Health Insurance Coverage Relating to Status as a Grandfathered Health Plan Under the Patient Protection and Affordable Care Act”: $25.2 million annually; $30.2 million start-up.
June 22, 2010, Environmental Protection Agency, “Primary National Ambient Air Quality Standard for Sulfur Dioxide”: $1.6 billion annually.
June 28, 2010, Department of the Treasury, Internal Revenue Service; Department of Labor, Employee Benefits Security Administration; and Department of Health and Human Services, “Patient Protection and Affordable Care Act: Preexisting Condition Exclusions, Lifetime and Annual Limits, Rescissions, and Patient Protections”: $4.8 million annually.
June 29, 2010, Federal Reserve System, “Truth in Lending”: cost not quantified.
July 2010
July 14, 2010, Securities and Exchange Commission, “Political Contributions by Certain Investment Advisers”: $85.1 million annually; $22.6 million start-up.
July 16, 2010, Department of Labor, Employee Benefits Security Administration, “Reasonable Contract or Arrangement Under Section 408(b)(2)—Fee Disclosure ”: $57.7 million annually.
July 19, 2010, Department of the Treasury, Internal Revenue Service; Department of Labor, Employee Benefits Security Administration; and Department of Health and Human Services, “Interim Final Rules for Group Health Plans and Health Insurance Issuers Relating to Coverage of Preventive Services Under the Patient Protection and Affordable Care Act”: cost not quantified.
July 23, 2010, Department of the Treasury, Internal Revenue Service; Department of Labor, Employee Benefits Security Administration; and Department of Health and Human Services, “Interim Final Rules for Group Health Plans and Health Insurance Issuers Relating to Internal Claims and Appeals and External Review Processes Under the Patient Protection and Affordable Care Act”: $75.1 million annually.
July 28, 2010, Department of the Treasury, Office of the Comptroller of the Currency, “Registration of Mortgage Loan Originators”: $123.9 million annually; $283.3 million start-up.
August 2010
August 9, 2010, Department of Labor, Occupational Safety and Health Administration, “Cranes and Derricks in Construction”: $151.6 million annually.
August 12, 2010, Securities and Exchange Commission: “Amendments to Form ADV”: $20.5 million annually; $56.4 million start-up.
August 20, 2010, Environmental Protection Agency, “National Emission Standards for Hazardous Air Pollutants for Reciprocating Internal Combustion Engines”: $253 million annually.
September 2010
September 9, 2010, Environmental Protection Agency, “National Emission Standards for Hazardous Air Pollutants from the Portland Cement Manufacturing Industry and Standards of Performance for Portland Cement Plants”: $1 billion in 2013.
September 16, 2010, Securities and Exchange Commission, “Facilitating Shareholder Director Nominations”: $8 million annually.
Major Rulemaking Proceedings that Decreased Regulatory Burdens, October 2009–September 2010
October 19, 2009, Securities and Exchange Commission, “Internal Control Over Financial Reporting in Exchange Act Periodic Reports of Non-Accelerated Filers”: savings not quantified.
November 2, 2009, Department of Health and Human Services, Centers for Disease Control and Prevention, “Medical Examination of Aliens—Removal of Human Immunodeficiency Virus (HIV) Infection from Definition of Communicable Disease of Public Health Significance”: savings not quantified.
November 13, 2009, Environmental Protection Agency, “Oil Pollution Prevention; Spill Prevention, Control, and Countermeasure (SPCC) Rule—Amendments”: $98.6 million.
March 31, 2010, Department of Justice, Drug Enforcement Administration, “Electronic Prescriptions for Controlled Substances”: $1.4 billion.
June 3, 2010, Environmental Protection Agency, “Prevention of Significant Deterioration and Title V Greenhouse Gas Tailoring Rule”: savings not quantified.
where landowners fence or post "no trespassing" signs on their property or otherwise indicate
unmistakably that entry is not allowed, their "expectation that their privacy rights will be
respected and that they will be free from unwanted intrusions is reasonable".
Authority: 42 U.S.C. 1857 et seq.
Source: 38 FR 12784, May 15, 1973, unless otherwise noted.
These provisions establish and codify policies and procedures governing the award of research and demonstration grants by the Environmental Protection Agency.
This part establishes mandatory policies and procedures for all EPA research and demonstration grants. The provisions of this part supplement the EPA general grant regulations and procedures (40 CFR part 30). Accordingly, all EPA research and demonstration grants are awarded subject to the EPA interim general grant regulations and procedures (40 CFR part 30) and to the applicable provisions of this part 40.
EPA research and demonstration grants are authorized under the following statutes:
(1) Section 103 (42 U.S.C. 1857b) authorizes grants for research and demonstration projects relating to the causes, effects, extent, prevention, and control of air pollution.
(2) Section 104 (42 U.S.C. 1857b–1) authorizes grants for research and development of new and improved methods for the prevention and control of air pollution resulting from the combustion of fuels.
(b) The Federal Water Pollution Control Act, as amended, Public Law 92–500.
(1) Section 104(b) (33 U.S.C. 1254(b)) authorizes grants for research and demonstration projects relating to the causes, effects, extent, prevention, reduction, and elimination of water pollution.
(4) Section 104(r) (33 U.S.C. 1254(r)) authorized grants for the conduct of basic research into the structure and function of freshwater aquatic ecosystems, and to improve understanding of the ecological characteristics necessary to the maintenance of the chemical, physical, and biological integrity of freshwater aquatic ecosystems.
(5) Section 104(s) (33 U.S.C. (s)) authorizes grants to conduct and report on interdisciplinary studies on river systems, including hydrology, biology, ecology, economics, the relationship between river uses and land uses, and the effects of development within river basins on river systems and on the value of water resources and water-related activities.
(6) Section 105(a) (33 U.S.C. 1255(a)) authorizes grants for research and demonstration of new or improved methods for preventing, reducing, and eliminating the discharge into any waters of pollutants from sewers which carry storm water or both storm water and pollutants; and for the demonstration of advanced waste treatment and water purification methods (including the temporary use of new or improved chemical additives which provide substantial immediate improvement to existing treatment processes), or new or improved methods of joint treatment systems for municipal and industrial wastes.
(7) Section 105(b) (33 U.S.C. 1255(b)) authorizes grants for demonstrating, in river basins or portions thereof, advanced treatment and environmental enhancement techniques to control pollution from all sources, within such basin or portions thereof, including nonpoint sources, together with in-stream water quality improvement techniques.
(8) Section 105(c) (33 U.S.C. 1255(c)) authorizes grants for research and demonstration projects for prevention of pollution of any waters by industry including, but not limited to, the prevention, reduction, and elimination of the discharge of pollutants.
(9) Section 105(e)(1) (33 U.S.C. 1255(e)(1)) authorizes grants for research and demonstration projects with respect to new and improved methods of preventing, reducing, and eliminating pollution from agriculture.
11) Section 107 (33 U.S.C. 1257) authorizes grants for projects to demonstrate comprehensive approaches to the elimination or control of acid or other mine water pollution resulting from active or abandoned mining operations and other environmental pollution affecting water quality within all or part of a watershed or river basin, including siltation from surface mining.
(d) The Solid Waste Disposal Act, as amended, by the Resource Conservation and Recovery Act of 1976 (42 U.S.C. 6901 et seq. ).
(1) Section 8001 (42 U.S.C. 6981) authorizes grants for research and demonstration projects relating to solid waste.
(2) Section 8004 (42 U.S.C. 6984) authorizes grants for demonstration of new or improved technologies for resource recovery.
(3) Section 8005 (42 U.S.C. 6985) authorizes grants to conduct special studies and demonstration projects on recovery of useful energy and materials.
(4) Section 8006 (42 U.S.C. 6986) authorizes grants for the demonstration of resource recovery system or for the construction of new or improved solid waste disposal facilities.
May include the preliminary planning to determine the economic and engineering feasibility of a facility, the engineering, architectural, legal, fiscal, and economic investigations and studies, surveys, designs, plans, working drawings, specifications, procedures, and other action necessary to the construction of a facility, the erection, acquisition, alteration, remodeling, improvement, or extension of a facility, and the inspection and supervision of the construction of a facility.
(a) Under the Federal Water Pollution Control Act, an individual, corporation, partnership, association, State, municipality, commission, or political subdivision of a State, or any interstate body.
(b) Under the Resource Conservation and Recovery Act, an individual, trust, firm, joint stock company, corporation (including a government corporation), partnership, association, State, municipality, commission, political subdivision of a State, or any interstate body.
[38 FR 12784, May 15, 1973, as amended at 42 FR 56057, Oct. 20, 1977]
The Office of Research and Development of EPA publishes a statement of research objectives and priorities annually in a document entitled “Office of Research and Development—Program Guide.” This document may be obtained from either the Office of Research and Development, RD–674, or the Grants Administration Division, PM–216, U.S. Environmental Protection Agency, Washington, DC 20460.
(b) No research or demonstration grant shall be approved for a project period in excess of 5 years.
(c) The grant award official may extend the budget and project periods for up to an additional 12 months without additional grant funds, when such extensions are in the best interest of the Government.
[42 FR 56057, Oct. 20, 1977, as amended at 72 FR 52010, Sept. 12, 2007]
In addition to the cost-sharing requirements pursuant to 40 CFR 30.720, research and demonstration grants shall be governed by the specific assistance limitations listed below:
(a) Federal Water Pollution Control Act. (1) Section 104(s)—no grant in any fiscal year may exceed $1 million.
(2) Sections 105 (a), (c) and 108—no grant may exceed 75 percent of the allowable actual project costs.
(b) Clean Air Act. (1) Section 104—no grant may exceed $1,500,000.
(2) [Reserved]
(c) Resource Conservation and Recovery Act. (1) Sections 8001, 8004, and 8005. The maximum practicable cost sharing is required.
(2) Section 8006. The Federal share for any grant for the demonstration of resource recovery systems shall not exceed 75 percent and is subject to the conditions contained in section 8006(b) of the Act. The Federal share for any grant for the construction of new or improved solid waste disposal facilities shall not exceed 50 percent in the case of a project serving an area which includes only one municipality and 75 percent in any other case, and is subject to the limitations contained in section 8006(c) of the Act. Not more than 15 percent of the total funds authorized to be appropriated for any fiscal year to carry out this section shall be awarded for projects in any one State.
[38 FR 12784, May 15, 1973, as amended at 42 FR 20083, May 8, 1977; 42 FR 56057, Oct. 20, 1977]
Except as otherwise provided below, grants for research and demonstration projects may be awarded to any responsible applicant in accordance with 40 CFR 30.340:
(a) The Clean Air Act, as amended—public or nonprofit private agencies, institutions, organizations, and to individuals.
(b) Resource Conservation and Recovery Act.
(1) Section 8001, public authorities, agencies, and institutions; private agencies and institutions; and individuals.
(2) Sections 8004 and 8005, public agencies and authorities or private persons.
(3) Section 8006, State, municipal, interstate or intermunicipal agencies.
(4) No grant may be made under this Act to any private profit-making organization.
(c) The Federal Insecticide, Fungicide, and Rodenticide Act, as amended—other Federal agencies, universities, or others as may be necessary to carry out the purposes of the act.
(d) The Federal Water Pollution Control Act, as amended:
(1) Section 104(b)—State water pollution control agencies, interstate agencies, other public or nonprofit private agencies, institutions, organizations, and to individuals.
(2) Sections 104 (h) and (i)—public or private agencies and organizations and to individuals.
(3) Section 104(r)—colleges and universities.
(4) Section 104(s)—institutions of higher education.
(5) Sections 105 (a), (e)(2), and 107—State, municipal, interstate, and intermunicipal agencies.
(6) Section 195(b)—State or States or interstate agency.
(7) Sections 105 (c) and (e)(1)—persons.
(8) Section 108—State, political subdivision, interstate agency, or other public agency, or combination thereof.
(9) Section 113—only to the State of Alaska .
(e) The Public Health Service Act, as amended—only to nonprofit agencies, institutions, organizations, and to individuals.
[38 FR 12784, May 15, 1973, as amended at 40 FR 20083, May 8, 1975; 42 FR 56057, Oct. 20, 1977]
(a) All applicants. (1) Applicants for research and demonstration grants are encouraged to contact EPA for further information and assistance prior to submitting a formal application. The EPA regional office or the laboratory nearest the applicant will be able to provide such assistance or to refer the applicant to an appropriate EPA representative.
(2) Applicants shall prepare an environmental assessment of the proposed project where applicable, outlining the anticipated impact on the environment pursuant to 40 CFR part 6.
(b) Applications for grants for demonstration projects funded by the Office of Solid Waste will be solicited through the Department of Commerce Business Daily, and selections will be made on a competitive basis.
[38 FR 12784, May 15, 1973, as amended at 41 FR 20659, May 20, 1976; 42 FR 56057, Oct. 20, 1977; 48 FR 29302, June 24, 1983]
All applications for research and demonstration grants shall be submitted in an original and 8 copies to the Environmental Protection Agency, Grants Administration Division, Washington, DC 20460, in accordance with §§30.315 through 30.315–3.
(a) Applications involving human subjects. (1) Safeguarding the rights and welfare of human subjects involved in projects supported by EPA grants is the responsibility of the institution which receives or is accountable to EPA for the funds awarded for the support of the project.
(2) Institutions must submit to EPA, for review, approval, and official acceptance, a written assurance of its compliance with guidelines established by Department of Health, Education, and Welfare concerning protection of human subjects. However, institutions which have submitted and have had accepted, general assurance to DHEW under these guidelines will be considered as being in compliance with this requirement. These guidelines are provided in DHEW Publication No. (NIH) 72–102, the “Institutional Guide to DHEW Policy on Protection of Human Subjects.” Copies of this publication are available from the Superintendent of Documents, U.S. Government Printing Office, Washington , DC 20420 .
(3) Applicants must provide with each proposal involving human subjects a certification that it has been or will be reviewed in accordance with the institution's assurance. This certification must be renewed annually on the basis of continuing review of the supported project.
(b) Applications involving laboratory animals. Each application for a project involving the use of warmblooded animals shall include a written assurance that the applicant has registered with the Department of Agriculture and is in compliance with the rules, regulations, and standards enunciated in the Animal Welfare Act, Public Law 89–554, as amended.
(c) Notice of research project ( NRP ). Each application for research must include a summary (NRP) of proposed work (200 words or less) incorporating objectives, approach and current plans and/or progress. Upon approval of an application, summaries are forwarded to the Smithsonian Science Information Exchange. Summaries of work in progress are exchanged with government and private agencies supporting research and are forwarded to investigators who request such information.
(d) Federal Water Pollution Control Act. (1) All applications for grants under section 105(a) must have been approved by the appropriate State water pollution control agency or agencies.
(2) All applications for grants under section 107, where the proposed project will be located in the Appalachian region, shall have been coordinated with the Appalachian Regional Commission for determination that such demonstration project is consistent with the objectives of the Appalachian Regional Development Act of 1965, as amended.
(e) Intergovernmental review. EPA will not award funds under this subpart without review and consultation, if applicable, in accordance with the requirements of Executive Order 12372, as implemented in 40 CFR part 29 of this chapter.
[38 FR 12784, May 15, 1973, as amended at 40 FR 20083, May 8, 1975; 42 FR 56057, Oct. 20, 1977; 48 FR 29302, June 24, 1983]
In determining the desirability and extent of funding for a project and the relative merit of an application, consideration will be given to the following criteria:
(a) All applications for grants under section 105(c) must provide evidence that the proposed project will contribute to the development or demonstration of a new or improved method of treating industrial wastes or otherwise preventing pollution by industry, which method shall have industrywide application;
(b) All applications for grants under section 113 must include provisions for community safe water supply systems, toilets, bathing and laundry facilities, sewage disposal facilities and programs relating to health and hygiene. Such projects must also be for the further purpose of developing preliminary plans for providing such safe water and such elimination or control of water pollution for all native villages in the State of Alaska .
In addition to the EPA general grant conditions (40 CFR part 30, subpart C), all grants are awarded subject to the following requirements:
(a) The project will be conducted in an environmentally sound manner.
(b) In addition to the notification of project changes required pursuant to 40 CFR 30.900, prior written approval by the grants officer is required for project changes which may (1) alter the approved scope of the project, (2) substantially alter the design of the project, or (3) increase the amount of Federal funds needed to complete the project. No approval or disapproval of a project change pursuant to 40 CFR 30.900 or this section shall commit or obligate the United States to an increase in the amount of the grant or payments thereunder, but shall not preclude submission or consideration of a request for a grant amendment pursuant to 40 CFR 30.900–1.
[38 FR 12784, May 15, 1973, as amended at 40 FR 20083, May 8, 1975]
Programs for which a Federal grant is awarded by the Environmental Protection Agency to a State, municipal, interstate or intermunicipal agency, or to any public authority, agency or institution, under the Resource Conservation and Recovery Act, shall be the subject of public participation consistent with part 249 of this chapter.
(a) No person in the United States shall on the ground of sex be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving assistance under the Act.
(b) Grants under section 107 are awarded subject to the conditions—
(1) That the State shall acquire any land or interests therein necessary for such project to assure the elimination or control of acid or other mine water pollution; and
(2) That the State shall provide legal and practical protection to the project area to insure against any activities which will cause future acid or other mine water pollution.
Research and demonstration grants for projects involving construction shall be subject to the following conditions:
(a) The applicant will demonstrate to the satisfaction of the grants officer that he has or will have a fee simple or such other estate or interest in the site of the project, and rights of access, as the grants officer finds sufficient to assure undisturbed use and possession for the purpose of construction and operation for the estimated life of the project; and in the case of projects serving more than one municipality, that the participating communities have such interests or rights as the grants officer finds sufficient to assure their undisturbed utilization of the project for the estimated life of the project.
(b) Invitations for bids or requests for proposals shall be based upon a clear and accurate description of the technical requirements for the material, product, or service to be procured. Such description shall not, in competitive procurements, contain features which unduly restrict competition. “Brand name or equal” description may be used as a means to define the performance or other salient requirements of a procurement, and when so used the specific features of the named brand which must be met by offerors should be clearly specified.
(c) Positive efforts shall be made by the grantees to utilize small business and minority-owned business sources of supplies and services.
(d) Subagreements for construction work may be negotiated when advertising for competitive bids is not feasible; however, the grantee must adequately demonstrate its need to contract with a single or sole source. All such subagreements are subject to prior approval by the grants officer.
(e) Construction work will be performed by the fixed-price (lump sum) or fixed-rate (unit price) method, or a combination of these two methods, unless the grants officer gives advance written approval to use some other method of contracting. The cost-plus-a-percentage-of-cost method of contracting shall not be used. Adequate methods of advertising for and obtaining competitive sealed bids will be employed prior to award of the construction contract. The award of the contract will be made to the responsible bidder submitting the lowest responsive bid, which shall be determined without regard to State or local law whereby preference is given on factors other than the specification requirements and the amount of bid. The grantee must promptly transmit to the grants officer copies of bid protests, decisions on such protests, and related correspondence. The grants officer will cause appropriate review of grantee procurement methods to be made.
(f) On construction contracts exceeding $100,000, each bidder must furnish a bid guarantee equivalent to 5 percent of the bid price. In addition, the contractor awarded the contract must furnish performance and payment bonds, each of which shall be in an amount not less than 100 percent of the contract price. Construction contracts less than $100,000 shall follow the State or local requirements relating to bid guarantees, performance bonds, and payment bonds.
(g) The construction of the project, including the letting of contracts in connection therewith, shall conform to the applicable requirements of State, territorial, and local laws and ordinances to the extent that such requirements do not conflict with Federal laws.
(h) The grantee will provide and maintain competent and adequate engineering supervision and inspection for the project to insure that the construction conforms with the approved plans and specifications.
(i) Any construction contract must provide that representatives of the Environmental Protection Agency and the State, as appropriate, will have access to the work whenever it is in preparation or progress and that the contractor will provide proper facilities for such access and inspection. The contract must also provide that the grants officer, the Comptroller General of the United States , or any authorized representative shall have access to any books, documents, papers, and records of the contractor which are pertinent to the project for the purpose of making audit, examination, excerpts, and transcriptions thereof.
(j) The grantee agrees to construct the project or cause it to be constructed in accordance with the application, plans and specifications, and subagreements approved by EPA in the grant agreement or amendments.
(k) In addition to the notification of project changes pursuant to 40 CFR 30.900, a copy of any construction contract or modifications thereof, and of revisions to plans and specifications must be submitted to the grants officer.
[38 FR 12784, May 15, 1973, as amended at 40 FR 20083, May 8, 1975]
Every application for a research or demonstration grant will be evaluated by appropriate EPA staff in terms of relevancy and the applicable criteria set forth in §40.140. Only applications considered relevant to EPA research and demonstration objectives will receive further consideration and be subjected to additional review. Relevancy will be measured by program needs and priorities as defined in the Agency's current planned objectives. Relevancy, coupled with the results of technical review, will provide the basis for funding recommendations.
(a) New applications. Applications considered relevant to EPA research and demonstration objectives will be reviewed for technical merit by at least one reviewer within EPA and at least two reviewers outside EPA. Review by a National Advisory Council is statutorily required for radiation grants.
(b) Continuation applications. Continuation applications will be reviewed by appropriate EPA staff only. Recommendations for continuation of funding will be based on progress toward the accomplishment of the goals set forth for the project and continued Agency needs and priorities.
(a) The availability to the public of information provided to, or otherwise obtained by, the Administrator under this part shall be governed by part 2 of this chapter.
(b) An assertion of entitlement to confidential treatment of part or all of the information in an application may be made using the procedure described in §30.235(b). See also §§2.203 and 2.204 of this chapter.
(c) All information and data contained in the grant application will be subject to external review unless deviation is approved for good cause pursuant to 40 CFR 30.1000.
[38 FR 12784, May 15, 1973, as amended at 40 FR 20083, May 8, 1975; 41 FR 36918, Sept. 1, 1976]
The grant agreement will normally require the submission of a brief progress report after the end of each quarter of the budget period. A monthly progress report may be required for some demonstration projects, if set forth in the grant agreement. Progress reports should fully describe in chart or narrative format the progress achieved in relation to the approved schedule and project milestones. Special problems or delays encountered must be explained. A summary progress report covering all work on the project to date is required to be included with applications for continuation grants (see §40.165b). This report may be submitted one quarter prior to the end of the budget period.
A financial status report must be prepared and submitted within 90 days after completion of the budget and project periods in accordance with §30.635–3.
As provided in appendix B of 40 CFR part 30, immediate and full reporting of all inventions to the Environmental Protection Agency is required. In addition:
(a) An annual invention statement is required with each continuation application.
(b) A final invention report is required within 90 days after completion of the project period.
(c) When a principal investigator changes institutions or ceases to direct a project, an invention statement must be promptly submitted with a listing of all inventions during his administration of the grant.
[38 FR 12784, May 15, 1973, as amended at 40 FR 20083, May 8, 1975]
At the completion or termination of a project, the grantee will submit a listing of all items of equipment acquired with grant funds with an acquisition cost of $300 or more and having a useful life of more than 1 year.
The grantee shall submit a draft of the final report for review no later than 90 days prior to the end of the approved project period. The report shall document project activities over the entire period of grant support and shall describe the grantee's achievements with respect to stated project purposes and objectives. The report shall set forth in complete detail all technical aspects of the projects, both negative and positive, grantee's findings, conclusions, and results, including, as applicable, an evaluation of the technical effectiveness and economic feasibility of the methods or techniques investigated or demonstrated. The final report shall include EPA comment when required by the grants officer. Prior to the end of the project period, one reproducible copy suitable for printing and such other copies as may be stipulated in the grant agreement shall be transmitted to the grants officer.
To be eligible for a continuation grant within the approved project period, the grantee must:
(a) Have demonstrated satisfactory performance during all previous budget periods; and
(b) Submit no later than 90 days prior to the end of the budget period a continuation application which includes a detailed summary progress report, an estimated financial statement for the current budget period, a budget for the new budget period; and an updated work plan revised to account for actual progress accomplished during the current budget period.
The report recommends that agency officials ensure that accurate standards are used to assess conditions at the site and that laboratories use the correct analytic methods.
In related news, the start of the 112th Congress also featured the official closure of the Select Committee for Energy Independence and Global Warming, the only Congressional committee dedicated to tackling climate change.
Administrative - EPA Order 3120.1b Scientific misconduct, fabrication or knowing falsification of
data, research procedures, or data analysis is an offense which can result in immediate removal/ Suspension
and Debarment / Civil Sanctions / Fines / Local AUSA Must Decide If Fraud Meets Criminal
Prosecution Threshold / Culpability / Harm
Laboratory Fraud, Title 18 United States Criminal Code; Is It Criminal or Civil?
Fraud - 18 USC 1341 - 1343 , PROCEDURAL FRAUD, MEASUREMENT FRAUD
False Statements - 18 USC 1001
Conspiracy - 18 USC 371
Concealment of a felony - 18 USC 4 (misprision)
False Claims - 18 USC 287
Obstruction of Justice - 18 USC 1505
Penalties up to 20 years imprisonment for destroying, concealing or falsifying records with intent to
obstruct or impede a legal investigation
"Government is not reason; it is not eloquence; it is force. Like fire; it is a dangerous servant and a
fearful master." - George Washington
Affected Organ Systems: Gastrointestinal (Digestive), Hematological (Blood Forming), Hepatic (Liver)
Cancer Effects: None
Chemical Classification: Inorganic substances
Summary: Copper is a metal that occurs naturally throughout the environment, in rocks, soil, water, and air. Copper is an essential element in plants and animals (including humans), which means it is necessary for us to live. Therefore, plants and animals must absorb some copper from eating, drinking, and breathing. Copper is used to make many different kinds of products like wire, plumbing pipes, and sheet metal. U.S. pennies made before 1982 are made of copper, while those made after 1982 are only coated with copper. Copper is also combined with other metals to make brass and bronze pipes and faucets. Copper compounds are commonly used in agriculture to treat plant diseases like mildew, for water treatment and, as preservatives for wood, leather, and fabrics.
Prioritization of substances based on a combination of their frequency, toxicity, and potential for human exposure at National Priorities List (NPL) sites.
The MRL is an estimate of the daily human exposure to a hazardous substance that is likely to be without appreciable risk of adverse, non-cancer health effects over a specified duration of exposure. The information in this MRL serves as a screening tool to help public health professionals decide where to look more closely to evaluate possible risk of adverse health effects from human exposure.
Affected Organ Systems: Gastrointestinal (Digestive), Hematological (Blood Forming), Respiratory (From the Nose to the Lungs)
Cancer Effects: None
Chemical Classification: Inorganic substances
Summary: Zinc is one of the most common elements in the earth's crust. It is found in air, soil, and water, and is present in all foods. Pure zinc is a bluish-white shiny metal. Zinc has many commercial uses as coatings to prevent rust, in dry cell batteries, and mixed with other metals to make alloys like brass, and bronze. A zinc and copper alloy is used to make pennies in the United States . Zinc combines with other elements to form zinc compounds. Common zinc compounds found at hazardous waste sites include zinc chloride, zinc oxide, zinc sulfate, and zinc sulfide. Zinc compounds are widely used in industry to make paint, rubber, dyes, wood preservatives, and ointments.
Prioritization of substances based on a combination of their frequency, toxicity, and potential for human exposure at National Priorities List (NPL) sites.
The MRL is an estimate of the daily human exposure to a hazardous substance that is likely to be without appreciable risk of adverse, non-cancer health effects over a specified duration of exposure. The information in this MRL serves as a screening tool to help public health professionals decide where to look more closely to evaluate possible risk of adverse health effects from human exposure.
CEHPs include information about specific types of exposures to hazardous substances, exposure routes and pathways, health effects, and how to prevent and minimize exposures.
How do I contact ATSDR?
Further information can be obtained by contacting the ATSDR Information Center at:
Agency for Toxic Substances and Disease Registry
Division of Toxicology and Environmental Medicine
1600 Clifton Road NE, Mailstop F-32
Atlanta, GA 30333
Phone: 1-800-CDC-INFO 888-232-6348 (TTY)
Email: cdcinfo@cdc.gov
Tulelake voters slam KBRA nearly 8-2 , here . Abraham Lincoln said, "You can fool some of the people all of the time, and all of the people some of the time, but you can not fool all of the people all of the time."
U.S Congressman Wally Herger: Department of Interior's “Christmas Present” to the American Public: Lockup More Federal Land, posted to KBC 1/7/11. "...as the Obama Administration continues to claim that it has no plans to designate national monuments in response to a leaked memo describing potential monument sites (including two within our Northern California Congressional District), this latest action further undermines their credibility. Instead, these statements simply reinforce the Administration's “lock it up” agenda with respect to multiple-use of federal lands."
Dodd-Frank Act Creates Important Rights for Whistleblowers The Dodd-Frank Act gives whistleblowers with independent knowledge of a financial fraud by any company required to report to the SEC the potential of a big pay-out - up to 30% of any amount recovered over $1 million.
January 07, 2011 /24-7PressRelease/ -- Each year, corporate fraud costs the US government millions of dollars. In many cases, the fraud would never be discovered if it were not for the courageous acts of employees and others who come forward and report the fraud to the Securities and Exchange Commission (SEC).
In recognition of the importance of whistleblowers, a recent law passed by Congress includes key provisions to encourage more whistleblowers to report fraud by offering financial incentives to do so. Under the Dodd-Frank Wall Street Reform and Consumer Protection Act, those with independent knowledge of a financial fraud committed by a business required to report to the SEC or the US Commodity Futures Trading Commission (CFTC) may be entitled to a percentage, or "bounty," of the money recovered. The Act sets the bounty at 10 to 30 percent of any amount over $1 million recovered in a judicial or administrative action against the wrongdoer.
To be eligible for the bounty, the whistleblower must:
- Report the information to the SEC or CFTC
- The information must be derived from the independent knowledge or analysis of the whistleblower
- The government cannot have known about the fraud from any other source
The final amount awarded to a whistleblower under the Dodd-Frank Act is discretionary; the SEC or CFTC is given the authority to give a bounty according to the "significance" of the information provided and the level of assistance given by the whistleblower.
The Act also includes a provision protecting the whistleblower's identity. Under the law, the whistleblower can maintain anonymity by filing a claim through his or her lawyer. The whistleblower is not required to reveal his or her identity until it is known whether the information he or she provided will lead to a recovery and, subsequently, a bounty.
Act Expands on False Claims Act Qui Tam Actions
The Dodd-Frank Act was modeled after another important law for whistleblowers - the False Claims Act. Under the False Claims Act, whistleblowers who have independent knowledge of a financial fraud perpetuated against the government can bring a special type of lawsuit known as a "qui tam" action. In a qui tam action, the whistleblower is known as a "relator" and brings the lawsuit on behalf of the federal government. Whistleblowers who bring successful qui tam actions are entitled to a percentage of the amount recovered, which is typically 15 to 25 percent.
An important difference between the Dodd-Frank Act and False Claims Act is the scope of the law. The False Claims Act only applies to financial fraud committed against the government. The Dodd-Frank Act, on the other hand, is much broader and applies to any type of financial fraud committed by a company that falls within the jurisdiction of the SEC or CFTC.
The Dodd-Frank Act also broadly defines who is eligible to bring a whistleblower claim. As the law is written, nearly anyone who has ever had dealings with the company may qualify, including current and former employees, customers, suppliers and even board members. The SEC, however, has proposed a rule to limit the right of certain actors to bring claims, including those who received the information as a result of their duties to respond to the wrongdoing.
Wall Street, Other Businesses Worried
Not surprisingly, companies are not very excited about the Dodd-Frank Act. The biggest complaint against the law is that it undermines all of the money, time and resources companies expended creating internal compliance and complaint procedures for reporting fraud and abuse, as required under Sarbanes-Oxley. Companies fear that the potentially large financial incentives provided under the Act will encourage employees to file their complaints directly with their own attorneys or the SEC and not internally.
And, at least initially, it appears they are right: according to a Wall Street Journal report, the number of whistleblower suits filed after the passage of Dodd-Frank increased ten-fold. There also have been huge bounties paid out recently to whistleblowers who filed qui tam actions under the False Claims Act. For example, Cheryl Eckard, the whistleblower in the GlaxoSmithKline fraud case, is set to receive a $96 million payout for her qui tam action against the company. In the 2009 settlement between the government and Pfizer, the whistleblower received $80 million of the proceeds. In therecently settled Allergan case for the drug maker's aggressive off-label marketing campaign for Botox, the whistleblowers received $37 million.
Big business was hoping that the SEC would issue a rule requiring whistleblowers to first file an internal complaint before filing a claim with the SEC. However, the most the SEC was willing to do was propose a rule "encouraging" whistleblowers to first use the company's internal complaint procedure.
The SEC also proposed a rule that if an employee reports information to an internal compliance department first, then the information still will be considered "original" so long as the employee files a claim with the SEC within 90 days. In the past, if a whistleblower gave the information to an internal compliance department first, then the information was no longer considered original and the whistleblower would be ineligible for any cash rewards under the False Claims Act.
Filing a Whistleblower Action
The SEC is still in the rule-making process for implementing the provisions of the Dodd-Frank Act. The last day for public comments on the proposed rule was December 17 and the agency has stated that it expects the final rules to be in effect by the beginning of 2011.
Until these rules are finalized, it is not yet clear what process whistleblowers will have to follow in order to file a claim under the Act. In the meantime, those with independent knowledge of a fraud committed against the government have the option for filing a qui tam action.
Qui tam actions are filed in federal district court. In addition to filing the claim, claimants also are required to include a statement disclosing all of the information the claimant has of the fraud. Once the claim is filed, it is placed under seal for 60 days while the Department of Justice investigates the claim to determine if the government will join the action. The DOJ also may attempt to settle the claim, or in the alternative, also may seek to have it dismissed. The federal government does not have to join the claim for the qui tam action to proceed; however, having the government join the claim can make it stronger.
In general, to be eligible to file a qui tam claim, the information of the fraud cannot have been obtained from a public source or otherwise known to the government. If the information is from a public source, then the claimant still may be able to bring the qui tam action so long as he or she is an "original source" of the information. This means that the claimant has "direct and independent" knowledge of the information and the claimant provided the information to the government before filing the qui tam action.
Some of the most common types of fraud that may form the basis of a whistleblower claim include:
- Mischarging for goods or services not produced or delivered
- Off-label marketing of pharmaceuticals
- False negotiation
- Defective pricing
- Product and service substitution
- False certification of entitlement to government benefits
Current and former employees are the most common people to bring whistleblower claims, but they also may be brought by subcontractors, state and local governments, public interest groups and even corporations.
Conclusion
Those who are considering filing a whistleblower action under the False Claims Act or Dodd-Frank Act should contact an experienced attorney first. A lawyer knowledgeable in bringing these types of claims can help guide the individual through the claims process and explain their rights and obligations as a whistleblower.
For more information on qui tam actions, contact an experienced whistleblower attorney today.
Article provided by Watkins, Lourie, Roll & Chance, PC
Visit us at www.wlrlawfirm.com
A year after the dissolution of the Restoration Advisory Board for Hunters Point Shipyard, the Navy says it will introduce a new community involvement plan that it says emphasizes diversity.
The announcement follows the White House's reconvened interagency effort on environmental justice, which held its first meeting under the Obama administration in September . The group is creating a four-year road map to develop “stronger community relationships” and targets “overburdened communities.” The next meeting is set for April.
Jan 5, 2011 10:39 AM, BY ROBERT P. MADER Of CONTRACTOR's staff
Historic Reading of Constitution on House Floor
In one of the first major actions in the new 112th Congress, the House passed a rule this week reaffirming the commitment to limit the Chamber's actions to only those explicitly authorized by the U.S. Constitution. This rule requires that every introduced bill cite a specific provision in the Constitution that authorizes Congress to take the proposed action. In addition, House Republicans reasserted the essential role of the Constitution by reading it in its entirety on the House floor for the first time in history. Too often, Congress spends its time legislating on matters that it has no authority over and in certain cases, as with ObamaCare's individual health care mandate, passing laws that are simply unconstitutional. I believe we could avoid a great deal of unnecessary bureaucracy and intrusive regulation simply by returning to the constitutional concept of limited federal powers and upholding the 10th amendment, which declares, “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” Millions of Americans are clearly fed up with Congress exceeding its constitutional authority. I believe a renewed focus on the Constitution is long overdue and will help the House better represent the will of the people. - Congressman Wally Herger
Rep. Mike Simpson (R-Idaho) is chairman of the Interior, Environment and Related Agencies subcommittee of the full Appropriations Committee. He was the ranking GOP member of the panel in the last Congress.
Simpson's office, in a statement, said he will be “tasked with reducing spending levels that have grown out of control in recent years under Democrat control,” and that Simpson has his “eyes set on EPA” in particular.
“The EPA is the scariest agency in the federal government, an agency run amok,” Simpson said in a statement Friday.
New Guidance on CWA Jurisdiction Will Be Out for Public Review
“In the absence of updated regulations, courts will have
to make ad hoc determinations that run the risk of
transforming scientific questions into matters of law.
That is not the system Congress intended.”
—Justice Breyer dissenting in Carabell/Rapanos
see PACIFIC LEGAL FOUNDATION
PLF has made its mark as the nation's leading freedom fighter by winning important legal precedents in state and federal courts. Because it chooses cases where constitutional rights are at risk, PLF has made repeat appearances before the United States Supreme Court—and won several major cases—a record of success unmatched by any other public interest legal organization.
Nollan v. California Coastal Commission (1987) One of the most important property rights decisions in the Supreme Court's history, Nollan outlawed an egregious form of “shakedown” by land-use regulators; specifically, it said government may not condition the granting of a building permit on the landowner making some payment or surrender of property that has no connection to the impact of the proposed building project.
Keller v. State Bar of California (1990) A First Amendment case holding that a trade or professional organization to which professionals are legally bound to belong may not use their mandatory dues to fund ideologically based lobbying.
Suitum v. Tahoe Regional Planning Agency (1997) This ruling stopped regulators from demanding that an elderly, wheelchair-bound widow sell her minuscule transferable development rights in a nonexistent market before being able to seek judicial relief for denial of her right to build a home.
Palazzolo v. Rhode Island (2001) This ruling held that government is not relieved from its Fifth Amendment obligation to provide compensation for excessive regulations on private property merely because the property has changed hands since the regulations first took effect. PLF defended landowner Anthony Palazzolo who challenged the Rhode Island Coastal Resources Management Council.
Rapanos v. United States (2006) This decision narrowed the scope of federal Clean Water Act jurisdiction, so that landowners who are not close to “navigable waters” may not be subjected to federal micro managing of their property.
Parents Involved in Community Schools v. Seattle School District and Meredith v. Jefferson County Board of Education (2007) Held that school districts that voluntarily adopt student assignment plans that rely on race to determine which schools certain children may attend, violate the Equal Protection Clause of the United States Constitution. As amicus, PLF attorneys participated as second chair at oral argument assisting Meredith's attorney.
To recap briefly: In the spring of 2006 the Supreme Court Carabell/Rapanos decision created a great deal of uncertainty over which waters were subject to the Clean Water Act. It was a 4-1-4 decision. This split was unique in the history of Supreme Court decisions because the ‘1' (Justice Kennedy) sided with the plurality (Justice Scalia) in returning the case to the lower courts, but with the dissent (Justice Stevens) on many other points while describing his independent framework for a “significant nexus” test to use in determining jurisdiction. After analysis of this very divided opinion the U.S. Department of Justice's determined that a water body falls under the Clean Water Act if it meets either the plurality (Scalia) or Kennedy tests for jurisdiction. See ASWM Analysis of Supreme Court Decision in Carabell/Rapanos http://www.aswm.org/fwp/aswm_paper.pdf
In June of 2007 EPA and the U.S. Army Corps of Engineers issued guidance to help field staff determine which waters were jurisdictional. Following a public comment period they made some minor adjustments late in 2008. http://www.epa.gov/owow_keep/wetlands/guidance/CWAwaters.html This is the guidance currently in place. The guidance recently sent to OMB would also address jurisdiction: whether it would expand on the existing guidance or replace it is unknown and will remain so until the anticipated opportunity for public review and comment occurs and the guidance is finalized—sometime in the coming months.
The existing guidance is useful in identifying some broad considerations that should be included in making jurisdictional determinations that incorporate the constraints on jurisdiction created by Carabell/Rapanos. However, it provides little scientific or technical direction that would create certainty and specificity. The existing guidance requires the application of a great deal of best professional judgment on a case by case basis. This means there has and will continue to be variability and in what waters are identified as jurisdictional around the country.
What guidance can do is limited by law. Guidance cannot alter regulations. In this case it can only further define existing regulations that describe waters regulated under the Clean Water Act as constrained by the Carabell/Rapanos and (earlier) SWANCC decisions. Guidance is a good first step, but rulemaking will be required for any truly substantial effort to clarify and simplify criteria for identifying waters of the U.S. under the Clean Water Act. In a recent letter to the Council on Environmental Quality Chair Nancy Sutley a group of leading sportsmen and conservation organizations urged the Administration to pursue rulemaking to provide a revised definition of “waters of the U.S.” that is consistent with both law and science. They are not alone. In the Carabell/Rapanos decisions both Justice Roberts and Justice Breyer called for rulemaking. Their request was echoed by many industry groups including the National Association of Homebuilders and the National Stone, Sand and Gravel Association.
FOR the first time in its 68-year history, Stauffer Chemical Co., is publicly financing through the issuance of $15 million deb-entures and 325,000 shares of common stock with a par value of $10. The securities will be offered by a banking syndicate in New York headed by Morgan Stanley and Co. (details on page 3694).
In its prospectus accompanying the stock offer, Stauffer throws a good deal of light on its chemical operations which heretofore have not been known. Since 1946, for example, it has added $41.8 million to plants and equipment through a program of construction and acquisition. It is a basic producer of carbon disulfide, sulfuric acid, carbon tetrachloride, caustic soda, chlorine, and agricultural chemicals.
Substantial amounts of these basic items are used by Stauffer in processing a diversiiied list of other chemicals, and the remainder are sold to the chemical, rayon, cellophane, rubber, petroleum, glass, soap, paper, textile, drug, food, and mining ...
2000
November 13: On November 13, 2000 Novartis and AstraZeneca merged their agribusinesses to form Syngenta, the first global group focusing exclusively on agribusiness.
1999
Astra AB of Sweden and Zeneca Group PCL of UK merge, becoming AstraZeneca.
1998
Novartis announces the formation of NADI, the Novartis Agricultural Discovery Institute, one of the largest single research endeavours dedicated to agricultural genomics research and development.
1997
Zeneca attains the rights to chlorothalonil from ISK.
Zeneca acquires Mogen, a Netherlands-based plant Biotechnology Company.
Novartis attains the crop protection division of Merck & Co, adding the insecticide abamectin to its list of products.
1996
Zeneca offers the first GM tomato puree to customers. Tomatoes were enhanced to stay ripe in the field longer, resulting in better processing.
Zeneca Seeds and Cosun/ Royal VanderHave Group form the joint venture company Advanta.
Sandoz and Ciba merge to form Novartis in one of the largest corporate mergers in history.
1994
Zeneca is established after ICI demerges three of its businesses (Pharmaceuticals, Agrochemicals and Specialties) beginning in '93.
1990
Ciba-Geigy AG acquires Maag Group.
1987
ICI acquires Stauffer Chemical Company.
1985
ICI launches its insecticide Karate®.
1983
ICI Seeds is formed to add seed-breeding capability to the business.
1980
Ciba establishes a special biotechnology unit.
Sandoz acquired the Zaadunie group of Holland. Sluis & Groot (S&G)was one of the prominent marketing companies of Zaadunie. S&G is one of the three brandnames within Syngenta Seeds.
1978
Introduction of systemic fungicide Ridomil by Ciba-Geigy.
1976
Sandoz attains Northrup King.
1975
Sandoz acquires Rogers Seed Company, moving into the seed market.
1974
Ciba expands into the seeds business with the acquisition of the US-based Funk Seeds International.
1973
PPL becomes fully independent from ICI agricultural division.
1970
ICI establishes ICI Americas Inc.
Ciba and Geigy merge to form Ciba-Geigy.
1964
PPL becomes apart of ICI's Agriculture Division.
1956
Geigy introduces triazine-based herbicides (Simazine, Atrazine) allowing farmers to control weeds for the first time.
1954
A group of chemicals originally discovered in 1947 were re-evaluated by ICI, leading to the discovery and development of diquat and paraquat.
1953
PPL becomes wholly owned by ICI.
1940
Dr. Bill Templeman of ICI, at Jealott's Hill, discovers the selective properties of alphanapthylacetic acid, leading to the synthesis of the herbicides MCPA AND 2,4-D.
1939
Paul Müller, a Geigy researcher, discovers the insecticidal efficacy of DDT.
1937
Plant Production Limited (PPL) is formed as a fifty-fifty joint company between ICI and Cooper McDougall & Robertson Ltd.
1935
Geigy production of insecticides.
1928
ICI begins work on the Agricultural Research Station at Jealott's Hill in the UK.
1926
Imperial Chemical Industries is formed with merger of Brunner Mond Ltd, Nobel Industries, British Dyestuffs Coronation Ltd, and United Alkali Co. Ltd.
SUMMARY: Anyone who has been involved in a real estate transaction relating to commercial or industrial property has likely dealt with conducting “All Appropriate Inquiry” into the site, which generally includes the preparation of a Phase I Environmental Site Assessment and may include Phase II sampling work. All Appropriate Inquiry (“AAI”) is one necessary component of the “bona fide prospective purchaser” (“BFPP”) defense established under the 2002 Brownfields amendments to Comprehensive Environmental Response, Compensation and Liability Act (“CERCLA”). The BFPP defense is intended to protect property owners from liability for contamination that clearly occurred prior to their period of ownership. However, conducting AAI is not the only prerequisite to establishing a BFPP defense. The BFPP requirements beyond AAI are highlighted in , Ashley II of Charleston, LLC v. PCS Nitrogen, et al., 2010 U.S. Dist. LEXIS 104772 (D.S.C. Sep. 30, 2010), one of the first cases to address in detail the BFPP defense.
In this case, Ashley purchased property that had a long history of industrial use. In conjunction with that purchase, Ashley's environmental consultant performed Phase I and Phase II work. After the purchase, Ashley demolished many of the above-ground improvements on the property. When liability for contamination at the property was addressed, a significant battle between several potentially responsible parties arose. Ashley sought to take advantage of the BFPP defense to avoid liability. The elements of the BFPP defense are, in summary: (a) disposal of hazardous substance occurred prior to acquisition; (b) the purchaser conducted AAI; (c) the purchaser provided all required notices with respect to the discovery or release of any hazardous substance; (d) the purchaser exercises appropriate care with respect to hazardous substances found; (e) the purchaser cooperates with agencies; (f) the purchaser complies with institutional controls; (g) the purchaser complies with information requests or administrative subpoena; (h) the purchaser is not affiliated with a potentially responsible party. In the end, the court closely scrutinized each element of the test and determined that Ashley was not a BFPP.
Chesebrough-Pond's USA, Inc. represents such cornerstone household items as Vaseline Petroleum Jelly, Pond's beauty creams, Q-Tips swabs, and Ragú spaghetti sauce. With roots dating back to the turn of the century, the company had experienced constant growth and profitability, until it was destabilized by its acquisition of the Stauffer Chemical Company, which in turn led to its takeover by Unilever N.V. in 1986.
Chesebrough made a surprising $1.25 billion bid for Stauffer Chemical Company in 1985. Makers of weed killers, pesticides, and flame retardants, Stauffer had been suffering from a lackluster performance at the time.
Lucas announces new House Ag Committee
Chairman-elect Frank Lucas (R-OK) named six members to serve as subcommittee chairmen of the House Agriculture Committee Dec. 21. He also released a complete list of the Republican roster for the 112th Congress and named Rep. Bob Goodlatte (R-VA) as vice chairman of the full committee.
"Our subcommittee chairmen have demonstrated a commitment to ensuring the success of American agriculture and rural economies. They are ready to join me in addressing the challenges that farmers, ranchers, and small businesses face across rural America. The next year will be an exercise in educating our freshmen members on both sides of the aisle, providing oversight of the administration and building a strong working relationship as we prepare to reauthorize the farm bill in 2012," said Lucas.
Lucas designated the following Subcommittee Chairmen and their jurisdictions (listed alphabetically by subcommittee name):
--Rep. Glenn "GT" Thompson (PA-5), Conservation, Energy, and Forestry.
Jurisdiction: Soil, water, and resource conservation, small watershed program, energy and bio-based energy production, rural electrification, forestry in general and forest reserves other than those created from the public domain.
--Rep. Jeff Fortenberry (NE-1), Department Operations, Oversight, and Credit.
Jurisdiction: Agency oversight, review and analysis, special investigations, and agricultural credit.
--Rep. K. Michael Conaway, (TX-11), General Farm Commodities and Risk Management.
Jurisdiction: Program and markets related to cotton, cottonseed, wheat, feed grains, soybeans, oilseeds, rice, dry beans, peas, lentils, the Commodity Credit Corporation, risk management, including crop insurance, commodity exchanges, and specialty crops.
--Rep. Tom Rooney (FL-16), Livestock, Dairy, and Poultry.
Jurisdiction: Livestock, dairy, poultry, meat, seafood and seafood products, inspection, marketing, and promotion of such commodities, aquaculture, animal welfare, and grazing.
--Rep. Jean Schmidt (OH-2), Nutrition and Horticulture.
Jurisdiction: Food stamps, nutrition and consumer programs, fruits and vegetables, honey and bees, marketing and promotion orders, plant pesticides, quarantine, adulteration of seeds and insect pests, and organic agriculture.
--Rep. Timothy V. Johnson (IL-15), Rural Development, Research, Biotechnology, and Foreign Agriculture.
Jurisdiction: Rural Development, farm security and family farming matters, biotechnology, foreign agriculture assistance, and trade promotion programs, generally.
Republican members of the agriculture committee are Chairman-elect Frank D. Lucas (OK), Vice Chairman-elect Bob Goodlatte (VA), Timothy V. Johnson (IL), Steve King (IA), Randy Neugebauer (TX), K. Michael Conaway (TX), Jeff Fortenberry (NE), Jean Schmidt (OH), Glenn Thompson (PA), and Tom Rooney (FL). New members include Rick Crawford (AR), Scott DesJarlais (TN), Renee Elmers (NC), Stephen Fincher (TN), Bob Gibbs (OH), Chris Gibson (NY), Vicky Hartzler (MO), Tim Huelskamp (KS), Randy Hultgren (IL), Reid Ribble (WI), Martha Roby (AL), Bobby Schilling (IL), Austin Scott (GA), Steve Southerland (FL), Marlin Stutzman (IN), and Scott Tipton (CO).
•NCP states that a site may be deleted from the NPL where no further response is appropriate
•EPA interprets this criteria to mean that a site may be deleted when all removals and remedial actions are completed
–all cleanup goals have been achieved, and
–all institutional controls are in place
•Note that Operation &Maintenance (O&M) is not defined as a response by the NCP; therefore. a site with continuing O&M can be deleted.
•EPA must determine, in consultation with the State, that oneof the following criteria has been met:
��Responsible or other parties have implemented all response actions required;
��All appropriate Fund-financed response under CERCLA has been implemented, and no further response action by responsible parties is appropriate; or
��The remedial investigation has shown that the release(s) poses no significant threat to public health or environment, and therefore, taking of remedial measures is not appropriate.
•The Deletion process may begin once a site has achieved the site construction completion milestone
•Regional staff prepare a deletion docket containing all of the pertinent information supporting the deletion recommendation including the letter of concurrence from the State. A site can not be deleted if the state does not concur
•Deletion dockets should be available to the public at the EPA Regional office and a local repository. Docket information should also be electronically available or referenced in the Federal Docket Management System (FDMS)
•Regions publish the Notice of Intent to Delete (NOID) in the Federal Register (FR). The NOID informs the public of EPA’s intention to delete a site from the NPL. The NOID provides for a 30 day public comment period
•Sites can be deleted using a direct final notice procedure
•This procedure is to publish both a NOID and NOD in the same FR Notice, and declare that the NOD will become effective unless EPA receives adverse or critical comments during the public comment period
–Eliminates second round of reviews, thereby reducing the amount of internal time needed to finalize the deletion process
–If adverse or critical comments are not received, the deletion becomes effective without any further EPA action
•If adverse comments are received, the Region must issue a notice in the FR withdrawing the deletion. The withdrawal notice must be published in the FR within 60 days of the original notice
•Sites can be deleted using a direct final notice procedure
•This procedure is to publish both a NOID and NOD in the same FR Notice, and declare that the NOD will become effective unless EPA receives adverse or critical comments during the public comment period
–Eliminates second round of reviews, thereby reducing the amount of internal time needed to finalize the deletion process
–If adverse or critical comments are not received, the deletion becomes effective without any further EPA action
•If adverse comments are received, the Region must issue a notice in the FR withdrawing the deletion. The withdrawal notice must be published in the FR within 60 days of the original notice
U.S. Environmental Protection Agency
Office of Solid Waste and Emergency Response
Federal Facilities Restoration & Reuse Office
Website:http://www.epa.gov/fedfac
Office of Superfund Remediation & Technology Innovation
Website:http://www.epa.gov/superfund
Office of Enforcement and Compliance Assurance
Federal Facilities Enforcement Office
Website: http://www.epa.gov/compliance/federalfacilities
Federal Facilities Environmental Stewardship and Compliance Assistance Center
Website: http://www.fedcenter.gov
Claudia Copeland Specialist in Resources and Environmental Policy
The principal federal program to aid municipal wastewater treatment plant construction is authorized in the Clean Water Act (CWA). Established as a grant program in 1972, it now capitalizes state loan programs. Authorizations since 1972 have totaled $65 billion, while appropriations have totaled $85 billion. It has represented 25-30% of total funds appropriated to the Environmental Protection Agency (EPA) in recent years.
In appropriations legislation, funding for EPA wastewater assistance is contained in the measure providing funds for the Department of the Interior, Environment, and Related Agencies, which includes EPA. Within the portion of that bill which funds EPA, wastewater treatment assistance is specified in an account now called State and Tribal Assistance Grants (STAG). Three trends in the funding of this account are most prominent: inclusion of non-infrastructure environmental grants to states, beginning in FY1993; increasing number and amount of special purpose grants since FY1989; and the addition of grant assistance for drinking water treatment projects in FY1997. This report summarizes, in chronological order, congressional activity to fund items in this account since 1987.
Prior to the 1987 amendments, wastewater treatment assistance was provided in the form of grants made to municipalities. The federal share of project costs was generally 55%; state and local governments were responsible for the remaining 45%. The 1987 amendments altered this arrangement by replacing the traditional grant program with one that provides federal grants to capitalize state clean water loan programs, or state revolving funds (SRFs). Appropriations for the clean water SRF program through FY2010 have totaled $33 billion. As a general matter, states and cities support the program changes made by the 1987 amendments and the shift to a loan program that was intended to provide long-term funding for water quality and wastewater construction activities. However, the change means that local communities now are responsible for 100% of projects costs, rather than 45%, because they are required to repay loans to states. The greater financial burden of the act's loan program on some cities has caused some to seek continued grant funding.
This has been particularly evident in the appropriations process where, in recent years, Congress has reserved as much as 30% of funds in the STAG account for special purpose grants directed to specified communities. Since FY2000, appropriators have awarded earmarks to a larger total number of projects, resulting in more communities receiving such grants, but at the same time receiving smaller amounts of funds, on average. Most of the funded projects are not authorized in the Clean Water Act or the Safe Drinking Water Act. State water quality officials, state infrastructure financing officials, and EPA have objected to this practice, since it reduces the amount of funding for state SRF programs. Since FY1997, the STAG account also has been used to fund a drinking water SRF grant program established by Congress in 1996. Appropriations for the drinking water SRF program through FY2010 have totaled $14.5 billion.
The statutory protections found at CERCLA § 107(r)(1) and §101(40) are self-implementing, and EPA generally will not be involved with facility-specific transactions or determinations of BFPP status. There may be instances on a site-specific basis, however, where EPA determines that it would be necessary and appropriate to address a tenant’s liability concerns through an existing tool or policy (e.g., a comfort/status letter or a prospective lessee agreement).7 In addition, EPA may use such tools on a case-by-case basis where it is appropriate to address liability concerns of tenants not covered by this guidance.
(a) Basis. This part implements the Program Fraud Civil Remedies Act of 1986, Public Law No. 99–509, sections 6101–6104, 100 Stat. 1874 (October 21, 1986), to be codified at 31 U.S.C. 3801–3812. 31 U.S.C. 3809 of the statute requires each authority head to promulgate regulations necessary to implement the provisions of the statute.
(b) Purpose. This part (1) establishes administrative procedures for imposing civil penalties and assessments against persons who make, submit, or present, or cause to be made, submitted, or presented, false, fictitious, or fraudulent claims or written statements to the Environmental Protection Agency, and (2) specifies the hearing and appeal rights of persons subject to allegations of liability for such penalties and assessments.
1 Section 120(b) of the Superfund Amendments and Reauthorization Act of 1986 (P.L. 99–499)
provides:
(b) LIMITED GRANDFATHER.—Section 120 of CERCLA shall not apply to any response action
or remedial action for which a plan is under development by the Department of Energy on the
date of enactment of this Act [October 17, 1986] with respect to facilities—
(1) owned or operated by the United States and subject to the jurisdiction of such Department;
(3) published in the National Priorities List.
In preparing such plans, the Secretary of Energy shall consult with the Administrator of the
Environmental Protection Agency.
Effective Date Section 121(b) of Pub. L. 99-499 provided that: ``With respect to section 121 of CERCLA [this section], as added by this section-- ``(1) The requirements of section 121 of CERCLA shall not apply to any remedial action for which the Record of Decision (hereinafter in this section referred to as the `ROD') was signed, or the consent decree was lodged, before date of enactment [Oct. 17, 1986]. ``(2) If the ROD was signed, or the consent decree lodged, within the 30-day period immediately following enactment of the Act [Oct. 17, 1986], the Administrator shall certify in writing that the portion of the remedial action covered by the ROD or consent decree complies to the maximum extent practicable with section 121 of CERCLA. Any ROD signed before enactment of this Act [Oct. 17, 1986] and reopened after enactment of this Act to modify or supplement the selection of remedy shall be subject to the requirements of section 121 of CERCLA.''
In Levins Metal Corp. v. Parr-Richmond Terminal Co., 817 F.2d 1448 (9th Cir.1987), where the court applied California state law in determining successor liability under CERCLA. There, the court explained that when the issue deals with the "capacity to be sued" rather than the "imposition of liability," state law applies.
We have recognized two other exceptions to the general rule: (1) when review is necessary to prevent miscarriage of justice or to preserve the integrity of the judicial process, and (2) when a new issue arises during a pending appeal because of a change in the law. See Bolker, 760 F.2d at 1042.
Presidential Documents
Federal Register
Vol. 47, No. 137
Friday, July 16, 1982
Title 3 -- Executive Order 12372 of July 14, 1982
The President Intergovernmental Review of Federal Programs
By the authority vested in me as President by the Constitution and laws of the United States of America, including Section 401(a) of the Intergovernmental Cooperation Act of 1968 (42 U.S.C. 4231(a)) and Section 301 of Title 3 of the United States Code, and in order to foster an intergovernmental partnership and a strengthened federalism by relying on State and local government coordination and review of proposed Federal financial assistance and direct Federal development, it is hereby ordered as follows:
Section 1. Federal agencies shall provide opportunities for consultation by elected officials of those State and local governments that would provide the non-Federal funds for, or that would be directly affected by, proposed Federal financial assistance or direct Federal development.
Sec. 2. To the extent the States, in consultation with local general purpose governments, and local special purpose governments they consider appropriate, develop their own processes or refine existing processes for State and local elected officials to review and coordinate proposed Federal financial assistance and direct Federal development, the Federal agencies shall, to the extent permitted by law:
(a) Utilize State processes to determine official views of State and local officials.
(b) Communicate with State and local elected officials as early in the program planning cycle as is reasonably feasible to explain specific plans and actions.
(c) Make efforts to accommodate State and local elected officials' concerns with proposed Federal financial assistance and direct Federal development that are communicated through the designated State process. For those cases where the concerns cannot be accommodated, Federal officials shall explain the bases for their decision in a timely manner.
(d) Allow the States to simplify and consolidate existing Federally required State plan submissions. Where State planning and budgeting systems are sufficient, and where permitted by law, the substitution of State plans for Federally required State plans shall be encouraged by the agencies.
(e) Seek the coordination of views of affected State and local elected officials in one State with those of another State when proposed Federal financial assistance or direct Federal development has an impact on interstate metropolitan urban centers or other interstate areas. Existing interstate mechanisms that are redesignated as part of the State process may be used for this purpose.
(f) Support State and local governments by discouraging the reauthorization or creation of any planning organization which is Federally-funded, which has a Federally-prescribed membership, which is established for a limited purpose, and which is not adequately representative of, or accountable to, State or local elected officials.
Sec. 3. (a) The State process referred to in Section 2 shall include those where States delegate, in specific instances, to local elected officials the review, coordination, and communication with Federal agencies.
(b) At the discretion of the State and local elected officials, the State process may exclude certain Federal programs from review and comment.
Sec. 4. The Office of Management and Budget (OMB) shall maintain a list of official State entities designated by the States to review and coordinate proposed Federal financial assistance and direct Federal development. The Office of Management and Budget shall disseminate such lists to the Federal agencies.
Sec. 5. (a) Agencies shall propose rules and regulations governing the formulation, evaluation, and review of proposed Federal financial assistance and direct Federal development pursuant to this Order, to be submitted to the Office of Management and Budget for approval.
(b) The rules and regulations which result from the process indicated in Section 5(a) above shall replace any current rules and regulations and become effective April 30, 1983.
Sec. 6. The Director of the Office of Management and Budget is authorized to prescribe such rules and regulations, if any, as he deems appropriate for the effective implementation and administration of this Order and the Intergovernmental Cooperation Act of 1968. The Director is also authorized to exercise the authority vested in the President by Section 401(a) of that Act (42 U.S.C. 4231(a)), in a manner consistent with this order.
Sec. 7. The Memorandum of November 8, 1968, is terminated (33 Fed. Reg. 16487, November 13, 1968). The Director of the Office of Management and Budget shall revoke OMB Circular A-95, which was issued pursuant to that Memorandum. However, Federal agencies shall continue to comply with the rules and regulations issued pursuant to that Memorandum, including those issued by the Office of Management and Budget, until new rules and regulations have been issued in accord with this Order.
Sec. 8. The Director of the Office of Management and Budget shall report to the President within two years on Federal agency compliance with this Order. The views of State and local elected officials on their experience with these policies, along with any suggestions for improvement, shall be included in the Director's report.
THE WHITE HOUSE
July 14, 1982
1 Section 121(b) of the Superfund Amendments and Reauthorization Act of 1986 (P.L. 99–499)
provides:
(b) EFFECTIVE DATE.—With respect to section 121 of CERCLA, as added by this section—
(1) The requirements of section 121 of CERCLA shall not apply to any remedial action
for which the Record of Decision (hereinafter in this section referred to as the ‘‘ROD’’) was
signed, or the consent decree was lodged, before date of enactment [October 17, 1986].
(2) If the ROD was signed, or the consent decree lodged, within the 30-day period immediately
following enactment of the Act, the Administrator shall certify in writing that the
portion of the remedial action covered by the ROD or consent decree complies to the maximum
extent practicable with section 121 of CERCLA.
Any ROD signed before enactment of this Act and reopened after enactment of this Act to modify
or supplement the selection of remedy shall be subject to the requirements of section 121
of CERCLA.
IRON MOUNTAIN MINE
EPA ID: CAD980498612
OU 01
REDDING, CA
10/03/1986
DECLARATIONS: CONSISTENT WITH THE COMPREHENSIVE ENVIRONMENTAL RESPONSE, COMPENSATION, AND LIABILITY ACT OF
1980 (CERCLA) AND THE NATIONAL OIL AND HAZARDOUS SUBSTANCES POLLUTION CONTINGENCY PLAN (NCP) 40
CFR PART 300 ET.SEQ., I HAVE DETERMINED THAT THE OPERABLE UNIT REMEDY PREVIOUSLY IDENTIFIED IS A
COMPONENT OF WHAT WILL BE THE APPROPRIATE FUND-FINANCED ACTION FOR THIS SITE IN ACCORDANCE WITH
SECTION 300.68 (J) OF THE NCP. THESE ARE COMPONENTS OF A FINAL EPA REMEDY THAT WILL PROVIDE
ADEQUATE PROTECTION OF THE PUBLIC HEALTH AND WELFARE AND THE ENVIRONMENT
When you're being sued for debt, one of your first questions should be whether or not the court has "jurisdiction" (the right and power to decide the case against you). There are two kinds of jurisdiction you should consider: "personal" jurisdiction and "subject matter" jurisdiction. Although the two aren't always so neatly differentiated, the type of jurisdiction you're considering can make a lot of difference.
Personal Jurisdiction
Personal jurisdiction (in legalese this is often called " in personam jurisdiction") is the court's right to consider cases involving you personally. In general, in order for a court to have personal jurisdiction, you must have received adequate notice of the suit and must have sufficient links to the jurisdiction.
Adequate Notice
In consumer cases, "adequate notice" almost always means "service" of the summons upon you personally. That means a process server, often a deputy with the local government, but maybe just as often a private individual (normally cannot be a party to the suit or their lawyer), must hand you, or offer to hand you, the summons. If the process server does hand you or offer the summons, you have been served, and you normally have adequate notice at that point. A process server can also leave the summons with an adult member of your household at your residence.
Sufficient Connection to the Jurisdiction
For a court to assert jurisdiction over you, you must also have an adequate connection to the jurisdiction for it to be "fair" to haul you into court there. In many cases involving contracts, the contract will specify (as is allowed) that a certain court will have jurisdiction. In cases involving debt collectors, however, the Fair Debt Collection Practices Act (FDCPA) specifies that if you are a consumer, you can be sued on a debt in only two places: where you actually signed the contract; or where you currently reside . Or, if it involves real property, only in the jurisdiction of the property. 16 U.S.C. Section 1692i(a).
Because the FDCPA is a statute (written law), whereas the requirements of personal jurisdiction are constitutional, it is conceivable (but unlikely) that it could be unfair to bring suit where you signed the contract.
Subject Matter Jurisdiction
Subject matter jurisdiction involves the power of the court to hear cases like yours. Federal cases, for example, must have some federal basis for jurisdiction. In cases involving debt, this is quite unlikely, so you will not likely be sued in federal court. The FDCPA, on the other hand, does provide for federal jurisdiction, so you could bring a suit in any federal or state court on a claim under that Act.
A Gray Area
Sometimes personal jurisdiction can be the same as subject matter jurisdiction. For example, as I noted above, the FDCPA requires that claims against consumers by debt collectors be brought in specified jurisdictions. That's personal to you, of course, but does it also deprive the court of subject matter jurisdiction? It might, but you'd be better off considering it personal for purposes of contesting it.
Contesting or Disputing Jurisdiction
The main rule to keep in mind is that if you answer the petition without contesting jurisdiction from the very beginning, you will have "waived" your objections to personal jurisdiction . You must assert your defense to personal jurisdiction either separately in a "limited entry of appearance" for the purpose of hearing your motion to dismiss (some jurisdictions have eliminated the "limited entry" and just allow you to file a motion to dismiss). Or you can simply not respond to the suit and attack a judgment if it is entered against you in a court that does have jurisdiction. I see this as risky, but it might be necessary if you are being sued in a distant jurisdiction.
Notice that I said you could waive your objection to personal jurisdiction. That's because it applies to you. Subject matter jurisdiction, on the other hand, cannot be waived, and you can attack that at any time.
A Hint
The Rules of Civil Procedure for your jurisdiction will specify what other kinds of motions can be filed and need to be filed before answering the petition. A good place to start is by looking under "motions to dismiss" in your Rules.
If you are being harassed or sued for debt, you can get a lot of help, much of it free, from my website at: http://yourlegallegup.com .
I Received a J.D. from Washington University Law School in 1989 and practiced law in St. Louis city and county (federal, state and local courts) for almost fifteen years, the last several of which were focused almost exclusively on debt litigation. My mission is to protect ordinary people from being taken advantage of by the debt collectors. Sign up for a free report and more help for people struggling with debt.
Integrated Early Transfer Disposal Department of the Army, 2002
The process to determine if a site’s
groundwater may naturally be of poor
quality is remarkably simple. It appears
difficult because the procedures are
scattered throughout the regulations
and are often misinterpreted. All that is
required is to determine if groundwater
from a background location contains
“naturally occurring contaminants” in
excess of their respective GCTL. It is
not necessary to reclassifr the aquifer.
The applicable regulations are found
in Chapter 62-780.200(5) F.A.C.,
Chapter 62-780.200(35) F.A.C. and
Chapter 62-780.680(2) (c) (1) F.A.C.
Currently, a GCTL of 0.3 mg/L is
being used to determine if groundwater
must be remediated through actions
like pump and treat. This GCTL is not
health based and ignores the possibility
that the groundwater at the site is
unacceptable for consumption because
of the presence of “naturally occurring
contaminants.”
Iron is an essential nutrient for humans
as it is a constituent of hemoglobin, and
a number of enzymes. The adequate
intake of iron for infants from birth to
6 months is estimated to be 0.27
milligram per day (mg/day). This
value was based upon the average
iron concentration in human milk of
0.35 mg/LA The iron recommended
daily allowance (RDA) ranges from
a low of 7 mg/day for children age
1 through 3 years to a high of 27
mg/day for pregnant w5omen. The
RDA range is the reason that overthe-
counter multimineral supplements
(e.g., Advanced Formula Centrum®)
show that each tablet has 18 mg of iron
and note that this value represents 100
percent of the “Daily Value.” The iron
concentration in the empty human adult
stomach after taking one multimineral
tablet with one 8-ounce glass of water is
therefore 75 mgIL. This concentration
is 250 times the GCTL in Chapter
62-777 F.A.C. of 0.3 mg/L.
Clearly the iron GCTL of 0.3 mg/L is
not health based and does not consider
the fact that this compound is an
essential nutrient. A more appropriate
approach, for essential nutrients, is
to develop GCTLs that take into
consideration the “risk of inadequacy”
and the “risk of adverse effects.”
Unfortunately, the equations used
in Chapter 62-777 F.A.C. are not
appropriate if the compound is an
essential nutrient; therefore, an alternate
approach is needed.
There is a problem when a GCTL must
be developed for an essential nutrient
like iron. Simply put, the conventional
approach used to develop the GCTL
does not consider the adverse health
effects of being exposed to too small an
amount of an essential nutrient. The
conventional equations used to generate
GCTLs do address the “risk of adverse
effects,” but do not address what is
known as the “risk of inadequacy.”
This matter is a current concern to the
U.S. Environmental Protection Agency
(EPA) and new guidance was released
last y6ear.
Exhibit 2-4
Summary of Region IV LUCAP
Requirements
1. A LUC implementation plan, the objectives for
the area, and the particular controls or
mechanisms to be implemented.
2. The program and point-of-contact responsible for
monitoring, maintenance, and enforcement.
3. A commitment by the facility to request funds for
maintaining LUCs.
4. Quarterly onsite monitoring unless another
monitoring frequency is approved.
5. Notification when a major change in land use is
anticipated.
6. Annual field inspections.
7. Certification of continued compliance in an
annual report.
8. Notification upon discovery of unauthorized
“major change in land use.”
Exhibit 2-6
Summary of Region X
Facility-Wide IC Requirements
A. Develop a comprehensive facility-wide approach
for establishing, implementing, enforcing, and
monitoring ICs at the facility. This approach will
frequently include a Base Master Plan or a facilitywide
land use plan, installation maps, a
comprehensive permitting system, and other
installation policies and orders.
B. Submit to EPA and the state a monitoring report
on the status of the ICs within six months of
signature on the decision document with an
updated monitoring report submitted annually
thereafter.
C. Notify EPA and the state immediately upon
discovery of any activity that is inconsistent with
the operable unit-specific institutional control
objectives for the site, or of any change in the
land use or land use designation of a site
addressed under item (A).
D. Identify a point of contact for implementing,
maintaining, and monitoring institutional controls.
E. Request and obtain funding to institute and
maintain institutional controls. (This requirement
can be dropped if the facility can demonstrate a
duplicate or similar requirement in a Federal
Facility Agreement or similar document.)
F. Notify EPA and the state at least six months prior
to any transfer, sale, or lease of any property
subject to institutional controls required by an
EPA decision document.
G. Restrict the deletion or termination of any
institutional control unless EPA and the state
have concurred in the deletion or termination.
EPA has statutory obligations related to the cleanup and property transfer of installations on the NPL
–CERCLA Section 120
•Privatization is expected to be used more frequently for environmental cleanup
–DoD believes privatization is a better way of doing business(e.g., NTC Orlando = Baldwin Park, a 2006 Phoenix Award winner)
–To date, early transfer with privatization has onlybeen done at non-NPL facilities
–NPL sites differ significantly from non-NPL sites because:
•EPA must approve the early transfer
•NPL sites generally will have a Federal Facility Agreement (FFA)in place
•Certain provisions of CERCLA specifically apply to NPL sites, such as EPA and DoD joint selection of cleanup remedy
•NPL sites may have greater contamination
Exhibit 2-7
Relevant DOE Orders
DOE Order # Title Objective
5400.1 General Env. Protection Prog. To establish environmental protection program
requirements, authorities, and responsibilities for DOE
operations for assuring compliance with applicable
federal, state, and local environmental protection laws
and regulations, executive orders, and internal
Department policies.
5400.5 Rad. Protect. of the Public & Env. To operate DOE facilities and conduct its activities so
that radiation exposures to members of the public are
maintained within the limits established in this Order and
to control radioactive contamination through the
management of real and personal property. It is also a
DOE objective that potential exposures to members of
the public be as far below the limits as is reasonably
achievable (ALARA) and that DOE facilities have the
capabilities, consistent with the types of operations
conducted, to monitor routine and non-routine releases
and to assess doses to members of the public.
4300.1C Real Property Management To establish Department-wide policies and procedures for the
acquisition, use inventory, and disposal of real property or
interests therein.
435.1 Radioactive Waste Mgmt. To establish policies, guidelines, and minimum
requirements by which DOE manages its radioactive and
mixed waste, and contaminated facilities. This Order
replaced Order 5820.2A.
430.1A Life Cycle Asset Management To plan, acquire, operate, maintain, and dispose of
physical assets as valuable national resources.
Stewardship of these assets shall be accomplished in a
safe and cost-effective manner to meet the DOE mission,
and to ensure protection of workers, the public, and the
environment.
4320.1B Site Development Planning Identifies the analyses that must be conducted in order for DOE
property to be considered excess and available for transfer to
State Regulations
Many state agencies have policies or regulations on the use of institutional controls in remedies
conducted in their state. At the time that this document was developed, 42 states referenced the
use of institutional controls in the state’s environmental regulations.14 These regulations may be more
restrictive or specific than the federal regulations that apply at the facility. Before selecting any remedy
that will include the use of institutional controls, facility personnel should consult and coordinate with
state environmental regulators, local redevelopment authorities, and state real estate attorneys to
determine the state’s position on the use of institutional controls. For example, Tennessee has
developed a policy on the use of “perpetual institutional controls.”15 This policy outlines the state’s
requirements for RODs that will rely on perpetual institutional controls. This policy originally applied to
the remediation of a uranium burial ground at the Oak Ridge Reservation, but was made applicable to
all onsite areas through a state policy on “Natural Attenuation and ARAR Waivers for Oak Ridge
14 Based on a search of the ENFLEX database of state and federal regulations; February, 1999. The list of
42 states includes : Alabama, Alaska, Arizona, Colorado, Connecticut, Delaware, Florida, Idaho, Illinois, Indiana,
Iowa, Kansas, Kentucky, Louisiana, Maine, Massachusetts, Michigan, Mississippi, Missouri, Montana, Nebraska,
Nevada, New York, New Jersey, New Mexico, North Dakota, North Carolina, Ohio, Oklahoma, Oregon, Pennsylvania,
Puerto Rico, Rhode Island, South Carolina, Tennessee, Texas, Utah, Vermont, Virginia, Washington, West Virginia,
and Wyoming.
15 State of Tennessee, Guidance Policy on Perpetual Institutional Controls, September 1, 1997.
In Dept. of Toxic Substances Control v. Hearthside Residential Corp. , No. 09-55389 (9 th Cir. July 22, 2010), the Ninth Circuit has clarified the issue of whether “owner and operator” status under CERCLA is defined at the time cleanup costs are incurred or instead at the time that a recovery lawsuit seeking reimbursement is filed, a question of first impression. The Ninth Circuit held that current ownership is measured at the time of cleanup, and therefore “the owner of the property at the time cleanup costs are incurred is the current owner for purposes of determining CERCLA liability.”
The litigation relates to undeveloped wetlands known as the Fieldstone Property, and certain adjacent residential parcels (“Residential Site”). The defendant, Hearthside Residential Corporation (“Hearthside”), purchased the Fieldstone Property in 1999 knowing that the property was contaminated with polychlorinated biphenyls (“PCBs”). In 2002, Hearthside entered into a consent order with the State of California, Department of Toxic Substances Control (“DTSC”), in which Hearthside agreed to remediate the PCB contamination on the Fieldstone Property. DTSC further alleged that the PCBs from the Fieldstone Property had migrated onto the adjacent Residential Site. Hearthside disputed DTSC's allegation, and remediated only the Fieldstone Property. DTSC certified Hearthside's completion of the Fieldstone Property on December 1, 2005, and Hearthside sold that property later that month. Meanwhile, DTSC contracted to remediate the Residential Site and incurred cleanup expenses between July 2002 and October 2003, while Hearthside still owned the Fieldstone property. In October, 2006, DTSC filed a complaint against Hearthside seeking reimbursement for the Residential Site cleanup, among other relief. Thus, Hearthside owned the Fieldstone Property at the time of DTSC's cleanup, but not when DTSC filed its complaint.
DTSC's complaint was based, in relevant part, on (1) DTSC's allegation that the Fieldstone Property was the source of the contamination on the Residential Site, and (2) the fact that Hearthside owned the Fieldstone Property at the time the Residential Site was cleaned. CERCLA imposes strict liability for environmental contamination upon four classes of potentially responsible parties, one of which is the “owner and operator of a vessel or a facility.” 42 U.S.C. § 9607(a)(1). Other courts have defined this category of responsible parties to refer to “current” owners or operators. Hearthside , citing Carson Harbor Vill., Ltd. v. Unocal Corp ., 270 F.3d 863, 881 (9th Cir. 2001) (en banc); accord , e.g. , United States v. Capital Tax Corp. , 545 F.3d 525, 530 (7th Cir. 2008); ITT Indus., Inc. v. BorgWarner, Inc. , 506 F.3d 452, 456 (6th Cir. 2007). However, CERCLA does not define the date from which to measure ownership. The district court granted partial summary judgment in favor of DTSC, finding that “owner” status is determined at the time a response-recovery claim accrues (when the cleanup occurs), not at the time the lawsuit is initiated. The parties jointly requested immediate certification of the issue for appeal, which the trial court granted. The 9 th Circuit accepted the appeal of this question of law.
The 9 th Circuit noted that CERCLA is silent on the issue of the date from which ownership is measured, and therefore looked to the statutory context and CERCLA's purposes to deduce Congress's intent. Regarding Congress's intent, the court reasoned that because the applicable statute of limitations is triggered at the time of cleanup, this suggests Congress's intent was to make the owner at the time of cleanup the “current owner.”
Regarding CERCLA's purposes, the Court reasoned that CERCLA encourages early settlements rather than litigation. However, by attaching “current owner” status to a potentially responsible party only at the time of the filing of a lawsuit could cause many premature suits to be filed, contrary to CERCLA's the goal of encouraging early settlements. In addition, settlement requires the responsible party's agreement to remediate the property; the owner at the time of cleanup can select from alternative remedial plans, and therefore that owner should be responsible for the cost of the cleanup. The Court also reasoned that CERCLA discourages delay of remediation, and attaching “current owner” status at the time of remediation would not encourage delay, stating:
“[A] landowner that knows it will ultimately be responsible for the cleanup costs has no incentive to delay the completion of that process once it has begun. Conversely, . . . a landowner seeking to avoid liability by transferring the property before a lawsuit is filed has every incentive to delay completing the cleanup process until it has found a buyer; the recovery suit is likely to be filed once cleanup is complete and the total cost is known.”
The decision does not address the second category of “owner” liability under CERCLA, namely “any person who at the time of disposal of any hazardous substance owned or operated any facility at which such hazardous substances were disposed of…” 42 U.S.C. § 9607(a)(2). Any former property owner evaluating its potential liability under CERCLA must consider the possible applicability of both categories of “owner” liability, along with the timing of any remedial actions taken on that property or adjoining properties pursuant to this decision.
•EPA Administrator (and Governor of the State) required to approve the covenant deferral request for all NPL early transfers
–Service may retain cleanup responsibility
–Transferee may take cleanup responsibility
•Use of Public Sale in disposing of contaminated property
–Has never been done at a NPL facility
–Regulators role where multiple bidders agree to take on cleanup responsibility?
•It’s not easy!
•Negotiating the cost of remaining work to be done can be time consuming for DoD and transferee; negotiations may be time consuming for state and EPA also
•Changes in reuse plans can disrupt the path forward
•All parties involved will need to give and take to make the deal work
•Privatized cleanups need to recognize the need for community involvement
–CERCLA Section 117 requirements will still apply
EXPLANATION OF SIGNIFICANT DIFFERENCE - CERCLA 117(c)
SEC. 118. HIGH PRIORITY FOR DRINKING WATER SUPPLIES.
For purposes of taking action under section 104 or 106 and
listing facilities on the National Priorities List, the President shall
give a high priority to facilities where the release of hazardous substances
or pollutants or contaminants has resulted in the closing
of drinking water wells or has contaminated a principal drinking
water supply.
[42 U.S.C. 9618]
E-Update on Land Management - Department of Interior's “Christmas Present” to the American Public: Lockup More Federal Land Congressman Herger
During the “lame duck” session of the 111 th Congress, Democratic members of the U.S. Senate had their sights set on passing yet another omnibus public lands bill to designate thousands of acres of wilderness and enact other restrictions on federal land-use. Thankfully, this effort was met with strong resistance by Senate conservatives and was quickly dropped before Congress adjourned on December 22 nd . However, in what appears to be a consolation prize to the environmental activist community and its supporters, upon Congress' adjournment Department of the Interior Secretary Salazar released Secretarial Order #3310 , which instructs the federal Bureau of Land Management (BLM) to identify and designate BLM lands with wilderness characteristics as “Wild Lands.”
By designating “Wild Lands” through land-use planning, this order represents a deliberate end-run around the authority of Congress to designate lands as wilderness. While I have long opposed wilderness designations under any circumstances due to their extreme restrictions on beneficial and economic use of our federal lands, as well as the management restrictions that inhibit local efforts to address the growing threat of wildfires, I also believe that those decisions are best made through open debate and a vote by the Congress instead of through a backdoor process that is solely at the discretion of a federal agency. Moreover, as the Obama Administration continues to claim that it has no plans to designate national monuments in response to a leaked memo describing potential monument sites (including two within our Northern California Congressional District), this latest action further undermines their credibility. Instead, these statements simply reinforce the Administration's “lock it up” agenda with respect to multiple-use of federal lands. As the 112 th Congress convenes with an emboldened conservative majority, I will pursue whatever means possible to prevent this Secretarial Order or any other policy from further restricting recreation, forest management, mining, grazing, and other valuable uses of our public lands in Northern California.
H.R.1885 Latest Title: Private Property Rights Protection Act of 2009 Sponsor: Rep Waters, Maxine [CA-35] (introduced 4/2/2009) Cosponsors (26) Latest Major Action: 5/26/2009 Referred to House subcommittee. Status: Referred to the Subcommittee on the Constitution, Civil Rights, and Civil Liberties.
Mr. BROUN of Georgia (for himself, Mr. BARTLETT, Mr. BISHOP of Utah, Mr. SCALISE, Mr. SMITH of Texas, Mrs. BACHMANN, Mr. MARCHANT, Mr. GINGREY of Georgia, Mr. MANZULLO, Mr. SHADEGG, Mr. GOHMERT, Mr. CULBERSON, Mr. HERGER, Mr. MILLER of Florida, Mr. KINGSTON, Mr. WESTMORELAND, Mr. DEAL of Georgia, Mr. HALL of Texas, Mr. KING of Iowa, Mr. AKIN, Mr. GARRETT of New Jersey, Mr. BROWN of South Carolina, Mr. FRANKS of Arizona, Mr. PENCE, Mr. HENSARLING, Mr. FORBES, Mr. BOOZMAN, Mr. HARPER, Mr. ROE of Tennessee, Mr. LINDER, Mr. RYAN of Wisconsin, Mr. HELLER, Mr. WILSON of South Carolina, Mr. KLINE of Minnesota, Mr. CONAWAY, Mr. BURTON of Indiana, and Mr. PRICE of Georgia) submitted the following resolution; which was referred to the Committee on the Judiciary
Recognizing the importance of the property rights granted by the United States Constitution; affirming the duty of each Member of this body to support and defend such rights; and asserting that no public body should unlawfully obtain the property of any citizen of the United States for the benefit of another private citizen or corporation.
Whereas there is no greater expression of freedom and liberty than the defense of the God-given right of an individual to hold, possess, and use private property;
Whereas John Locke, the great political philosopher lauded by so many of the Founders of this Nation, stated, `the preservation of property [is the reason] for which men enter into society' and that `no [government] hath a right to take their [property], or any part of it, without their own consent, for this would be in effect to leave them no property at all.';
Whereas William Blackstone, whose lectures shaped and helped inspire the Declaration of Independence, Constitution, and primal laws of America, wrote: `So great moreover is the regard of the law for private property, that it will not authorize the least violation of it; no, not even for the general good of the whole community.';
Whereas Samuel Adams, the political writer, statesman, and signer of the Declaration of Independence, declared that our rights included: `First, a right to life; Secondly, to liberty; Thirdly, to property; together with the right to support and defend them.';
Whereas John Adams, diplomat, signer of the Declaration of Independence, and President of the United States, firmly proclaimed: `The moment the idea is admitted into society, that property is not as sacred as the laws of God, and that there is not a force of law and public justice to protect it, anarchy and tyranny commence.' and that `Property is surely a right of mankind as real as liberty.';
Whereas John Adams also affirmed: `Property must be secured or liberty cannot exist.';
Whereas James Madison, author of the Constitution, and President of the United States, announced: `Government is instituted to protect property. . . . This being the end of government, that alone is a just government, which impartially secures to every man, whatever is his own.';
Whereas John Dickinson, signer of the Constitution, stated: `Let these truths be indelibly impressed on our minds: (1) that we cannot be happy without being free; (2) that we cannot be free, without being secure in our property; (3) that we cannot be secure in our property, if, without our consent, others may, as by right, take it away.';
Whereas Thomas Jefferson, the mind behind the Declaration of Independence, and President of the United States, wrote: `The true foundation of republican government is the equal right of every citizen in his person and property and in their management.' and `The first foundations of the social compact would be broken up were we definitely to refuse to its members the protection of their persons and property while in their lawful pursuits.';
Whereas Thomas Jefferson also affirmed: `Charged with the care of the general interest of the nation, and among these with the preservation of their lands from intrusion, I exercised, on their behalf, a right given by nature to all men, individual or associated, that of rescuing their own property wrongfully taken.';
Whereas Noah Webster, the `Father of American Scholarship and Education', stated: `It is admitted that all men have an equal right to the enjoyment of their life, property and personal security; and it is the duty as it is the object, of government to protect every man in this enjoyment.';
Whereas John Jay opined: `No power on earth has a right to take our property from us without our consent.'; and
Whereas Fisher Ames, framer of the Bill of Rights and Massachusetts Representative to the first four Congresses, said: `The chief duty and care of all governments is to protect the rights of property.': Now, therefore, be it
Resolved, That--
(1) these ideals did motivate and continue to justify the drafting of article 1, section 8 of the United States Constitution, which states that it is the responsibility of Congress `to promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries', and the writing of the 5th amendment to our Constitution, which clearly states: `No person shall be . . . deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.';
(2) since every Member of this body has sworn or affirmed to both support and defend the entire Constitution and `to bear true faith and allegiance to the same', any act not in accordance with that oath is both a betrayal of the United States Constitution and a violation of Federal law; and
(3) in the constant pursuit of a more perfect union, all citizens of the United States should remain secure in the possession of private property, and no court, legislature, or executive shall, by predatory law or tyrannical force, obtain the property of any citizen of the United States for the benefit of another private citizen or corporation.
The term ‘‘Indian tribe’’ means any Indian tribe, band,
nation, or other organized group or community. 1 The words ‘‘or the Indian tribe’’ were inserted after the words ‘‘State Government’’ in the
previous version of this sentence, but the same law also removed the sentence containing those
words and replaced it with this new sentence which does not contain the words ‘‘State Government’’.
See sections 107(d)(2) and 207(c)(2)(D) of the Superfund Amendments and Reauthorization
Act of 1986.
in accordance with section 553 of title 5,
United States Code, the President shall by rule promulgate
amendments to the hazard ranking system in effect on September
1, 1984. Such amendments shall assure, to the maximum
extent feasible, that the hazard ranking system accurately
assesses the relative degree of risk to human health and
the environment posed by sites and facilities subject to review.
$1 Billion Settlement
Reached at Iron Mountain
Mine Site
When EPA, in conjunction with the State, has determined
that all appropriate response actions have been implemented
and no further remedial measures are necessary,
a Notice of Final Action to Delete is published in
the Federal Register. If EPA receives no significant adverse
or critical comments from the public within the 30-
day comment period, the site is deleted from the NPL.
Reform of the program is ongoing. The reforms are being refined
and improved – and their impact is becoming broader. EPA is
consistently addressing stakeholders’ criticisms and developing new
ways to make Superfund work faster, fairer, and more efficiently. EPA believes that communities must have meaningful opportunities
for involvement early in the cleanup process and should
stay involved throughout site cleanup. Some of the ways that
this is done is through Community Advisory Groups (CAGs)
and Technical Assistance Grants (TAGs).
A CAG is a committee of citizens affected by a hazardous waste
site. CAGs are made up of representatives with diverse community
interests and provide a public forum for community
members to present and discuss their needs and concerns regarding
decision-making at a site.
Many Superfund sites present communities with complex issues
often requiring expertise in chemistry, engineering, geology,
toxicology, and law. A TAG is a grant of up to $50,000 for
community groups to hire the technical advisers needed to help.
Developing Partnerships
To achieve success and promote public participation, EPA works
with communities, local businesses, large corporations, and State,
local, and Tribal governments in the form of partnerships.
EPA, through its State and Tribal Enhanced Role Initiative, developed
a comprehensive plan to implement equitable sharing of
Superfund program responsibilities with interested and capable
States and Tribes, resulting in quicker cleanup of more sites. In
Mississippi, EPA has entered into a pilot program partnering with
a band of Choctaw Native Americans. The pilot supports Tribal
efforts in building a greater Superfund capacity with respect to
emergency preparedness and response. Through the pilot, the
Tribe will learn how to effectively respond to oil and hazardous
substance spills and perform environmental assessments at potential
waste sites on Tribal lands.
Implementing Technological Innovations
SARA established a preference for treatment of hazardous
wastes and created a demand for alternatives to land disposal.
New innovative treatment technologies grew from this demand
to provide more permanent, less costly solutions, for dealing
with contaminated materials.
The Superfund Innovative Technology Evaluation (SITE) Program
was established to meet this increased demand for alternative technologies.
The SITE Program has provided demonstrations of new
technologies at particular sites, resulting in average cost savings of
over 70 percent per site. The total cost savings for innovative
treatment as opposed to conventional treatment is estimated at
$2.1 billion.
EPA also promotes the research and development of innovative
technologies by sharing the risk with PRPs who select remedies
employing low-cost, high performance technologies. EPA will “underwrite” these innovative approaches by agreeing to reimburse
up to 50 percent of the cost if the innovative remedy fails
and a subsequent remedy is required.
EPA has taken significant steps to reduce litigation, promote earlier
settlements, and optimize fairness concerns. By streamlining
the enforcement process, EPA is able to reach settlement more
quickly on terms that are considered more fair to the responsible
parties. This streamlined process allows both EPA and the PRPs
to move quickly to clean up sites, and to increase the pace at which
contaminated properties are returned to productive use.
Since 1992, responsible parties have performed over 70 percent
of the new cleanup work at Superfund sites. And over the life of
the Superfund program, EPA has reached settlements with private
parties valued at over $18 billion.
Removing Legal Barriers and Encouraging Economic
Redevelopment
‘‘Audit Policy.’’ The purpose of this Policy is to enhance protection of human health and the environment by encouraging regulated entities to voluntarily discover, promptly disclose and expeditiously correct violations of Federal environmental requirements. The revised Policy was developed in close consultation with the U.S. Department of Justice (DOJ), States, public interest groups and the regulated community.
The Policy includes important safeguards to deter violations and protect public health and the environment. For example, the Policy requires entities to act to prevent recurrence of violations and to remedy any environmental harm that may have occurred. Repeat violations, those that result in actual harm to the environment, and those that may present an imminent and substantial endangerment are not eligible for relief under this Policy. Companies will not be allowed to gain an economic advantage over their competitors by delaying their investment in compliance. And entities remain criminally liable for violations that result from conscious disregard of or willful blindness to their obligations under the law, and individuals remain liable for their criminal misconduct.
When EPA issued the 1995 Audit Policy, the Agency committed to evaluate the Policy after three years. The Agency initiated this evaluation in the Spring of 1998 and published its preliminary results in the Federal Register on May 17, 1999 (64 FR 26745). The evaluation consisted of the following components:
1 An internal survey of EPA staff who process disclosures and handle enforcement cases under the 1995 Audit Policy;
2 A survey of regulated entities that used the 1995 Policy to disclose violations;
3 A series of meetings and conference calls with representatives from industry, environmental organizations, and States;
4 Focused stakeholder discussions on the Audit Policy at two public conferences co-sponsored by EPA’s Office of Enforcement and Compliance Assurance (OECA) and the Vice President’s National Partnership for Reinventing Government, entitled ‘‘Protecting Public Health and the Environment through Innovative Approaches to Compliance’’;
40658 - 40673 Federal Register / Vol. 48, No. 175 / Thursday, September 8, 1983 / Rules and Regulations List of Subjects in 40 CFR Part 300
Air pollution control, Chemicals, Hazardous materials, Intergovernmental relations, Natural resources, Oil pollution, Reporting and recordkeeping requirements, Super fund, Waste treatment and disposal, Water pollution control, Water supply.
PART 300 - [AMENDED] Part 300, Title 40 of the Code of Federal Regulations is hereby amended by adding a new Appendix B, to read as follows:
BILLING CODE 6560-50-M
Appendix B - National Priorities List,
Group 2 09 CA Iron Mountain Mine Redding R
= FEDERAL AND STATE RESPONSE;
Last updated on October 01, 2010
Voluntary or Negotiated Response
Sites are included in this category if private parties are taking response actions pursuant to a consent order or agreement to which EPA is a party. Voluntary or negotiated cleanup may include actions taken pursuant to consent orders reached after EPA has commenced an enforcement action. This category of response may include remedial investigations, feasibility studies, and other preliminary work, as well as actual cleanup.
Several commenters were concerned that this category did not adequately reflect voluntary response efforts undertaken without formal agreements with EPA. However, EPA studies have shown that many of the response actions undertaken by private parties outside the sanction of EPA consent agreements have not been successful. Furthermore, some private parties have represented routine maintenance or waste management activities as response actions, thereby leading to the conclusion that only after a thorough technical review can the Agency describe actions by private parties as "responses". Thus, EPA believes that to describe actions taken outside consent orders as "response" would in many instances be misleading to the public as EPA cannot assure the public that the actions are appropriate, adequate, consistent with the NCP, and are being fully implemented. Therefore, the Agency encourages any responsible parties who are undertaking voluntary response actions at NPL sites to contact the Agency to negotiate consent agreements.
This is not intended to preclude responsible parties from taking voluntary response actions outside of a consent agreement. However, in order for the site to be deleted or to be noted in the voluntary or negotiated response category, EPA must still sanction the completed cleanup. If the remedial action is not fully implemented or is not consistent with the NCP, the responsible party may be subject to an enforcement action. Therefore, most responsible parties may find it in their best interest to negotiate a consent agreement.
Federal and State Response
The Federal and State Response category includes sites at which EPA or State agencies have commenced or completed removal or remedial actions under CERCLA, including, remedial investigations and feasibility studies (see NCP, § 300.68 (f)-(i), 47 FR 31217, July 16, 1982). For purposes of this categorization, EPA considers the response action to have commenced when EPA has obligated funds. For some of the sites in this category EPA may follow remedial investigations and feasibility studies with enforcement actions, at which time the site status would change to "Federal or State Enforcement."
Federal or State Enforcement
This category includes sites where the United States or the State has filed a civil complaint or issued an administrative order. It also includes sites at which a Federal or State court has mandated some form of non-consensual response action following a judicial proceeding. It may not, however, include all sites at which preliminary enforcement activities are underway. A number of sites on the NPL are the subject of enforcement investigation or have been formally referred to the Department of Justice for enforcement action. EPA's policy is not to release information concerning a possible enforcement action until a lawsuit has been filed. Accordingly, these sites have not been included in the enforcement category.
[FR Doc. 83-24538 Filed 9-7-83; 8:45 am]
Federal Environmental Executive to Speak
Meeting attendees will also hear Joe Cascio, U.S. Federal Environmental Executive, illustrate the dramatic impact of the federal government's consumption of goods and services and how that purchasing power can be harnessed to create positive environmental change. For example, the government:
is the country's largest buyer/user of energy ($3.5 billion/year)
accounts for 7% of the world's information technology purchases
controls a real estate portfolio of more than 1.2 million assets, including more than 550,000 buildings
“Champions of Environmental Leadership and Green Government”
Participating Federal Green Challenge agencies, entities and facilities include: the U.S. Environmental Protection Agency; General Services Administration, U.S Army Corps. of Engineers; the National Park Service; Bureau of Land Management; the U.S. Department of Housing and Urban Development, the Federal Aviation Administration; Social Security Administration; National Oceanic and Atmospheric Administration, U.S. Coast Guard; U.S. Fish & Wildlife Service; U.S. Department of Agriculture (Forest Service, National Resource Conservation Service, Rural Development); U.S. Department of Transportation (Federal Transit Administration) and the U.S. Geological Survey, the Bonneville Power Administration and the U.S. Army (Fort Lewis, WA).
This document provides guidance to the U.S. Environmental Protection Agency (EPA) on the exercise of EPA's discretion under CERCLA section 120(h)(3)(A),(B), or (C) when EPA is called upon to evaluate institutional controls as part of a remedial action. also informs the public and the regulated community on how EPA intends to exercise its discretion in this context. designed to implement the President's policy of promoting, encouraging, and facilitating the redevelopment and reuse of closing military bases while continuing to protect human health and the environment. ay change this guidance in the future, as appropriate.
EPA's evaluation of federal property transfers is contingent on the receipt of information establishing that the institutional controls will be effective in preventing human or environmental exposure to hazardous substances that remain on site above levels which allow unrestricted use. guidance requires that the transferring federal agency demonstrate prior to transfer that certain procedures are in place, or will be put in place, that will provide EPA with sufficient basis for determining that the institutional controls will perform as expected in the future. Such procedures, which are listed in Section 5.0 below, include the means for:
Monitoring the institutional controls' effectiveness and integrity.
Reporting the results of such monitoring, including notice of any violation or failure of the controls.
Enforcing the institutional controls should such a violation or failure occur.
Institutional controls are nonengineering measures designed to prevent or limit exposure to hazardous substances left in place at a site, or assure effectiveness of the chosen remedy. Institutional controls are usually, but not always, legal controls, such as easements, restrictive covenants, and zoning ordinances.
What is the historical basis for this guidance?
The Department of Defense's (DoD) base closure program and the Department of Energy's reuse and reindustrialization of surplus facilities are just two examples of programs where federal properties with hazardous substances remaining on site are being transferred outside of federal control. These property transfers will often require the implementation of institutional controls to ensure that human health and the environment are protected. Such property transfers highlight the need to ensure that institutional controls are clearly defined, oversight and monitoring roles are understood, and appropriate enforcement mechanisms are in place to ensure that human health and the environment are protected.
What is the statutory basis for this guidance?
Section 120(h)(3)(A) of CERCLA requires that a federal agency transferring real property (hereafter, transferring federal agency - by "transferring federal agency" EPA means the federal agency responsible for cleanup) to a nonfederal entity include a covenant in the deed of transfer warranting that all remedial action necessary to protect human health and the environment has been taken prior to the date of transfer with respect to any hazardous substances remaining on the property. In addition, CERCLA section 120(h)(3)(B) requires, under certain circumstances, that a federal agency demonstrate to the EPA Administrator that a remedy is "operating properly and successfully" before the federal agency can provide the "all remedial action has been taken" covenant. Under CERCLA section 120(h)(3)(C), the covenant can be deferred so that property may be transferred before all necessary remedial actions have been taken if regulators agree that the property is suitable for the intended use and the intended use is consistent with protection of human health and the environment.
This guidance establishes criteria for EPA to evaluate the effectiveness of institutional controls that are part of a remedy or are a sole remedy for property to be transferred subject to CERCLA section 120(h)(3)(A),(B), or (C). Accordingly, this institutional control guidance provides guidelines applicable to property transfers in general and, more specifically, to support "operating properly and successfully determinations" under CERCLA section 120(h)(3)(B).
This guidance does not substitute for EPA regulations, nor is it a regulation itself. Thus, it cannot impose legally binding requirements on EPA, states, or the regulated community, and may not apply to a particular situation based upon the circumstances.
What does the guidance not address?
This guidance does not address the issue of whether an institutional control is appropriate for a particular site. That decision is made as part of the remedy selection process. If, however, it becomes clear that the criteria set forth in this guidance cannot be met, the scope, effectiveness, or even the use of an institutional control should be reconsidered. This guidance does not change EPA's preference for active and permanent remedies as stated in CERCLA section 121 (See also 55 FR, page 8706 [March 8, 1990]), or any of the requirements for selecting remedies in CERCLA or the NCP (See CERCLA section 121 and 40 CFR 300.430).
When EPA approves "operating properly and successfully demonstrations" for ongoing remedies under CERCLA section 120(h)(3)(B). (See Section 7.0 for more information.)
When EPA evaluates a federal agency's determination under 120(h)(3)(A) that all remedial actions have been taken, such as when commenting on a "finding of suitability of transfer," in the consultative process established by DoD.
When EPA approves a Covenant Deferral Request under 120 (h)(3)(C) for an early transfer (For more information, see EPA Guidance on the Transfer of Federal Property by Deed Before All Necessary Remedial Action Has Been Taken Pursuant to CERCLA Section 120(h)(3), June 16, 1998).
Who is responsible for implementing institutional controls?
The decision to clean up a site to less than unrestricted use or to otherwise restrict the use of the site must be balanced by the assurance that a system will be in place to monitor and enforce any required institutional controls. This assurance is necessary to ensure the long term effectiveness and permanence of the remedy (For more information, see 55 FR section 300.430 (e)(9) (iii)(C)(2)). In EPA's view, the transferring federal agency is responsible for ensuring that the institutional controls are implemented. Even if implementation of the institutional controls is delegated in the transfer documents, the ultimate responsibility for monitoring, maintaining, and enforcing the institutional controls remains with the federal agency responsible for cleanup.
The transferring agency should clearly identify and define the institutional controls and set forth their purpose and method of implementation in a Record of Decision (ROD) or other decision document. Generally referring to or identifying an institutional control in a ROD is only one step in achieving the objective of an institutional control. An institutional control must be implemented in much the same way as an engineered remedy described in a ROD is designed and constructed.
5.0 Specific Guidelines for Institutional Controls
What information does EPA need?
EPA's review of federal property transfers requiring institutional controls should focus on whether the institutional controls, when in place, will be reliable and will remain in place after initiation of operation and maintenance. The information should document that the transferring federal agency will ensure that appropriate actions will be taken if a remedy is compromised. EPA should work with the transferring agency to obtain and evaluate the information described below as a precondition for EPA's support of federal property transfers under 120 (h)(3)(A),(B) or (C). At a minimum, EPA should expect to obtain the following information from the transferring federal agency:
A legal description of the real property or other geographical information sufficient to clearly identify the property where the institutional controls will be implemented.
A description of the anticipated future use(s) for the parcel.
Identification of the residual hazard or risk present on the parcel requiring the institutional control. In addition, the specific activities that are prohibited on the parcel should be identified, including prohibitions against certain land use activities that might affect the integrity of the remedy, such as well drilling and construction.
The specific institutional control language in substantially the same form as it will appear in the transfer document and a description of the legal authority for the implementation of these controls, such as state statutes, regulations, ordinances or other legal authority including case law.
A statement from the transferring federal agency that, in their best professional judgement, the institutional controls conform or will conform with the legal requirements of the applicable state and/or local jurisdiction. This statement should also explain how the institutional controls will be enforceable against future transferees and successors. Compliance with the institutional control should be enforceable against whoever might have ownership or control of the property. For Base Realignment and Closure properties, the majority of the transfers which EPA reviews, this statement could be included in a memorandum transmitting the final institutional control language for the deed of transfer from a DoD component attorney to the Commanding Officer. The memorandum could state that, based upon a review of the particular state's real estate laws, the component attorney believes that the institutional control is binding in perpetuity and enforceable in state court, and if it is not, he/she will revisit the institutional control or the entire remedy decision. This memorandum could be included in DoD's "operating properly and successfully demonstration" letter to EPA (This is consistent with DoD's own requirement in their guidance Responsibility for Additional Environmental Cleanup after Transfer of Real Property, which states "The DoD component disposal agent will also ensure that appropriate institutional controls and other implementation and enforcement mechanisms, appropriate to the jurisdiction where the property is located, are either in place prior to the transfer or will be put in place by the transferee.").
A description of who will be responsible for monitoring the integrity and effectiveness of the institutional controls and the frequency of monitoring. If this is a party other than the transferring federal agency, the transferring federal agency should provide documentation that the party accepts or will accept the responsibility. The transferring agency should also describe which specific party or office will be responsible for overseeing the institutional controls. The transferring agency might, for example, provide details of the types of assistance that other government agencies will provide in preventing the drilling of drinking water wells as well as the frequency of monitoring to ensure that drilling is not occurring.
A description of the procedure that will be used to report violations or failures of the institutional controls to the appropriate EPA and/or state regulator, local or tribal government, and the designated party or entity responsible for reporting.
A description of the procedure that will be used to enforce against violations of an institutional control, an identification of the party or parties that will be responsible for such enforcement, and a description of the legal authority for this enforcement procedure, such as state statutes, regulations, ordinances, or other legal authority including case law.
Assurance that the transferring federal agency will verify maintenance of the institutional control on a periodic basis unless other arrangements have been made. In the latter case, where another party is performing the monitoring function, that party should provide such assurances. In addition, the transferring federal agency must commit to verify the reports on a regular basis in this case.
A description of the recording requirements in the jurisdiction where the site is located. The transferring agency also must describe the methods it will use to provide notice of the institutional controls at the site to subsequent owners or lessees.
What remedy selection documentation should EPA expect from the transferring federal agency?
EPA may base its evaluation of the institutional control on information found in the following remedy selection, remedy design, or other documents:
RODs that contain sufficient information regarding institutional controls.
Other post-ROD documents that are completed following the selection of a remedy, such as a Remedial Design, Remedial Action Plan, or Operation and Maintenance Plan. This applies in cases where the ROD requires the use of an institutional control but fails to provide sufficient information regarding purpose, implementation, or enforcement (such as in older RODs).
What if existing documents do not provide sufficient information on institutional controls?
If none of the documents mentioned above provide sufficient detail on the implementation of the institutional control, the transferring federal agency should develop an "Institutional Control Implementation Plan" (ICIP) to assist EPA in evaluating the effectiveness of the institutional control. The ICIP should adhere to the following conditions:
The ICIP should be a comprehensive strategy for the implementation of institutional controls.
The ICIP should identify the parties responsible for implementing and monitoring the institutional controls.
The ICIP should document that procedures adequate for effectively implementing and monitoring the institutional control are in place or will be put in place.
The level of detail in the ICIP should be commensurate with the risk at the site. Depending on the residual risk posed by the site, for instance, EPA may require that the plan be agreed upon by both EPA and state regulators and/or that the plan be structured as an agreement among all the parties involved via a Memorandum of Agreement, amendment of a ROD or Federal Facilities Agreement, or an operation and maintenance plan.
7.0 "Operating Properly and Successfully Demonstrations"
How does this guidance apply to demonstrations that remedial actions are "operating properly and successfully"?
In August 1996, EPA issued guidance to EPA's Regional Federal Facility programs describing the approach EPA should use in evaluating a federal agency's demonstration that a remedial action is "operating properly and successfully" as a precondition to the deed transfer of federally-owned property, as required in CERCLA section 120(h)(3)(B). In that guidance, entitled Guidance for Evaluation of Federal Agency Demonstrations that Remedial Actions are Operating Properly and Successfully under CERCLA Section 120(h)(3), EPA directed Regional decision-makers to consider a number of factors in evaluating an "operating properly and successfully demonstration" of ongoing remedial actions, including institutional controls. With respect to institutional controls, EPA stated generally that:
"If the integrity of the remedial action depends on institutional controls (e.g., deed restrictions, well drilling prohibitions) these controls should be clearly identified and agreed upon."
Additionally, under the more specific criteria that must be demonstrated for groundwater remedies, the 1996 guidance included "appropriate institutional controls are in place" as a criterion, but did not describe how federal agencies should meet this requirement. For ongoing remedial actions involving institutional controls and for which EPA must evaluate a transferring federal agency's demonstration that a remedial action is operating properly and successfully, the information listed in Section 5.0 of this guidance should be submitted as part of the data requirements for the remedial action.
What documentation does EPA need to evaluate "operating properly and successfully demonstrations"?
The following documentation is needed for all "operating properly and successfully demonstrations":
The transferring federal agency should research, assemble, and analyze the information to demonstrate to EPA that the remedy is operating properly and successfully.
The cover letter forwarding the information to EPA should request EPA's approval of the demonstration and include a statement by a Commanding Officer or senior official similar to the following:
I certify that the information, data, and analysis provided are true and accurate based on a thorough review. To the best of my knowledge, the remedy is operating properly and successfully, in accordance with CERCLA 120(h)(3)(B).
Generally, where institutional controls are a component of a remedy, EPA should not consider "operating properly and successfully demonstrations" that are not consistent with the requirements described above in Sections 5.0 and 6.0 .
When should information for "operating properly and successfully" demonstrations be provided?
EPA should encourage federal agencies preparing "operating properly and successfully demonstrations" to work closely with EPA in planning the scope and presentation of the documentation. A minimum of 45 days is needed for EPA to review all "operating properly and successfully demonstrations."
8.0 Coordination with State, Local, and Tribal Governments
What organizations should be involved in the development of institutional controls?
Successful management of institutional controls is critical to protecting the human health and environment of the communities where federal properties are located. For this reason, EPA encourages early communication and cooperation among federal, state, local, and tribal governments in the development of institutional controls and implementation plans. Where the viability of the institutional control is contingent on state property law or where state institutional control-related laws may apply (e.g., documentation of institutional controls in a state registry), it is particularly important to coordinate with the state. As a matter of policy, therefore, EPA will forward all institutional control information received for federal property transfers to the appropriate state, local, and tribal governments. EPA also will solicit comments from these organizations as appropriate.
Executive Order 13132, entitled "Federalism" (64 FR 43255, August 10, 1999), requires EPA to develop an accountable process to ensure "meaningful and timely input by State and local officials in the development of regulatory policies that have federalism implications." "Policies that have federalism implications" is defined in the Executive Order to include regulations and regulatory policies that have "substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.
This guidance does not have federalism implications. This guidance aids EPA in implementing its responsibilities under CERCLA section 120(h)(3)(A), (B) or (C). This guidance also encourages Federal agencies to coordinate the development and implementation of institutional controls with state, local and tribal governments. Neither such coordination, nor any other aspect of this guidance, however, will have substantial direct effects on the states, on the relationship between the national government and the states, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132. Thus, the requirements of the Executive Order do not apply to this guidance.
EPA prefers to work with federal agencies early in the remedy selection process to assure full and consistent consideration of the long term effectiveness of the institutional controls. For this reason, it is imperative that these discussions begin prior to remedy selection. Although the federal government has had less experience designing and implementing institutional controls than engineered remedies, EPA will use its professional judgement in evaluating institutional control plans, as it does in evaluating other aspects of remedies and operations and maintenance. The basis for that judgment may vary depending on the site characteristics. EPA understands the importance of rapid reuse to the surrounding communities and is committed to supporting this effort while maintaining the Agency's primary goal of protecting human health and the environment.
Freedom is not something that anybody can be given ; Freedom is something that people take and people are as free as they want to be. -James Baldwin
US CFTC needs "Plan B" for costly swaps rules-INTERVIEW-UPDATE 1
FINANCIAL-REGULATION/OMALIA (INTERVIEW)(UPDATE 1)
* CFTC needs plan in case it doesn't get new funding
* Reforms will cost more, take longer than imagined
* Could outsource some tasks to private regulators
* Should restructure to focus on data, add technology
* "Further negotiations" needed on position limits (Adds additional information and background starting in 16th paragraph)
By Roberta Rampton
WASHINGTON, Jan 3 (Reuters) - The U.S. futures regulator needs to consider a "Plan B" on how it will police the $600 trillion swaps market if Congress fails to deliver a 50 percent increase in its budget, one of its top officials said on Monday.
The Commodity Futures Trading Commission has been counting on getting a $92 million budget hike for 2011 -- and even more in 2012 -- to take on new responsibilities to oversee the over-the-counter market in the bank reform law, but may come up short as lawmakers look to slash government spending.
"We may not get more dollars, so what are we going to do next? What's our Plan B?" said Scott O'Malia, a Republican commissioner on the CFTC, in an interview with Reuters.
His comments were among the most frank acknowledgments from top CFTC officials that the agency faces an uphill battle implementing reforms without new funding.
O'Malia said he didn't have the answers, but said CFTC staff were beginning to think about options, including asking private industry regulators like the National Futures Association to shoulder more responsibilities.
It's an idea that has been raised by other CFTC commissioners as one way to help the chronically underfunded agency cope with the dramatic overhaul of its role under the Dodd-Frank financial law.
Republican lawmakers, who now control the House of Representatives and increased their numbers in the Senate, have said they want to review regulatory expansion plans and slow reforms passed by Democrats last year.
REFORMS "MORE EXPENSIVE THAN WE IMAGINE"
Agency staff have been working nights and weekends to meet the July deadlines to finalize CFTC rules that were set out in the Dodd-Frank law, O'Malia said.
"If Congress wants to change that (deadline), I'm sure everybody would breathe somewhat of a sigh of relief, and it certainly would allow us to take a little slower approach to this," he said.
There has been no total price tag put on the CFTC's share of Dodd-Frank reforms, which will require most types of over-the-counter derivatives to trade on exchanges or new swap execution facilities, pass through clearinghouses, and be recorded in new swap data repositories, O'Malia said.
"I think it's more expensive than we imagine, not only to the commission but to the industry, and it's going to take a lot longer than we expect," O'Malia said.
The agency's technology advisory committee, which O'Malia chairs, will discuss the costs and needs of the new market structure required to report on and track swaps trades from inception through conclusion at a Jan. 27 meeting, he said.
O'Malia is pushing the CFTC to restructure to create a new "Office of Market Data Collection and Analysis," which he said could require more spending on technology even while lawmakers push to rein in staff expansion plans.
"I think the mortgage for technology is a cheaper bill to pay than if we were going to hire many more people," he said.
"I think we need to be very careful about our hiring and where we're spending money right now," O'Malia said.
CFTC ROUNDS THE CORNER IN RULE-MAKING
The CFTC had aimed to unveil the first draft of all its rules by the end of the year, a self-imposed deadline it met for all but a handful of rules, including capital and margin requirements for swap dealers and major swap participants.
Also in the wings are its controversial curbs on speculative trades in commodity markets. The CFTC proposed a rule on Dec. 16, but commissioners have not yet agreed on whether to issue the plan for public comment.
"I think there needs to be some further negotiations and discussion among the commissioners," O'Malia said, declining to comment further on the position limit rule.
The agency aims to finalize its first major rule for the swaps market -- ownership caps and governance rules for clearinghouses, exchanges and swap execution facilities -- at its first hearing of the year, slated for Jan. 13, he said.
DISRUPTIVE TRADING A TOUGH NUT
The CFTC also needs to work on giving traders clearer guidance on three trading practices banned in the Dodd-Frank law as "disruptive," O'Malia said.
The banned practices include "banging the close" -- acquiring a big position and then offsetting it before trading ends -- and "spoofing" -- when a trader makes bids or offers but cancels them before execution.
"Providing the certainty and nailing what is inappropriate behavior is going to be very difficult," he said, adding he doubted it was even possible.
"I think we're going to be, unfortunately, too vague."
The CFTC is also looking at whether to rein in high-frequency traders using computer-driven algorithms.
That task took on more profile after the May 6 "flash crash," when markets briefly plunged before recovering. Some analysts argue algorithms contributed to the volatility, although a government review did not blame high-frequency traders for the crash.
A panel of experts examining the flash crash is slated to make recommendations to the CFTC and Securities and Exchange Commission on Jan. 26, O'Malia said.
He said he thought the CFTC should focus on recommending "best practices" to preventing high-frequency errors and runaway algorithms rather than trying to ban more types of trades.
"We're having a hard enough time defining the current (disruptive) practices. Expanding that would not help the market," O'Malia said. (Editing by Walter Bagley)
(c) Copyright Thomson Reuters 2011. Click For Restrictions. http://about.reuters.com/fulllegal.asp
Sustaining the health and welfare of local communities is the starting place for sustaining the health and welfare of the world. Here and everywhere we are all dependent upon a quality environment and availability of needed resources to preserve our quality of life — for all citizens
Of the many ongoing technology developments, it's arguable that nanotechnology will have the most immediate, visible, and continuing impact. Nano-this and nano-that have already sprung up in the English vocabulary like mushrooms after rain and marketing-speak has long since incorporated the benefits of NEW: With Nano-whatever. Barely a week goes by without an announcement of some advancement in nanotechnology and the majority of these announcements are couched in their relationship to a practical application. So it should not be surprising even to people with only passing knowledge of nanotechnology that one of the areas about to be changed (if not revolutionized) is the construction industry – in particular the enhancement of construction materials by the incorporation of manufactured nanomaterials (MNMs).
Whether you're following the development or just interested in the possible impact of nanotechnology, a new report published by the American Chemical Society (ACS) in the journal ACS Nano , titled Nanomaterials in the Construction Industry: A Review of Their Applications and Environmental Health and Safety Considerations is a comprehensive look at the future of nanotechnology in the materials used by the construction industry AND their potential impact on health and the environment. A lengthy abstract is available at the above URL; the full text of the report requires subscription or purchase.
The report was prepared by scientists at Rice University (Texas, USA) and the University of California Los Angeles (USA). Its combination of a review of applications with a realistic approach to potential problems makes this report a standout. While the language is at times technical (the target audience is for people familiar with the field), it's easy to understand the overall picture:
Nanomaterials will be extensively incorporated in construction materials. Nanomaterials will make them stronger, lighter, more flexible, and endow some materials with unusual or even extraordinary properties. Overall the application of nanomaterials provides a major opportunity for more energy conserving and environmentally friendly materials – as long as that is made a top priority.
Examples of uses for manufactured nanomaterials (MNMs)
[Taken from Table 1 of Nanomaterials in the Construction Industry ]
Carbon Nanotubes
Concrete Mechanical durability, crack prevention
Ceramics Enhanced mechanical and thermal properties
MEMS Real-time structural health monitoring
Solar Cell Effective electron mediation
Silicon Dioxide Nanoparticles
Concrete Reinforcement in mechanical strength
Ceramics Coolant, light transmission, fire resistance
Windows Flame proofing, anti-reflection
Titanium Dioxide Nanoparticles
Cement Rapid hydration, increased degree of hydration, self-cleaning
Windows Superhydrophilicity, anti-fogging, fouling-resistance
Solar Cell Non-utility electricity generation
Iron Oxide Nanoparticles
Concrete Increased compressive strength, abrasion resistance
Copper Nanoparticles
Steel Weldability, corrosion resistance, formability
Silver Nanoparticles
Coating/Paints Biocidal activity
On the other hand, nanomaterials either in raw form or in the combination with traditional construction materials will become prevalent world-wide. Insofar as these materials have toxic or environmentally damaging properties – and we already know that some of them do – this new exposure at massive scale will probably create dangerous situations (or worse).
Some MNMs could be considered as potential emerging pollutants because their environmental release is currently not regulated despite growing concerns about the associated risks to public and environmental health. Once in the environment, MNMs may undergo diverse physical, chemical, and biological transformations that change their properties, impact, and fate. Thus, a holistic MNM lifecycle exposure profiling is essential to evaluate potential impacts to human and ecosystem health, as well as to mitigate unnecessary risks.
The report stresses the importance of understanding the health and environmental impact of using nanomaterials in construction from all points in the ‘life cycle' of the materials:
- Creation and transport of the raw (nano)components
- The manufacturing process
- Distribution and application in the construction industry
- Long-term degradation
- Final demolition and disposal.
Without taking into to account the dangers present at each point along the cycle (and they will vary considerably among the different materials), we will not have a profile accurate enough to provide guidance for regulation, prevention, troubleshooting and emergency procedures.
The Superfund Redevelopment Initiative (SRI) was announced
in 1999, but the effort to return Superfund sites to productive
use has been in place for a number of years. Building on the
Superfund Reforms and the Brownfields Initiative, EPA has put
in place a coordinated national program to make certain that communities
have the tools and information needed to realize the
potential of reusing Superfund sites.
Fulfilling the Promise of Earth Day
“We all have a stake in the quality of our water,” said EPA Regional Administrator Richard E. Greene. “Ensuring the sustainability of our nation's waters is not just an EPA challenge -- it is everyone's challenge.
Personal Sustainability Project Challenge, which coincides with Hispanic Heritage Month and encourages people to select an action they are willing to commit to improve their efforts towards sustainability.
Section 427 of Public Law 106–74 (113 Stat. 1095) added the phrase ‘‘through seizure or otherwise
in connection with law enforcement activity’’ before ‘‘involuntary’’ the first place it appears.
It was inserted after ‘‘involuntarily’’ as the probable intent of Congress.
Sec. 427. Law Enforcement Agencies Not Included as Owner or Operator. Section 101(20)(D) of the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (42 U.S.C. 9601(20)(D)) is amended by inserting ``through seizure
(D) The term ``owner or operator'' does not include a unit of State or local government which acquired ownership or control involuntarily through bankruptcy, tax delinquency, abandonment, or other circumstances in which the government involuntarily acquires title by virtue of its function as sovereign. The exclusion provided under this paragraph shall not apply to any State or local government which has caused or contributed to the release or threatened release of a hazardous substance from the facility, and such a State or local government shall be subject to the provisions of this chapter in the same manner and to the same extent, both procedurally and substantively, as any nongovernmental entity, including liability under section 9607 of this title.
Sec. 431. Promulgation <<NOTE: Reports.>> of Stormwater Regulations. (a) Stormwater Regulations.--The Administrator of the Environmental Protection Agency shall not promulgate the Phase II stormwater regulations until the Administrator submits to the Committee on Environment and Public Works of the Senate and the Committee on Transportation and Infrastructure of the House of Representatives a report containing-- (1) an in-depth impact analysis on the effect the final regulations will have on urban, suburban, and rural local governments subject to the regulations, including an estimate of-- (A) the costs of complying with the six minimum control measures described in the regulations; and (B) the costs resulting from the lowering of the construction threshold from 5 acres to 1 acre; (2) an explanation of the rationale of the Administrator for lowering the construction site threshold from 5 acres to 1 acre, including-- (A) an explanation, in light of recent court decisions, of why a 1-acre measure is any less arbitrarily determined than a 5-acre measure; and (B) all qualitative information used in determining an acre threshold for a construction site; (3) documentation demonstrating that stormwater runoff is generally a problem in communities with populations of 50,000 to 100,000 (including an explanation of why the coverage of the regulation is based on a census-determined population instead of a water quality threshold); and (4) information that supports the position of the Administrator that the Phase II stormwater program should be administered as part of the National Pollutant Discharge Elimination System under section 402 of the Federal Water Pollution Control Act (33 U.S.C. 1342). (b) Phase <<NOTE: Deadline. Reports.>> I Regulations.--No later than 120 days after the enactment of this Act, the Environmental Protection Agency shall submit to the Environment and Public Works Committee of the Senate and the Committee on Transportation and Infrastructure of the House of Representatives a report containing a detailed explanation of the impact, if any, that the Phase I program has had in improving water quality in the United States (including [[Page 113 STAT. 1097]] a description of specific measures that have been successful and those that have been unsuccessful). (c) Federal Register.--The reports described in subsections (a) and (b) shall be published in the Federal Register for public comment. Sec. 432. Pesticide Tolerance Fees. None of the funds appropriated or otherwise made available by this Act shall be used to promulgate a final regulation to implement changes in the payment of pesticide tolerance processing fees as proposed at 64 Fed. Reg. 31040, or any similar proposals. The Environmental Protection Agency may proceed with the development of such a rule.
Source ( Pub. L. 96–510 , title I, § 101, Dec. 11, 1980, 94 Stat. 2767 ; Pub. L. 96–561 , title II, § 238(b), Dec. 22, 1980, 94 Stat. 3300 ; Pub. L. 99–499 , title I, §§ 101, 114 (b) , 127 (a), title V, § 517(c)(2), Oct. 17, 1986, 100 Stat. 1615 , 1652, 1692, 1774; Pub. L. 100–707 , title I, § 109(v), Nov. 23, 1988, 102 Stat. 4710 ; Pub. L. 103–429 , § 7(e)(1), Oct. 31, 1994, 108 Stat. 4390 ; Pub. L. 104–208 , div. A, title I, § 101(a) [title II, § 211(b)], title II, § 2502(b), Sept. 30, 1996, 110 Stat. 3009 , 3009–41, 3009–464; Pub. L. 104–287 , § 6(j)(1), Oct. 11, 1996, 110 Stat. 3399 ; Pub. L. 106–74 , title IV, § 427, Oct. 20, 1999, 113 Stat. 1095 ; Pub. L. 107–118 , title II, §§ 211(a), 222 (a) , 223 , 231 (a) , Jan. 11, 2002, 115 Stat. 2360 , 2370, 2372, 2375.) References in Text
This chapter, referred to in pars. (5), (13), (20)(D), (G), (35)(C), (D), (39)(B)(iii), and (40)(G), was in the original “this Act”, meaning Pub. L. 96–510 , Dec. 11, 1980, 94 Stat. 2767 , as amended, known as the Comprehensive Environmental Response, Compensation, and Liability Act of 1980. For complete classification of this Act to the Code, see Short Title note below and Tables. The Safe Drinking Water Act, referred to in pars. (7), (10), and (39)(B)(iv), is title XIV of act July 1, 1944, as added Dec. 16, 1974, Pub. L. 93–523 , § 2(a), 88 Stat. 1660, as amended, which is classified generally to subchapter XII (§ 300f et seq.) of chapter 6A of this title. Part C of the Safe Drinking Water Act is classified generally to part C (§ 300h et seq.) of subchapter XII of chapter 6A of this title. For complete classification of this Act to the Code, see Short Title note set out under section 201 of this title and Tables. The Magnuson-Stevens Fishery Conservation and Management Act, referred to in pars. (8) and (16), is Pub. L. 94–265 , Apr. 13, 1976, 90 Stat. 331 , as amended, which is classified principally to chapter 38 (§ 1801 et seq.) of Title 16, Conservation. The fishery conservation zone established by this Act, referred to in par. (16), was established by section 101 of this Act ( 16 U.S.C. 1811 ), which as amended generally by Pub. L. 99–659 , title I, § 101(b), Nov. 14, 1986, 100 Stat. 3706 , relates to United States sovereign rights and fishery management authority over fish within the exclusive economic zone as defined in section 1802 of Title 16 . For complete classification of this Act to the Code, see Short Title note set out under section 1801 of Title 16 and Tables. The Clean Air Act, referred to in par. (10), is act July 14, 1955, ch. 360, as amended generally by Pub. L. 88–206 , Dec. 17, 1963, 77 Stat. 392 , and later by Pub. L. 95–95 , Aug. 7, 1977, 91 Stat. 685 . The Clean Air Act was originally classified to chapter 15B (§ 1857 et seq.) of this title. On enactment of Pub. L. 95–95 , the Act was reclassified to chapter 85 (§ 7401 et seq.) of this title. Parts C and D of title I of the Clean Air Act are classified generally to parts C (§ 7470 et seq.) and D (§ 7501 et seq.), respectively, of subchapter I of chapter 85 of this title. For complete classification of this Act to the Code, see Short Title note set out under section 7401 of this title and Tables. The Atomic Energy Act of 1954, referred to in pars. (10) and (22), is act Aug. 1, 1946, ch. 724, as added by act Aug. 30, 1954, ch. 1073, § 1, 68 Stat. 921 , and amended, which is classified generally to chapter 23 (§ 2011 et seq.) of this title. For complete classification of this Act to the Code, see Short Title note set out under section 2011 of this title and Tables. The Solid Waste Disposal Act, referred to in pars. (14), (39)(B)(iv), (vi)(I), (ix), and (41)(B)(i), is title II of Pub. L. 89–272 , Oct. 20, 1965, 79 Stat. 997 , as amended generally by Pub. L. 94–580 , § 2, Oct. 21, 1976, 90 Stat. 2795 , which is classified generally to chapter 82 (§ 6901 et seq.) of this title. Subtitles C and I of the Act are classified generally to subchapters III (§ 6921 et seq.) and IX (§ 6991 et seq.), respectively, of chapter 82 of this title. For complete classification of this Act to the Code, see Short Title note set out under section 6901 of this title and Tables. The Farm Credit Act of 1971, referred to in par. (20)(G)(iv)(III), is Pub. L. 92–181 , Dec. 10, 1971, 85 Stat. 583 , as amended, which is classified generally to chapter 23 (§ 2001 et seq.) of Title 12, Banks and Banking. For complete classification of this Act to the Code, see Short Title note set out under section 2001 of Title 12 and Tables. The Disaster Relief and Emergency Assistance Act, referred to in par. (23), is Pub. L. 93–288 , May 22, 1974, 88 Stat. 143 , as amended, known as the Robert T. Stafford Disaster Relief and Emergency Assistance Act, which is classified principally to chapter 68 (§ 5121 et seq.) of this title. For complete classification of this Act to the Code, see Short Title note set out under section 5121 of this title and Tables. The Federal Water Pollution Control Act, referred to in par. (39)(B)(iv), is act June 30, 1948, ch. 758, as amended generally by Pub. L. 92–500 , § 2, Oct. 18, 1972, 86 Stat. 816 , also known as the Clean Water Act, which is classified generally to chapter 26 (§ 1251 et seq.) of Title 33, Navigation and Navigable Waters. Section 311(c) of the Act was amended generally by Pub. L. 101–380 , title IV, § 4201(a), Aug. 18, 1990, 104 Stat. 523 , and no longer contains provisions directing the publishing of a National Contingency Plan. However, such provisions are contained in section 1321 (d) of Title 33 . For complete classification of this Act to the Code, see Short Title note set out under section 1251 of Title 33 and Tables. The Toxic Substances Control Act, referred to in par. (39)(B)(iv), (viii)(II), is Pub. L. 94–469 , Oct. 11, 1976, 90 Stat. 2003 , as amended, which is classified generally to chapter 53 (§ 2601 et seq.) of Title 15, Commerce and Trade. For complete classification of this Act to the Code, see Short Title note set out under section 2601 of Title 15 and Tables. Amendments
2002—Par. (35)(A). Pub. L. 107–118 , § 223(1), in introductory provisions substituted “deeds, easements, leases, or” for “deeds or” and in concluding provisions substituted “the defendant has satisfied” for “he has satisfied” and inserted before period at end “, provides full cooperation, assistance, and facility access to the persons that are authorized to conduct response actions at the facility (including the cooperation and access necessary for the installation, integrity, operation, and maintenance of any complete or partial response action at the facility), is in compliance with any land use restrictions established or relied on in connection with the response action at a facility, and does not impede the effectiveness or integrity of any institutional control employed at the facility in connection with a response action”. Par. (35)(B). Pub. L. 107–118 , § 223(2), added subpar. (B) and struck out former subpar. (B) which read as follows: “To establish that the defendant had no reason to know, as provided in clause (i) of subparagraph (A) of this paragraph, the defendant must have undertaken, at the time of acquisition, all appropriate inquiry into the previous ownership and uses of the property consistent with good commercial or customary practice in an effort to minimize liability. For purposes of the preceding sentence the court shall take into account any specialized knowledge or experience on the part of the defendant, the relationship of the purchase price to the value of the property if uncontaminated, commonly known or reasonably ascertainable information about the property, the obviousness of the presence or likely presence of contamination at the property, and the ability to detect such contamination by appropriate inspection.” Par. (39). Pub. L. 107–118 , § 211(a), added par. (39). Par. (40). Pub. L. 107–118 , § 222(a), added par. (40). Par. (41). Pub. L. 107–118 , § 231(a), added par. (41). 1999—Par. (20)(D). Pub. L. 106–74 , which directed the amendment of subpar. (D) by inserting “through seizure or otherwise in connection with law enforcement activity” before “involuntary” the first place it appears, could not be executed because the word “involuntary” does not appear in subpar. (D). 1996—Pars. (8), (16). Pub. L. 104–208 , § 101(a) [title II, § 211(b)], substituted “Magnuson-Stevens Fishery” for “Magnuson Fishery”. Par. (20)(E) to (G). Pub. L. 104–208 , § 2502(b), added subpars. (E) to (G). Par. (26). Pub. L. 104–287 substituted “section 60101 (a) of title 49 ” for “the Pipeline Safety Act”. 1994—Par. (26). Pub. L. 103–429 substituted “a hazardous liquid pipeline facility” for “pipeline”. 1988—Par. (23). Pub. L. 100–707 substituted “Disaster Relief and Emergency Assistance Act” for “Disaster Relief Act of 1974”. 1986— Pub. L. 99–499 , § 101(f), struck out “, the term” after “subchapter” in introductory text. Pars. (1) to (10). Pub. L. 99–499 , § 101(f), inserted “The term” and substituted a period for the semicolon at end. Par. (11). Pub. L. 99–499 , § 517(c)(2), amended par. (11) generally. Prior to amendment, par. (11) read as follows: “The term ‘Fund' or ‘Trust Fund' means the Hazardous Substance Response Fund established by section 9631 of this title or, in the case of a hazardous waste disposal facility for which liability has been transferred under section 9607 (k) of this title, the Post-closure Liability Fund established by section 9641 of this title.” Pub. L. 99–499 , § 101(f), inserted “The term” and substituted a period for the semicolon at end. Pars. (12) to (15). Pub. L. 99–499 , § 101(f), inserted “The term” and substituted a period for the semicolon at end. Par. (16). Pub. L. 99–499 , § 101(a), (f), inserted “The term”, struck out “or” after “local government,” inserted “, any Indian tribe, or, if such resources are subject to a trust restriction on alienation, any member of an Indian tribe”, and substituted a period for the semicolon at end. Pars. (17) to (19). Pub. L. 99–499 , § 101(f), inserted “The term” and substituted a period for the semicolon at end. Par. (20)(A). Pub. L. 99–499 , § 101(f), inserted “The term”. Pub. L. 99–499 , § 101(b)(2), amended cl. (iii) generally. Prior to amendment, cl. (iii) read as follows: “in the case of any abandoned facility, any person who owned, operated, or otherwise controlled activities at such facility immediately prior to such abandonment.” Pub. L. 99–499 , § 101(b)(3), in provisions following subcl. (iii), substituted a period for the semicolon at end. Par. (20)(B), (C). Pub. L. 99–499 , § 101(b)(3), substituted “In the case” for “in the case” and a period for the semicolon at end. Par. (20)(D). Pub. L. 99–499 , § 101(b)(1), (f), added subpar. (D). The part of § 101(f) of Pub. L. 99–499 which directed the amendment of par. (20) by changing the semicolon at end to a period could not be executed in view of the prior amendment of par. (20) by § 101(b)(1) of Pub. L. 99–499 which added subpar. (D) ending in a period. Par. (21). Pub. L. 99–499 , § 101(f), inserted “The term” and substituted a period for the semicolon at end. Par. (22). Pub. L. 99–499 , § 101(c), (f), inserted “The term” and “(including the abandonment or discarding of barrels, containers, and other closed receptacles containing any hazardous substance or pollutant or contaminant)”, substituted a period for the semicolon at end. Par. (23). Pub. L. 99–499 , § 101(f), inserted “The terms” and substituted a period for the semicolon at end. Par. (24). Pub. L. 99–499 , § 101(d), (f), inserted “The terms” and substituted “and associated contaminated materials” for “or contaminated materials” and “welfare; the term includes offsite transport and offsite storage, treatment, destruction, or secure disposition of hazardous substances and associated contaminated materials.” for “welfare. The term does not include offsite transport of hazardous substances, or the storage, treatment, destruction, or secure disposition offsite of such hazardous substances or contaminated materials unless the President determines that such actions (A) are more cost-effective than other remedial actions, (B) will create new capacity to manage, in compliance with subtitle C of the Solid Waste Disposal Act [ 42 U.S.C. 6921 et seq.], hazardous substances in addition to those located at the affected facility, or (C) are necessary to protect public health or welfare or the environment from a present or potential risk which may be created by further exposure to the continued presence of such substances or materials;”. The part of § 101(f) of Pub. L. 99–499 which directed amendment of par. (24) by changing the semicolon at end to a period could not be executed in view of prior amendment of par. (24) by § 101(d) of Pub. L. 99–499 which substituted language at end of par. (24) ending in a period for former language ending in a semicolon. Par. (25). Pub. L. 99–499 , § 101(e), (f), inserted “The terms” and “, all such terms (including the terms ‘removal' and ‘remedial action') include enforcement activities related thereto.” The part of § 101(f) of Pub. L. 99–499 which directed amendment of par. (25) by changing the semicolon at end to a period could not be executed in view of prior amendment of par. (25) by § 101(e) of Pub. L. 99–499 inserting language and a period at end of par. (25). Pars. (26), (27). Pub. L. 99–499 , § 101(f), inserted “The terms” and substituted a period for the semicolon at end. Par. (28). Pub. L. 99–499 , § 101(f), inserted “The term” and substituted a period for the semicolon at end. Par. (29). Pub. L. 99–499 , § 101(f), inserted “The terms” and substituted a period for the semicolon at end. Par. (30). Pub. L. 99–499 , § 101(f), inserted “The terms”. Par. (31). Pub. L. 99–499 , § 101(f), inserted “The term” and substituted a period for “; and”. Par. (32). Pub. L. 99–499 , § 101(f), inserted “The terms”. Pars. (33) to (36). Pub. L. 99–499 , § 101(f), added pars. (33) to (36). Par. (37). Pub. L. 99–499 , § 114(b), added par. (37). Par. (38). Pub. L. 99–499 , § 127(a), added par. (38). 1980—Pars. (8), (16). Pub. L. 96–561 substituted “Magnuson Fishery Conservation and Management Act” for “Fishery Conservation and Management Act of 1976”. Effective Date of 1996 Amendment
Section 101 (a) [title II, § 211(b)] of div. A of Pub. L. 104–208 provided that the amendment made by that section is effective 15 days after Oct. 11, 1996. Amendment by section 2502(b) of Pub. L. 104–208 applicable with respect to any claim that has not been finally adjudicated as of Sept. 30, 1996, see section 2505 of Pub. L. 104–208 , set out as a note under section 6991b of this title. Effective Date of 1986 Amendment
Section 4 of Pub. L. 99–499 provided that: “Except as otherwise specified in section 121(b) of this Act [set out as an Effective Date note under section 9621 of this title] or in any other provision of titles I, II, III, and IV of this Act [see Tables for classification], the amendments made by titles I through IV of this Act [enacting subchapter IV of this chapter and sections 9616 to 9626 , 9658 to 9660 , and 9661 of this title and sections 2701 to 2707 and 2810 of Title 10 , Armed Forces, amending sections 6926 , 6928 , 6991 to 6991d , 6991g , 9601 to 9609 , 9611 to 9614 , 9631 , 9651 , 9656 , and 9657 of this title and section 1416 of Title 33 , Navigation and Navigable Waters, and renumbering former section 2701 of Title 10 as section 2721 of Title 10 ] shall take effect on the enactment of this Act [Oct. 17, 1986].” Amendment by section 517(c)(2) of Pub. L. 99–499 effective Jan. 1, 1987, see section 517(e) of Pub. L. 99–499 , set out as an Effective Date note under section 9507 of Title 26 , Internal Revenue Code. Effective Date of 1980 Amendment
Section 238(b) of Pub. L. 96–561 provided that the amendment made by that section is effective 15 days after Dec. 22, 1980. Short Title of 2002 Amendments Pub. L. 107–118 , § 1, Jan. 11, 2002, 115 Stat. 2356 , provided that: “This Act [enacting section 9628 of this title, amending this section and sections 9604 , 9605 , 9607 , and 9622 of this title, and enacting provisions set out as notes under this section and section 9607 of this title] may be cited as the ‘Small Business Liability Relief and Brownfields Revitalization Act'.” Pub. L. 107–118 , title I, § 101, Jan. 11, 2002, 115 Stat. 2356 , provided that: “This title [amending sections 9607 and 9622 of this title and enacting provisions set out as a note under section 9607 of this title] may be cited as the ‘Small Business Liability Protection Act'.” Pub. L. 107–118 , title II, § 201, Jan. 11, 2002, 115 Stat. 2360 , provided that: “This title [enacting section 9628 of this title and amending this section and sections 9604 , 9605 , and 9607 of this title] may be cited as the ‘Brownfields Revitalization and Environmental Restoration Act of 2001'.” Short Title of 1996 Amendment
Section 2501 of div. A of Pub. L. 104–208 provided that: “This subtitle [subtitle E (§§ 2501–2505) of title II of div. A of Pub. L. 104–208 , amending this section and sections 6991b and 9607 of this title and enacting provisions set out as a note under section 6991b of this title] may be cited as the ‘Asset Conservation, Lender Liability, and Deposit Insurance Protection Act of 1996'.” Short Title of 1992 Amendment Pub. L. 102–426 , § 1, Oct. 19, 1992, 106 Stat. 2174 , provided that: “This Act [amending section 9620 of this title and enacting provisions set out as a note under section 9620 of this title] may be cited as the ‘Community Environmental Response Facilitation Act'.” Short Title of 1986 Amendment
Section 1 of Pub. L. 99–499 provided that: “This Act [enacting subchapter IV of this chapter and sections 9616 to 9626 , 9658 to 9662 , 11001 to 11005 , 11021 to 11023 , and 11041 to 11050 of this title, sections 2701 to 2707 and 2810 of Title 10 , Armed Forces, and sections 59A , 4671 , 4672 , 9507 , and 9508 of Title 26 , Internal Revenue Code, amending this section, sections 6926 , 6928 , 6991 to 6991d , 6991g , 9602 to 9609 , 9611 to 9614 , 9631 , 9651 , 9656 , and 9657 of this title, sections 26 , 164 , 275 , 936 , 1561 , 4041 , 4042 , 4081 , 4221 , 4611 , 4612 , 4661 , 4662 , 6154 , 6416 , 6420 , 6421 , 6425 , 6427 , 6655 , 9502 , 9503 , and 9506 of Title 26 , and section 1416 of Title 33 , Navigation and Navigable Waters, renumbering former section 2701 of Title 10 as section 2721 of Title 10 , repealing sections 9631 to 9633 , 9641 , and 9653 of this title and sections 4681 and 4682 of Title 26 , and enacting provisions set out as notes under this section, sections 6921 , 6991b , 7401 , 9620 , 9621 , 9658 , 9660 , 9661 , and 11001 of this title, section 2703 of Title 10 , sections 1, 26, 4041, 4611, 4661, 4671, 4681 , 9507, and 9508 of Title 26, and section 655 of Title 29 , Labor] may be cited as the ‘Superfund Amendments and Reauthorization Act of 1986'.” Short Title
Section 1 of Pub. L. 96–510 provided: “That this Act [enacting this chapter, section 6911a of this title, and sections 4611 , 4612 , 4661 , 4662 , 4681 , and 4682 of Title 26 , Internal Revenue Code, amending section 6911 of this title, section 1364 of Title 33 , Navigation and Navigable Waters, and section 11901 of Title 49 , Transportation, and enacting provisions set out as notes under section 6911 of this title and sections 1 and 4611 of Title 26 ] may be cited as the ‘Comprehensive Environmental Response, Compensation, and Liability Act of 1980'.” Transfer of Functions
For transfer of certain functions from Nuclear Regulatory Commission to Chairman thereof, see Reorg. Plan No. 1 of 1980, 45 F.R. 40561 , 94 Stat. 3585 , set out as a note under section 5841 of this title. Territorial Sea and Contiguous Zone of United States
For extension of territorial sea and contiguous zone of United States, see Proc. No. 5928 and Proc. No. 7219, respectively, set out as notes under section 1331 of Title 43 , Public Lands. Definitions
Section 2 of Pub. L. 99–499 provided that: “As used in this Act [see Short Title of 1986 Amendment note above]— “(1) CERCLA.—The term ‘CERCLA' means the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 ( 42 U.S.C. 9601 et seq.). “(2) Administrator.—The term ‘Administrator' means the Administrator of the Environmental Protection Agency.”
Cooperation
Under Section D(9), the regulated entity must cooperate as required by EPA and provide the Agency with the information it needs to determine Policy applicability. The entity must not hide, destroy or tamper with possible evidence following discovery of potential environmental violations. In order for the Agency to apply the Policy fairly, it must have sufficient information to determine whether its conditions are satisfied in each individual case. In general, EPA requests audit reports to determine the applicability of this Policy only where the information contained in the audit report is not readily available elsewhere and where EPA decides that the information is necessary to determine whether the terms and conditions of the Policy have been met. In the rare instance where an EPA Regional office seeks to obtain an audit report because it is otherwise unable to determine whether Policy conditions have been met, the Regional office will notify the Office of Regulatory Enforcement at EPA headquarters.
Entities that disclose potential criminal violations may expect a more thorough review by the Agency. In criminal cases, entities will be expected to provide, at a minimum, the following: access to all requested documents; access to all employees of the disclosing entity; assistance in investigating the violation, any noncompliance problems related to the disclosure, and any environmental consequences related to the violations; access to all information relevant to the violations disclosed, including that portion of the environmental audit report or documentation from the compliance management system that revealed the violation; and access to the individuals who conducted the audit or review.
F. Opposition to Audit Privilege and Immunity
The Agency believes that the Audit Policy provides effective incentives for self-policing without impairing law enforcement, putting the environment at risk or hiding environmental compliance information from the public. Although EPA encourages environmental auditing, it must do so without compromising the integrity and enforceability of environmental laws. It is important to distinguish between EPA's Audit Policy and the audit privilege and immunity laws that exist in some States. The Agency remains firmly opposed to statutory and regulatory audit privileges and immunity. Privilege laws shield evidence of wrongdoing and prevent States from investigating even the most serious environmental violations. Immunity laws prevent States from obtaining penalties that are appropriate to the seriousness of the violation, as they are required to do under Federal law. Audit privilege and immunity laws are unnecessary, undermine law enforcement, impair protection of human health and the environment, and interfere with the public's right to know of potential and existing environmental hazards.
Statutory audit privilege and immunity run counter to encouraging the kind of openness that builds trust between regulators, the regulated community and the public. For example, privileged information on compliance contained in an audit report may include information on the cause of violations, the extent of environmental harm, and what is necessary to correct the violations and prevent their recurrence. Privileged information is unavailable to law enforcers and to members of the public who have suffered harm as a result of environmental violations. The Agency opposes statutory immunity because it diminishes law enforcement's ability to discourage wrongful behavior and interferes with a regulator's ability to punish individuals who disregard the law and place others in danger. The Agency believes that its Audit Policy provides adequate incentives for self-policing but without secrecy and without abdicating its discretion to act in cases of serious environmental violations.
Privilege, by definition, invites secrecy, instead of the openness needed to build public trust in industry's ability to self-police. American law reflects the high value that the public places on fair access to the facts. The Supreme Court, for example, has said of privileges that, ‘‘ [w]hatever their origins, these exceptions to the demand for every man's evidence are not lightly created nor expansively construed, for they are in derogation of the search for truth.'' United States v. Nixon , 418 U.S. 683, 710 (1974). Federal courts have unanimously refused to recognize a privilege for environmental audits in the context of government investigations. See, e.g., United States v. Dexter Corp., 132 F.R.D. 8, 10 (D.Conn. 1990) (application of a privilege ‘‘would effectively impede [EPA's] ability to enforce the Clean Water Act, and would be contrary to stated public policy.'') Cf. In re Grand Jury Proceedings, 861 F. Supp. 386 (D. Md. 1994) (company must comply with a subpoena under Food, Drug and Cosmetics Act for self-evaluative documents).
Applicability
(1) This Policy applies to settlement of claims for civil penalties for any violations under all of the Federal environmental statutes that EPA administers, and supersedes any inconsistent provisions in media-specific penalty or enforcement policies and EPA's 1995 Policy on ‘‘Incentives for Self-Policing: Discovery, Disclosure, Correction and Prevention of Violations.''
(2) To the extent that existing EPA enforcement policies are not inconsistent, they will continue to apply in conjunction with this Policy. However, a regulated entity that has received penalty mitigation for satisfying specific conditions under this Policy may not receive additional penalty mitigation for satisfying the same or similar conditions under other policies for the same violation, nor will this Policy apply to any violation that has received penalty mitigation under other policies. Where an entity has failed to meet any of conditions D(2) through D(9) and is therefore not eligible for penalty relief under this Policy, it may still be eligible for penalty.
Relief under other EPA media-specific enforcement policies in recognition of good faith efforts, even where, for example, the violation may have presented an imminent and substantial endangerment or resulted in serious actual harm.
(3) This Policy sets forth factors for consideration that will guide the Agency in the exercise of its enforcement discretion. It states the Agency's views as to the proper allocation of its enforcement resources. The Policy is not final agency action and is intended as guidance. This Policy is not intended, nor can it be relied upon, to create any rights enforceable by any party in litigation with the United States . As with the 1995 Audit Policy, EPA may decide to follow guidance provided in this document or to act at variance with it based on its analysis of the specific facts presented. This Policy may be revised without public notice to reflect changes in EPA's approach to providing incentives for self-policing by regulated entities, or to clarify and update text.
(4) This Policy should be used whenever applicable in settlement negotiations for both administrative and civil judicial enforcement actions. It is not intended for use in pleading, at hearing or at trial. The Policy may be applied at EPA's discretion to the settlement of administrative and judicial enforcement actions instituted prior to, but not yet resolved, as of the effective date of this Policy.
(5) For purposes of this Policy, violations discovered pursuant to an environmental audit or compliance management system may be considered voluntary even if required under an Agency ‘‘partnership'' program in which the entity participates, such as regulatory flexibility pilot projects like Project XL. EPA will consider application of the Audit Policy to such partnership program projects on a project-by-project basis.
(6) EPA has issued interpretive guidance addressing several applicability issues pertaining to the Audit Policy. Entities considering whether to take advantage of the Audit Policy should review that guidance to see if it addresses any relevant questions. The guidance can be found on the Internet at www.epa.gov/oeca/ ore/apolguid.html.
H. Public Accountability
EPA will make publicly available the terms and conditions of any compliance agreement reached under this Policy, including the nature of the violation, the remedy, and the schedule for returning to compliance.
I. Effective Date
in Kellev v. EPA,4 the Circuit 'Courtof Appeals for.
the District of Columbia vacated the Rule on the ground that 'EPA
lacked authority to issue'the Rule as a binding regulation.
Nevertheless, the Kpllev decision did not preclude.EPAand DOJ from
following the provisions of the Rule as enforcement policy, and the
agencies have generally done so.
This revised Policy is effective May 11, 2000.
Dated: March 30, 2000.
Steven A. Herman,
Assistant Administrator for Enforcement and Compliance Assurance.
DAYTON, Ohio (January 5, 2011)… Woolpert announced it was recently selected by the Sacramento District, United States Army Corps of Engineers (USACE) for a five-year, $30 million indefinite-delivery, indefinite-quantity (IDIQ) contract to provide master planning and geographic information system (GIS) services for military and civil works projects worldwide.
Unique aspects of this IDIQ include both its volume and worldwide capacity, meaning Woolpert may be tasked directly with the Sacramento District, or in coordination with other USACE districts, to provide services across the Department of Defense (DoD) and other federal agencies, as well as municipalities, counties, state or other local agencies. Possible services for the contract include developing Army Real Property Master plans or acquiring aerial photography and developing geospatial data. This contract also supports the ongoing efforts of Headquarters Air Combat Command (HQ ACC) to establish sustainability baselines and LEED-focused installation design and development guides under its Sustainable Installations program.
“We're pleased to have been selected by the Sacramento District for this contract,” said David Ziegman, Woolpert vice president and practice leader for military design services. “We've had the opportunity to serve the Sacramento District for the past several years, providing master planning and geospatial services. Our team looks forward to continuing this support over the next several years working directly with the Sacramento District and its customers, or USACE customers worldwide.”
About Woolpert
Woolpert, ranked by Engineering News-Record as a top national design firm, provides professional engineering, architecture, planning, enterprise information management, water management, surveying, and photogrammetry and remote sensing services to clients in the public and private sectors. Founded in 1911, Woolpert's innovative design approach and commitment to the creative application of technology have grown the firm into a leader in the consulting industry. With nearly 650 professionals in 22 offices located throughout the U.S., Woolpert's collaborative, multidisciplinary approach is driven by great people, great clients and great projects.
NPL DEFERRAL.—
(1) DEFERRAL TO STATE VOLUNTARY CLEANUPS.—At the request
of a State and subject to paragraphs (2) and (3), the
President generally shall defer final listing of an eligible response
site on the National Priorities List if the President determines
that—
(A) the State, or another party under an agreement
with or order from the State, is conducting a response action
at the eligible response site—
(i) in compliance with a State program that specifically
governs response actions for the protection of
public health and the environment; and
(ii) that will provide long-term protection of
human health and the environment; or
(B) the State is actively pursuing an agreement to perform
a response action described in subparagraph (A) at
the site with a person that the State has reason to believe
is capable of conducting a response action that meets the
requirements of subparagraph (A).
(2) PROGRESS TOWARD CLEANUP.—If, after the last day of
the 1-year period beginning on the date on which the President
proposes to list an eligible response site on the National Priorities
List, the President determines that the State or other
party is not making reasonable progress toward completing a
response action at the eligible response site, the President may
list the eligible response site on the National Priorities List.
(3) CLEANUP AGREEMENTS.—With respect to an eligible response
site under paragraph (1)(B), if, after the last day of the
1-year period beginning on the date on which the President
proposes to list the eligible response site on the National Priorities
List, an agreement described in paragraph (1)(B) has not
been reached, the President may defer the listing of the eligible
response site on the National Priorities List for an additional
period of not to exceed 180 days if the President determines
deferring the listing would be appropriate based on—
(A) the complexity of the site;
(B) substantial progress made in negotiations; and
(C) other appropriate factors, as determined by the
President.
* The social media links provided are for reference only. FEMA does not endorse any non-government Web sites, companies or applications.
Federal Emergency Management Agency
U.S. Department of Homeland Security
500 C Street SW, Washington, D.C. 20472
(202) 646-2500
EPA has primary responsibility for implementing Superfund, but because of the complexity of hazardous waste issues,
the Agency has relied on the respective strengths of the following Federal partners to carry out its mission of protecting
human health and the environment:
Federal Emergency Management Agency
(FEMA) provides support to State, Tribal, and local
governments and to the private sector for responding
to releases of hazardous substances. Some of FEMA’s
activities include: distributing information; planning for
emergencies; training for emergencies; membership
and participation in the 13 Regional Response Teams;
and the administration of $5 million each year to State
governments and Tribes for hazardous materials
(HAZMAT) training. http://www.fema.gov/pte/carep.htm
National Institute for Environmental Health Sciences
(NIEHS) sponsors two major Superfund programs:
the Hazardous Substances Basic Research
and Training Program and the Worker Education and
Training Program. These two programs have successfully
trained over 800,000 workers across the country
by providing nearly 42,000 classroom and hands-on
training courses that account for over 12 million contact
hours of training. http://www.niehs.nih.gov
National Oceanic and Atmospheric Administration
(NOAA) acts on behalf of the Secretary of
Commerce as a natural resource trustee. NOAA trust
resources include coastal and marine fisheries, marine
mammals, resources of National Marine Sanctuaries
and Estuarine Research Reserves, tidal wetlands, and
other coastal habitats. Through the Coastal Protection
and Restoration Program, NOAA has worked with
EPA, PRPs, and other Federal, State, and Tribal trustees
to initiate cleanup and restoration activities at over
500 sites, ensuring more environmentally protective
remedies and cleaner, healthier coastal habitats. http:/
/www.noaa.gov
United States Coast Guard
(USCG) continuously
maintains facilities for the surveillance of oil discharges
and hazardous substance releases that occur in the
coastal zone. USCG administers the National Response
Center (NRC) which provides a centralized means for
coordinating national response logistics for responding
to releases. NRC also maintains a database of
critical hazardous substance information that can
quickly be provided to responders in order to help
identify a substance and thereby correctly choose an
appropriate response action. http://www.uscg.mil
Agency for Toxic Substances and Disease Registry
(ATSDR) contributes to the understanding of the negative health
effects associated with exposure to hazardous substances, identifies
parties at risk of exposure, and intervenes to protect communities
from exposure. Since ATSDR was established, it has conducted
assessments or consultations at more than 3,000 hazardous waste
sites. http://www.atsdr.cdc.gov Army Corps of Engineers
(USACE) provides specialized equipment
and personnel to assist with the design and construction of
large scale remedial actions at Superfund sites. In addition,
USACE’s Center of Expertise and its Rapid Response Program provide
nationwide support to Superfund. USACE has received nearly
5,000 assignments over the last 18 years. http://hq.environmental.
usace.army.mil
Department of Agriculture
(USDA) is responsible for preventing
releases at USDA facilities as well as the efficient management
and cleanup of hazardous materials when releases occur. USDA
has inventoried and characterized over 2,000 sites and completed
over 300 removal actions and other responses. http://www.usda.gov
Department of Defense
(DoD) responds to releases and threatened
releases at military facilities. The Defense Environmental Restoration
Program (DERP) has responded at 95 percent of the nearly
28,000 potentially contaminated DoD sites – and cleaned up 62
percent of these sites. http://www.denix.osd.mil Department of Energy
(DOE) ensures cleanup of radioactive,
chemical, and hazardous wastes that were left after 50 years of
nuclear weapons production, and associated research and development
activities. By the end of 1999, a total of 6,810 releases had
been identified – of which 4,053 were in the assessment phase, 876
were in the cleanup phase, and 1,881 had been completed. Three
DOE sites have been cleaned up and deleted from the NPL. http:/
/www.em.doe.gov Department of the Interior
(DOI) operates programs in support
of EPA and the U.S. Coast Guard for preparedness and response
actions, and performs natural resource damage assessment and
restoration functions during an oil discharge or a release of hazardous
materials. DOI is designated as a Natural Resource Trustee
and is also responsible for developing the regulations to determine
the extent of harm to a natural resource. http://www.doi.gov/
indexj.html
Department of Justice
(DOJ) represents EPA and other Federal
agencies in judicial actions in Federal Court to enforce the provisions
of CERCLA that require PRPs to perform or pay for site
cleanup. DOJ has worked with EPA to transform the Superfund
program by prompting responsible parties to enter into settlements
or voluntarily comply with administrative orders, rather than litigating
with the government. DOJ also represents the Federal trustees
when there is a need to recover damages resulting from injuries to
natural resources. http://www.usdoj.gov/enrd
Thanking Our Federal Partners
For Further Information . . .
on the Superfund program, please consult
www.epa.gov/superfund
or contact William O. Ross
at (703) 603-8798 or ross.william@epa.gov.
Department of Toxic Substances Control v. Interstate Non-Ferrous Corp., 99 F. Supp.2d 1123 (E.D. Cal. 2000).
The Court held that SREA applies to non-federal CERCLA enforcement actions pending at the time of its enactment. Therefore, the SREA exemption applies to a state environmental agency's CERCLA Sections 107(a) and 113(g) actions against several scrap metal recyclers. In enacting SREA, Congress did not explicitly mention every class of pending case to which Section 127 liability exemption applies. Nevertheless, SREA’s structure, express language, purpose, and legislative history militate in favor of retrospectivity as to all pending actions brought by any party except the United States.
The Court held that Congressional intent that SREA apply retrospectively to pending cases initiated by parties other than the United States could be gleaned from: [1] the headings used in SREA indicating that Congress intended to clarify, not change, the law; [2] SREA’s stated purpose, which was to exempt eligible recyclers from liability; [3] language throughout SREA, which fixes different requirements based on when the transaction occurred; [4] and, inter alia, the statement of Senator Lott, a chief co-sponsor of SREA, which was not “legislative history,” but was to be accorded substantial weight. The Court, however, did not find SREA to be retroactive, meaning that it did not find that SREA attaches new legal consequences to prior acts, because: [1] no new liability was created, and the State of California’s “rights” were not impaired (it would have cleaned up the site whether or not it thought it could recover costs from the parties it sued); and because [2] SREA clarified existing law, it did not change it.
Nevertheless, the retrospective application of the exemption to pending actions does not result in an automatic exemption because any party seeking to avoid liability under Section 127 must prove by a preponderance of the evidence all of the exemption requirements. In addition, the exemption does not apply retroactively to actions resolved before the passage of SREA.
Some commenters presented the view that CERCLA does not authorize EPA to respond to releases of mining wastes, and that sites involving mining wastes should not be included on the NPL. This view is based on the interpretation that mining wastes are not considered hazardous substances under CERCLA. CERCLA includes in its definition of hazardous substances materials that constitute hazardous wastes under the Resource Conservation and Recovery Act (RCRA). In the 1980 amendments to RCRA, the regulation of mining wastes under Subtitle C of RCRA was temporarily suspended and that suspension is presently in effect. For that reason, the commenters believe that mining wastes should not be considered hazardous substances under CERCLA.
EPA disagrees with the commenters' interpretation. The Agency believes that mining wastes can be considered hazardous substances under CERCLA if it meets any of the other statutory criteria (e.g., if the material is also a hazardous air pollutant listed under section 112 of the Clean Air Act). More importantly, however, EPA's authority to respond to mining waste releases, and the Agency's ability to list mining waste sites on the NPL, does not depend on whether mining wastes are hazardous substances. Section 104(a)(l) of CERCLA authorizes EPA to respond to releases of not only "hazardous substances," but also "any pollutant or contaminant." "Pollutant or contaminant" is defined very broadly in section 104(a)(2) to include essentially any substance that may cause an adverse effect on human health. EPA is convinced that mining wastes can satisfy these minimal criteria, that the Agency therefore has the authority to respond to releases of mining wastes, and that listing of mining waste sites on the NPL is appropriate.
Sec. 9604. Response authorities
(3) Limitations on Response.--The President shall not provide for a removal or remedial action under this section in response to a release or threat of release-- (A) of a naturally occurring substance in its unaltered form, or altered solely through naturally occurring processes or phenomena, from a location where it is naturally found;
As described above, however, the response authorities of CERCLA are very broad. As long as EPA has the authority to respond, and no other Federal statute provides authority comparable to CERCLA, the Agency has the obligation at least to evaluate the precise extent of the risk and the possible response actions at all sites that upon preliminary investigation appear to present a significant risk. EPA should also remain free at least to consider all types of response actions at all sites in order to determine which is the most appropriate and cost-effective, and should not limit itself to considering only removal actions at a particular class of facilities. Inclusion of the NPL is appropriate in order to begin the process of determining how to address such sites. Since inclusion on the NPL does not determine whether response actions will be taken or what response is appropriate, EPA is free to develop an approach for responding to mining waste sites that takes into account any unique features of such sites.
Comments also presented the view that the HRS is not an appropriate tool to estimate the risk to health and the environment presented by mining waste sites.
They pointed out that the HRS does not consider concentration levels at the point of impact, but rather the mere presence of the substance in the environment. As explained in Part VII below, however, the purpose of scoring for an observed release without taking level of concentration into account is simply to reflect the likelihood that the subject substances will migrate into the environment, which in the case of an observed release is 100 percent. Future releases, or even current releases for which concentration data do not exist, may raise the level of concentration to the point that it presents a greater risk than the release first observed. While releases from mining waste sites may be somewhat less likely than releases of man-made chemical substances to ever reach extremely high concentrations, harmful concentrations can occur from mining waste sites and the distinction is not sufficient to invalidate the HRS as an appropriate model for scoring mining waste sites.
Another comment was that the locations of mining waste sites are generally rural, so that the only sizable target population are far downstream. The comment alleged that these populations are considered in the HRS scoring but in reality may never be affected. This assumption, however, is false. The HRS considers only those persons living within a three mile radius of the site as constituting the target population. If a mining waste site has a high score for this factor, it indicates that despite the fact that the locations of such sites typically are rural, this particular site has a significant number of people within three miles.
Federal Register Notice
48184 - 48189 Federal Register / Vol. 54, No. 223 / Tuesday, November 21, 1989 / Rules and Regulations
The Environmental Protection Agency ("EPA") is amending the National Priorities List ("NPL"). The NPL is appendix B of the National Oil and Hazardous Substances Pollution Contingency Plan ("NCP"), 40 CFR Part 300. The Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (CERCLA) requires that the NCP include a list of national priorities among the known releases or threatened releases of hazardous substances, pollutants, or contaminants throughout the United States, and that the list be revised at least annually. The NPL, initially promulgated on September 8, 1983 (48 FR 40658), constitutes this list and is being revised today in the following way:
The addition of Radium Chemical Co. Inc., in Woodside, New York, New York, and Forest Glen Mobile Home Subdivision, in Niagara Falls, New York;
the addition of 27 Federal facility sites; and
the expansion of the definition of a previously listed Federal facility site.
After carefully reviewing public comments on these sites, EPA has determined that they meet the eligibility requirements of the NPL and are consistent with the Agency's listing policies. Information supporting these actions is contained in the Superfund Public Dockets.
EFFECTIVE DATE:
The effective date for this amendment to the NCP shall be December 21, 1989. CERCLA section 305 provides for a legislative veto of regulations promulgated under CERCLA. Although INS v. Chadha, 462 U.S. 919, 103 S. Ct. 2764 (1983), cast the validity of the legislative veto into question, EPA has transmitted a copy of this regulation to the Secretary of the Senate and the Clerk of the House of Representatives. If any action by Congress calls the effective date of this regulation into question, the Agency will publish a notice of clarification in the Federal Register .
Addresses for the Headquarters and Regional dockets follow. For further details on what these dockets contain, see Section I of the " SUPPLEMENTARY INFORMATION " portion of this preamble.
Tina Maragousis
Headquarters, U.S. EPA CERCLA Docket Office, OS-245
Waterside Mall
401 M Street, SW.
Washington, DC 20460
202/382-3046
Evo Cunha
Region 1, U.S. EPA Waste Management Records Center, HES-CAN 6
J.F. Kennedy Federal Building
Boston, MA 02203
617/565-3300
U.S. EPA Region 2
Document Control Center, Superfund Docket
26 Federal Plaza, 7th Floor, Room 740
New York, NY 10278
Latchmin Serrano, 212/264-5540
Ophelia Brown, 212/264-1154
Gayle Alston
Region 4, U.S. EPA Library, Room G-6
345 Courtland Street, NE.
Atlanta, GA 30365
404/347-4216
Cathy Freeman
Region 5, U.S. EPA, 5 HS-12
230 South Dearborn Street
Chicago, IL 60604
312/886-6214
Dolores Eddy
Region 8, U.S. EPA Library
999 18th Street, Suite 500
Denver, CO 80202-2405
303/293-1444
Lisa Nelson
Region 9, U.S. EPA Library, 6th Floor
215 Fremont Street
San Francisco, CA 94105
415/768-1377
David Bennett
Region 10, U.S. EPA, 9th Floor
1200 6th Avenue, Mail Stop HW-093
Seattle, WA 98101
206/442-2103
FOR FURTHER INFORMATION CONTACT:
Martha Otto
Hazardous Site Evaluation Division
Office of Superfund Remediation Technology Innovation (0S-230)
U.S. Environmental Protection Agency
401 M Street, SW.
Washington, DC 20460
or the Superfund Hotline, Phone (800) 424-9346 or (382-3000 in the Washington, DC, metropolitan area).
SUPPLEMENTARY INFORMATION:
Table of Contents
I.
Introduction
II.
Purpose and Implementation of the NPL
III.
NPL Update Process
IV.
Contents of This NPL Update
V.
Response to Comments
VI.
Regulatory Impact Analysis
VII.
Regulatory Flexibility Act Analysis
Institutional Controls in CERCLA Remedies
The procedures for evaluating and selecting remedies conducted under CERCLA authority were
promulgated in a regulation known as the National Contingency Plan (NCP), and codified in 40 CFR
Part 300. In the NCP, EPA stated that institutional controls should be used primarily to supplement
engineering controls, but did not forbid the use of institutional controls as the sole remedy. Specifically,
the following language on the use of institutional controls is provided in 40 CFR Part 300.430:
Institutional controls may be used during the conduct of the remedial
investigation/feasibility study (RI/FS) and implementation of the remedial action and,
where necessary, as a component of the completed remedy. The use of institutional
controls shall not substitute for active response measures (e.g., treatment and/or
containment of source material, restoration of ground waters to their beneficial uses) as
the sole remedy unless such active measures are determined not to be practicable,
based on the balancing of trade-offs among alternatives that is conducted during the
selection of [the] remedy. [40 CFR 300.430 (a) (iii) (D)]
CERCLA Remedy Selection Criteria
The EPA has established nine decision criteria that are to be used for balancing trade-offs, evaluating,
and selecting remedies. These nine criteria are grouped into three categories:
Threshold criteria that must be met to be considered eligible for selection;
• Overall protection of human health and the environment;
• Compliance with applicable or relevant and appropriate requirements (ARARs);
Primary balancing criteria;
• Long-term effectiveness and permanence;
• Reductions of toxicity, mobility, or volume through treatment;
• Short-term effectiveness;
• Implementability;
• Cost;
Modifying criteria;
• State acceptance; and
• Community acceptance.
When selecting institutional controls as part of a remedy or as the sole remedy, the NCP prescribes that
permanent solutions should be used to the maximum extent practicable and considers the preference for
treatment as a principal element of a remedy (40 CFR 300.430 (f)). As with all other remedies,
institutional controls need to be evaluated in terms of the nine CERCLA criteria.
EPA Guidance
Although the NCP regulation specifies the conditions under which institutional controls can be
incorporated into a remedy, it does not provide specific guidance on how to incorporate them into the
remedy selection process. To clarify EPA’s intent and address reasonable assumptions in the remedy
selection process, EPA issued a directive entitled “Land Use in the CERCLA Remedy Selection
Process.”4 This directive primarily addresses the role of land use in remedy selection, but also provides
insight into EPA’s position on the use of institutional controls. In this document, EPA specifies that
institutional controls should be evaluated and implemented with the same degree of care as is given to
other elements of the remedy. The directive states that in evaluating a remedy that includes an
institutional control, EPA should determine:
• The type of institutional control to be used;
• The existence of the authority to implement the institutional control; and
• The appropriate entities’ resolve and ability to implement the institutional control.
CERCLA also requires that federal agencies transferring remediated property to non-federal agencies
include a covenant in the deed that states “all action necessary to protect human health and the
environment has been taken with respect to any hazardous substances remaining on the property.”5
CERCLA requires federal agencies to demonstrate to EPA that a remedy is “operating properly and
successfully” before the federal agency can provide the covenant required in the deed.6 If remedial
action is necessary after the property has been transferred, the federal government retains the
responsibility for any contamination that occurred before the property transfer. Exhibit 2-1 provides
more detail on CERCLA “operating properly and successfully” determinations.
EPA has developed additional guidance
on the use of institutional controls for
federal facilities being transferred under
CERCLA 120 (h) (3).7 This guidance
establishes the criteria that a federal
facility must demonstrate to EPA in order
for EPA to make the determination that a
remedy is “operating properly and
successfully.” This guidance applies to all
federal facilities where institutional
controls are part of the selected remedy
and the federal agency is planning on
transferring that property to a non-federal
entity. It does not address whether or
not an institutional control is an
appropriate remedy or remedy
component for a particular site; however,
it does state that if the institutional control
can not meet the criteria set forth in the
guidance, then the use of institutional
controls should be reconsidered. The
criteria set forth in the guidance are
summarized in Exhibit 2-2.
Exhibit 2-1
CERCLA “Operating Properly and Successfully”
Determinations
CERCLA states that, for purposes of the covenant, all
necessary remedial action has been taken if (a) the
construction and installation of the approved remedial design
has been completed and (b) the federal agency demonstrated
to EPA that the remedy was “operating properly and
successfully.”
A remedy is operating “properly” if it is operating as
designed. A remedy is operating “successfully” if its
operation will achieve the cleanup goals specified in the
record of decision and it will be protective of human health
and the environment.*
In certain circumstances, CERCLA allows the federal agency
to transfer property before all necessary remedial action has
been taken. This early transfer can take place if the EPA or
state governor (depending on the site’s NPL status) makes
the following findings:
• the property is suitable for transfer based on the
intended use;
• the deed provides for necessary use restrictions and
response and remedial actions;
• the public has been informed of the early transfer
request; and
• the transfer will not substantially delay response
action at the site. **
* US EPA, Office of Solid Waste and Emergency Response,
Guidance for Evaluation of Federal Agency Demonstrations
that Remedial Actions are Operating Properly and
Successfully Under CERCLA Section 120(h)(3), August
1996 (interim draft).
Exhibit 2-2
Criteria for Institutional Controls
at Federal Facilities Being Transferred
Under CERCLA 120 (h)
• A legal description of the real property.
• A description of the anticipated future use(s) for the
site.
• Identification of the residual hazard or risk.
• The specific institutional control language in
substantially the same form as it will appear in the
transfer document and a description of the institutional
controls and the legal authority for the implementation
of these controls.
• A statement explaining, in the professional opinion of
the transferring agency, that the institutional controls
have been or will be established in conformance with
the legal requirements and how they will be enforceable
against future transferees and successors.
• A description of who will be responsible for monitoring
and the frequency of monitoring.
• A description of the procedure that will be used to
report violations or failures of institutional controls.
• A description of the procedure that will be used to
enforce against violations.
• Assurance that the transferring federal agency will
verify maintenance of the institutional control on a
periodic basis.
Federal Land Use Laws
Regardless of which regulatory framework results in institutional controls being selected as part of a
remedy, federal land use laws will affect the use of institutional controls if the land is going to be re-used
by some organization or agency other than DOE, or if the land will be leased, sold, or granted to other
parties.
The DOE can allow re-use of land under the AEA, the DOE Organization Act, or the Hall Amendment
(an amendment to the DOE Organization Act) but each of these three vehicles imposes certain
restrictions. If the area or site that will require institutional controls is being considered for re-use by
any organization other than DOE, the DOE-certified realty specialist should be contacted to determine
the site’s legal status and to clarify how the use of institutional controls may be affected. An in depth
discussion of the impacts of each of these land-transfer vehicles is available in “Resourceful Reuse: A
Guide to Planning Future Land Uses of Department of Energy Sites.”
When DOE does sell or grant land, it retains “ultimate responsibility for monitoring, maintaining and
enforcing the institutional controls” associated with the land.17 This on-going liability for the
effectiveness of institutional controls makes it imperative for ERPMs to fully understand the institutional
controls available to them and the responsibilities inherent in their use if property will be transferred.
Legal Status of Land
The methods available to DOE for re-using land depend on how DOE initially obtained use of the land.
Almost all of the land used by DOE can be categorized by its legal status as either acquired or
withdrawn land. Acquired land was land originally purchased by DOE from private owners.
Withdrawn land is land that is held in the public domain but reserved by the Department of the Interior
(DOI) for a federal agency such as DOE.
Under the Federal Land Policy and Management Act, withdrawn land that is excess to DOE is
relinquished to the DOI to be returned to the public domain. Withdrawn land that is temporarily not
needed by DOE can be leased with DOI approval.
When acquired land is excess to DOE, the Department reports that land use status to the General
Services Administration (GSA) for GSA disposition of the land. The procedure for reporting excess
acquired land is spelled out in the Federal Property and Administrative Services Act and its
accompanying legislation. However, DOE can also dispose of the land under the authority of its
enabling legislation. The Department can also lease acquired land if it is temporarily not needed.
16 “In the event radioactive decay cannot result in acceptable risk levels within a reasonable and
acceptable period of time, then either an alternative action must be chosen that will accomplish that risk reduction, or
the ROD must include arrangements for long-term institutional controls” as per the Tennessee Guidance Policy on
Perpetual Institutional Controls. State of Tennessee, January 21, 1998, Tennessee Guidance Policy on Natural
Attenuation and ARAR Waivers for Oak Ridge Reservation CERCLA Decisions.
17 U.S. Environmental Protection Agency, Institutional Controls and Transfer of Real Property under
CERCLA Section 120 (h)(3)(A), (B), or (C), February 2000
In 1980, Congress enacted the Comprehensive Environmental Response, Compensation, and Liability Act, 42 U.S.C. 9601-9657 ("CERCLA" or "the Act") in response to the dangers of uncontrolled or abandoned hazardous waste sites. CERCLA was amended on October 17, 1986, by the Superfund Amendments and Reauthorization Act ("SARA"), Public Law No. 99-499, stat. 1613 et seq . To implement CERCLA, the Environmental Protection Agency ("EPA" or "the Agency") promulgated the revised National Oil and Hazardous Substances Pollution Contingency Plan ("NCP"), 40 CFR part 300, on July 16, 1982 (47 FR 31180), pursuant to CERCLA section 105 and Executive Order 12316 (46 FR 42237, August 20, 1981). The NCP further revised by EPA on September l6, 1985 (50 FR 37624) and November 20, 1985 (50 FR 47912), sets forth the guidelines and procedures needed to respond under CERCLA to releases and threatened releases of hazardous substances, pollutants, or contaminants. On December 21, 1988 (53 FR 51394), EPA proposed revisions to the NCP in response to SARA.
Section 105(a)(8)(A) of CERCLA, as amended by SARA, requires that the NCP include "criteria for determining priorities among releases or threatened releases throughout the United States for the purpose of taking remedial action and, to the extent practicable, taking into account the potential urgency of such action, for the purpose of taking removal action." The discussion below may refer to "releases or threatened releases" simply as "releases," "facilities," or "sites." Removal action involves cleanup or other measures that are taken in response to emergency conditions or on a short-term or temporary basis (CERCLA section 101(23)). Remedial action tends to be long-term in nature and involves response actions that are consistent with a permanent remedy for a release (CERCLA section 101(24)). Criteria for determining priorities for possible remedial actions financed by the Trust Fund established under CERCLA are included in the Hazard Ranking System ("HRS"), which EPA promulgated as Appendix A of the NCP (47 FR 31219, July 16, 1982). On December 23, 1988 (53 FR 51962), EPA proposed revisions to the HRS in response to CERCLA section 105(c), added by SARA.
In addition to the application of the HRS, there are two other mechanisms for listing sites on the NPL. Under CERCLA section 105(a)(8)(B), each State may designate a single site as its top priority, regardless of the HRS score. According to 40 CFR 300.66(b)(4) of the NCP, the Agency also may list sites if the Agency for Toxic Substances and Disease Registry (ATSDR) recommends dissociation of individuals from the release; if EPA determines that the release poses a significant public health threat; and if EPA anticipates that it would be more cost-effective to use remedial rather than removal authorities for cleanup. The three mechanisms are described in more detail in section III of this preamble.
Based in large part on the HRS listing mechanism and pursuant to section 105(a)(8)(B) of CERCLA, as amended by SARA, EPA prepared a list of national priorities among the known releases or threatened releases of hazardous substances, pollutants, or contaminants throughout the United States. The list, which is Appendix B of the NCP, is the National Priorities List ("NPL"). CERCLA section 105(a)(8)(B) also requires that the NPL be revised at least annually. A site can undergo CERCLA-financed remedial action only after it is placed on the final NPL, as provided in the NCP at 40 CFR 300.66(c)(2) and 300.68(a).
An original NPL of 406 sites was promulgated on September 8, 1983 (48 FR 40658). The NPL has been expanded since then, most recently on October 4, 1989 (54 FR 41000/41015). The Agency also has published a number of proposed rulemakings to add sites to the NPL, most recently October 26, 1989 (54 FR 43778).
EPA may delete sites from the NPL where no further response is appropriate, as explained in the NCP at 40 CFR 300.66(c)(7). To date, the Agency has deleted 28 sites from the final NPL, most recently on September 22, 1989 (54 FR 38994) when Cecil Lindsey, Newport, Arkansas, was deleted.
This rule adds two sites and 27 Federal facility sites to the NPL, and expands the definition of 1 previously listed Federal facility site. The two non-Federal sites were proposed to the NPL pursuant to § 300.66(b)(4) of the NCP (August 16, 1989, 54 FR 33846). The comment period for that rule ended on September 15, 1989. The 27 Federal facilities were proposed to the NPL, on the basis of their HRS scores, on July 14, 1989 (54 FR 29820), as was the expansion of the definition of 1 listed Federal facility site. The comment period for that rule ended on September 12, 1989. The other Federal facility sites in the July 1989 proposed rule will be addressed in future final rules.
EPA read all comments received on the sites in today's final rule, including late comments. In past rules, EPA responded even to late comments. However, because of the need to make final decisions on all currently proposed sites prior to the date that the revised HRS takes effect, EPA was not able to respond to all late comments received for sites in this rule. (EPA had previously indicated that it may no longer be able to consider late comments (53 FR 23990, June 24, 1988 and 54 FR 19527, May 5, 1989).) In section V of this preamble, EPA addresses those comments received no later than October 11, 1989 for all sites included in this final rule. Although EPA has not responded to all late comments, it has read all late comments. The Agency has determined that none of the late comments received to date on the sites in today's final rule have brought to EPA's attention a fundamental error in the scoring of a site.
This rule results in a final NPL of 1,010 sites, 79 of them in the Federal section. In addition, 209 sites are currently in proposed status, 38 of them in the Federal section. With these changes, final and proposed sites now total 1,219.
EPA may include on the NPL sites at which there are or have been releases or threatened releases of hazardous substances, pollutants, or contaminants.
Information Available to the Public
The Headquarters and Regional public dockets for the NPL contain documents relating to the listing of these sites (see Addresses portion of this notice). Appointments should be made to view these dockets. The hours of operation for the Headquarters docket are from 9 a.m. to 4 p.m., Monday through Friday excluding Federal holidays. The hours of operation for the Regional dockets are generally from 8 a.m. to 5 p.m., Monday through Friday excluding Federal holidays.
The Headquarters docket for the Federal facility sites added by this rule include the following documents: HRS score sheets; a Documentation Record describing the information used to compute the score; a list of documents referenced in the Documentation Record; and public comments received. The Headquarters docket for the two non-Federal sites contains the same documents in addition to, for each site, a Public Health Advisory issued by ATSDR, and an EPA memorandum addressing for each site, whether the release poses a significant threat to public health and whether it would be more cost-effective to use remedial rather than removal authorities at the sites.
The Regional docket includes all information available in the Headquarters docket, as well as the reference documents, which contain the data EPA relied upon in calculating or evaluating the HRS scores for these sites.
Copies of documents contained in the Headquarters or Regional dockets may be obtained by informal written request addressed to the appropriate docket contact as specified in the Addresses section of this preamble.
The primary purpose of the NPL is stated in the legislative history of CERCLA (Report of the Committee on Environment and Public Works, Senate Report No. 96-848, 96th Cong., 2d Sess. 60 (1980)):
The priority lists serve primarily informational purposes, identifying for the States and the public those facilities and sites or other releases which appear to warrant remedial actions. Inclusion of a facility or site on the list does not in itself reflect a judgment of the activities of its owner or operator, it does not require those persons to undertake any action, nor does it assign liability to any person. Subsequent government actions in the form of remedial actions or enforcement actions will be necessary in order to do so, and these actions will be attended by all appropriate procedural safeguards.
The purpose of the NPL, therefore, is primarily to serve as an informational and management tool. The identification of a site for the NPL assists EPA in determining which sites warrant further investigation to assess the nature and extent of the public health and environmental risks associated with the site and to determine what CERCLA- financed remedial action(s), if any, may be appropriate. The NPL also serves to notify the public of sites that EPA believes warrant further investigation.
Implementation
As outlined in the NCP at 40 CFR 300.66(c)(2) and 300.68(a), Trust Fund monies can be spent for remedial actions only at sites that have been placed on the final NPL. However, EPA may take enforcement actions under CERCLA or other applicable statutes against responsible parties regardless of whether the site is on the NPL, although, as a practical matter, the focus of EPA's CERCLA enforcement actions has been and will continue to be on NPL sites. Similarly, in the case of CERCLA removal actions, EPA has the authority to act at any site, whether listed or not, that meets the criteria of the NCP at 40 CFR 300.65-300.67.
EPA's policy is to pursue cleanup of NPL sites using the appropriate response and/or enforcement actions available to the Agency, including authorities other than CERCLA. Listing a site will serve as notice to any potentially responsible party that the Agency may initiate CERCLA-financed remedial action. The Agency will decide on a site-by-site basis whether to take enforcement or other action under CERCLA or other authorities, proceed directly with CERCLA-financed response actions and seek to recover response costs after cleanup, or do both. To the extent feasible, once sites are on the NPL, EPA will determine high-priority candidates for Superfund-financed response action and/or enforcement action through both State and Federal initiatives. These determinations will take into account which approach is more likely to most expeditiously accomplish cleanup of the site while using CERCLA's limited resources as efficiently as possible.
Remedial response actions will not necessarily be funded in the same order as a site's ranking on the NPL. Most sites are listed in the order of their HRS scores, and the Agency has recognized that the information collected to develop HRS scores is not sufficient in itself to determine either the extent of contamination or the appropriate response for a particular site. EPA relies on further, more detailed studies in the remedial investigation/feasibility study (RI/FS) to address these concerns.
The RI/FS determines the nature and extent of the threat presented by the contamination (40 CFR 300.68(d)). Specifically, it evaluates the amount of contaminants in the environment, the risk to affected populations and environment, the cost to correct problems at the site, and the response actions that have been taken by potentially responsible parties or others. Decisions on the type and extent of action to be taken at these sites are made in accordance with the criteria contained in subpart F of the NCP. After conducting these additional studies, EPA may conclude that it is not desirable to initiate a CERCLA remedial action at some sites on the NPL because of more pressing needs at other sites, or because a private party cleanup is already underway pursuant to an enforcement action. Given the limited resources available in the Trust Fund, the Agency must carefully balance the relative needs for response at the numerous sites it has studied. It also is possible that EPA will conclude, after further analysis, that the site does not warrant remedial action. Federal facility sites are eligible for the NPL pursuant to the NCP at 40 CFR 300.66(c)(2). However, section 111(e)(3) of CERCLA, as amended by SARA, limits the expenditure of CERCLA monies at Federally-owned facilities. Federal facility sites also are subject to the requirements of CERCLA section 120, added by SARA.
There are three mechanisms for placing sites on the NPL. The principal mechanism is the application of the HRS. The HRS serves as an objective screening device to evaluate the relative potential of uncontrolled hazardous substances to cause human health or safety problems, or ecological or environmental damage. The HRS score represents an estimate of the relative "probability and magnitude of harm to the human population or sensitive environment from exposure to hazardous substances as a result of the contamination of ground water, surface water, or air" (47 FR 31180, July 16, 1982). Sites that score 28.50 or greater on the HRS are eligible for the NPL.
Under the second mechanism for adding sites to the NPL, each State may designate a single site as its top priority, regardless of the HRS score. This mechanism is provided by section 105(a)(8)(B) of CERCLA, as amended by SARA, which requires that, to the extent practicable, the NPL include within the 100 highest priorities, one facility designated by each State representing the greatest danger to public health, welfare, or the environment among known facilities in the State.
The third mechanism for listing, included in the NCP at 40 CFR 300.66(b)(4) (50 FR 37624-28, September 16, 1985), allows certain sites with HRS scores below 28.50 to be eligible for the NPL if all of the following occur:
The Agency for Toxic Substances and Disease Registry (ATSDR) of the U.S. Department of Health and Human Services issues a health advisory that recommends dissociation of individuals from the release.
EPA determines that the release poses a significant threat to public health.
EPA anticipates that it will be more cost-effective to use its remedial authority than to use its removal authority to respond to the release.
The third mechanism was added to the NCP by rulemaking, during which the Agency explained that the HRS may not fully reflect the risk at certain types of sites. For example, direct contact is not included in calculating the total HRS score. Thus, some sites involving direct contact to residents may pose a serious threat but not receive a sufficiently high score to qualify for the NPL. Similarly, where a small number of people are exposed to a hazardous substance, the site may fail to qualify for listing due to the low targets score.
States have the primary responsibility for identifying non-Federal sites, computing HRS scores, and submitting candidate sites to the EPA Regional Offices. EPA Regional Offices conduct a quality control review of the States candidate sites, and may assist in investigating, sampling, monitoring, and scoring sites. Regional Offices also may consider candidate sites in addition to those submitted by States.
Federal agencies have the primary responsibility under CERCLA section 120(C) for identifying Federal facility sites. In conjunction with EPA Regional offices, the Federal agencies perform investigations, sampling, monitoring, and scoring of sites. Regional offices then conduct a quality control review of the candidate sites. EPA Headquarters conducts further quality assurance audits to ensure accuracy and consistency among the various EPA and State offices participating in the scoring. The Agency then proposes the sites that meet one of the three criteria for listing (and EPA's listing policies) and solicits public comment on the proposal. Based on these comments and further review by EPA, the Agency determines final HRS scores and places those sites that still qualify on the final NPL.
This rule adds to the final NPL Radium Chemical Co. Inc., in Woodside, Queens Borough, New York City, New York, and the Forest Glen Mobile Home Subdivision in Niagara Falls, New York. Both were proposed to the NPL on August 16, 1989 (54 FR 33846) based upon § 300.66(b)(4) of the NCP (54 FR 33846). The comment period for these sites ended on September 15, 1989. EPA addresses two comments received regarding one of these sites in Section V of this preamble. A description of these two sites was included in the proposed rule (54 FR 33846, August 16, 1989).
This rule also adds 27 Federal facility sites to the NPL, and finalizes the expansion of the definition of another previously listed Federal facility site. The comment period for these sites ended on September 12, 1989. EPA addresses comments received by October 11, 1989, on these Federal facility sites in section V of this preamble. A brief discussion of the Federal facility expansion is provided below. Table 1 lists sites added to the NPL by this rule. Other Federal facility sites proposed in July 1989 will be addressed in future final rules.
Mather Air Force Base
The Mather Air Force Base (AC&W Disposal Area) located in Sacramento, California, was proposed to the NPL on October 15, 1984 (49 FR 40320) and was listed on July 22, 1987 (52 FR 27620). On July 14, 1989 (54 FR 29822), the Agency proposed to expand the site definition at this facility because it believed that additional areas of the facility were contributing to contamination of the aquifer, and possibly to off-site contamination. At this time, the site is being expanded and renamed "Mather Air Force Base."
Having proven our ability to successfully restore contaminated property at many Superfund sites, generally, EPA's preference is to address the risks posed by the contamination by using well-designed methods of cleanup which allow people to remain safely in their homes and businesses.
Table 1
National Priorities List, Federal Facility Sites, New Final (by Group), November 1989
OH
WA
ID
TN
CA
AK
SC
MA
GA
CO
FL
MA
NY
AZ
CA
UT
WA
OH
RI
CA
RI
FL
FL
CA
MN
NY
CA
Feed Materials Prod Cent (USDOE)
Bonneville Power Adm Ross (USDOE)
Idaho National Engin Lab (USDOE)
Oak Ridge Reservation (USDOE)
Treasure Island Nav Sta-Hun Pt An.
Eielson Air Force Base
Savannah River Site (USDOE)
Otis Air Nat Guard/Camp Edwards
Marine Corps Logistics Base
Air Force Plant PJKS
Pensacola Naval Air Station
Fort Devens
Brookhaven National Lab (USDOE)
Williams Air Force Base
Barstow Marine Corps Logist Base
Monticello Mill Tailings (USDOE)
Ft. Lewis Logistics Center
Mound Plant (USDOE)
Davisville Naval Constr Batt Center
Camp Pendleton Marine Corps Base
Newport Naval Educat/Training Center
Jacksonville Naval Air Station
Cecil Field Naval Air Station
March Air Force Base
Naval Industrial Reserve Ordnance
Plattsburgh Air Force Base
Travis Air Force Base
Fernald
Vancouver
Idaho Falls
Oak Ridge
San Francisco
Fairbanks N Star Bor
Aiken
Falmouth
Albany
Waterton
Pensacola
Fort Devens
Upton
Chandler
Barstow
Monticello
Tillicum
Miamisburg
North Kingstown
San Diego County
Newport
Jacksonville
Jacksonville
Riverside
Fridley
Plattsburgh
Solano County
Number of New Final Federal Facility Sites: 27. 1 Sites are placed in groups (Gr) corresponding to groups of 50 on the final NPL.
Table 2
National Priorities List, New Final Sites (by Rank), November 1989
NPL Gr 1
NPL Rank
State
Site Name
City/County
19
19
930
931
NY
NY
Forest Glen Mobile Home Subdivision
Radium Chemical Co., Inc
Niagra Falls
New York City
Number of New Final Sites: 2. 1 Sites are placed in groups (Gr) corresponding to groups of 50 on the final NPL.
The NPL, which is Appendix B of the NCP, and which appears after this preamble, is arranged by HRS scores and is presented in groups of 50 to emphasize that minor differences in scores do not necessarily represent significantly different levels of risk. The two sites listed pursuant to § 300.66(b)(4) of the NCP have HRS scores below 28.50 and are included in the last group on the NPL.
EPA received two comments in favor of listing Radium Chemical Co., Inc. These comments resulted in no change in the HRS score for the site or the Agency's determination that the criteria given at § 300.66(b)(4) of the NCP have been met. No comments were received for the Forest Glen Mobile Home Subdivision.
With respect to the 28 Federal facility sites addressed by this rule, EPA received several comments in support of the listing of Otis Air National Guard Base/Camp Edwards in Falmouth, Massachusetts, Barstow Marine Corps Logistic Base in Barstow, California, and Idaho National Engineering Laboratory in Idaho Falls, Idaho. Some of these comments also included suggestions for cleanup or enforcement strategies. While the Agency appreciates these comments, they are not germane to listing these sites, and so will not be addressed at this time. No timely comments were received regarding the other Federal facility sites in today's final rule.
The costs of cleanup that may be taken at sites are not directly attributable to listing on the NPL, as explained below. Therefore, the Agency has determined that this rulemaking is not a "major" regulation under Executive Order 12291. EPA has conducted a preliminary analysis of the economic implications of today's final rule to add two new non-Federal sites and 27 Federal facility sites to the NPL, and finds that the kinds of economic effects associated with this revision are generally similar to those identified in the regulatory impact analysis (RIA) prepared in 1982 for revisions to the NCP pursuant to section 105 of CERCLA (47 FR 31180, July 16, 1982) and the economic analysis prepared when amendments to the NCP were proposed (50 FR 5882, February 12, 1985). This rule was submitted to the Office of Management and Budget for review as required by Executive Order 12291.
Costs
EPA has determined that this rulemaking is not a "major" regulation under Executive Order 12291 because inclusion of a site on the NPL does not itself impose any costs. It does not establish that EPA necessarily will undertake remedial action, nor does it require any action by a private party or determine its liability for site response costs. Costs that arise out of site responses result from site-by-site decisions about what actions to take, not directly from the act of listing itself. Nonetheless, it is useful to consider the costs associated with responding to the sites included in this rulemaking.
The major events that follow the listing of a site on the NPL include a search for potentially responsible parties and a remedial investigation/feasibility study (RI/FS) to determine if remedial actions will be undertaken at a site. Design and construction of the selected remedial alternatives follow completion of the RI/FS, and operation and maintenance (O&M) activities may continue after construction has been completed.
EPA initially bears the costs associated with responsible party searches. Responsible parties may bear some or all of the costs of the RI/FS, remedial design and construction, and O&M, or EPA and the States may share costs.
The State cost share for site cleanup activities has been amended by section 104 of SARA. For privately-owned sites as well as for publicly-owned but not publicly-operated sites, EPA will pay for 100% of the costs of the RI/FS and remedial planning, and 90% of the costs associated with remedial action. The State will be responsible for 10% of the remedial action. For publicly-operated sites, the State will pay for at least 50% of all response costs at the site, including the RI/FS and remedial design and construction of the remedial action selected. After the remedy is implemented, costs fall into two categories:
For restoration of ground water and surface water, EPA will share in startup costs according to the criteria in the previous paragraph for 10 years or until a sufficient level of protectiveness is achieved before the end of 10 years.
For other cleanups, EPA will share for up to 1 year the cost of that portion of response needed to assure that a remedy is operational and functional. After that, the State assumes full responsibilities for O&M.
In previous NPL rulemakings, the Agency estimated the costs associated with these activities (RI/FS, remedial design, remedial action, and O&M) on an average total cost per site basis. EPA will continue with this approach, using the most recent cost estimates available (1988). These estimates are presented below. However, there is wide variation in costs for individual sites, depending on the amount, type, and extent of contamination. Additionally, EPA is unable to predict what portions of the total costs responsible parties will bear since the distribution of costs depends on the extent of voluntary and negotiated response and the success of any cost-recovery actions.
Cost category
Average total cost per site 1
RI/FS
1,100,000
Remedial Design
750,000
Remedial Action
13,500,000 2
Net present value of O&M 3
3,770,000 2
Source: Office of Program Management, Office of Superfund Remediation Technology Innovation, U.S. EPA. 1 1988 U.S. Dollars.
2 Includes State cost-share.
3 Assumes cost of O&M over 30 years, $400,000 for the first year and 10% discount rate.
Costs to States associated with today's rule arise from the required State cost-share of:
10% of remedial actions and 10% of first-year O&M costs at privately-owned sites and sites that are publicly-owned but not publicly operated; and
at least 50% of the remedial planning (RI/FS and remedial design), remedial action, and first-year O&M costs at publicly-operated sites.
The State will assume the costs generated by O&M, following EPA's period of participation. The Radium Chemical Company Site and the Forest Glen Mobile Home Subdivision Site are both privately-owned. Therefore, using the budget projections presented above, State costs arising from Federal remedial planning and action, excluding O&M costs, can be expected to reach approximately $2.5 million. State O&M costs cannot be accurately determined because EPA, as noted above, will share O&M costs for up to 10 years for restoration of ground water and surface water, and it is not known if these sites will require this treatment and for how long. However, based on past experience, EPA believes a reasonable estimate is that it will share startup costs for up to 10 years at 25% of sites.
Placing a hazardous waste site on the NPL does not itself cause firms responsible for the site to bear cleanup costs. Nonetheless, a listing may induce firms to clean up the sites voluntarily, or it may act as a potential trigger for subsequent enforcement or cost recovery actions. Such actions may impose costs on firms, but the decision to take such actions are discretionary and made solely on a case-by-case basis. Consequently, precise estimates of these effects cannot be made. EPA does not believe that every site will be cleaned up by a responsible party. EPA cannot project at this time which firms or industry sectors will bear specific portions of the response costs, but the Agency considers: the volume and nature of the waste at the site; the strength of the evidence linking the wastes at the site to the parties; the parties' ability to pay; and other factors when deciding whether and how to proceed against the parties.
Economy-wide effects of this amendment to the NCP are aggregations of effects on firms and State and local governments. Although effects could be felt by some individual firms and States, the total impact of this final rule on output, prices, and employment is expected to be negligible at the national level, as was the case in the 1982 RIA.
Benefits
The benefits associated with adding two sites and 27 Federal facility sites to the NPL are increased health and environmental protection as a result of increased public awareness of potential hazards. In addition to the potential for more Federally-financed remedial actions, expansion of the NPL can accelerate privately-financed, voluntary cleanup efforts. Identifying sites as national priority targets also may give States increased support for funding responses at particular sites.
As a result of additional CERCLA remedies, there will be lower human exposure to high-risk chemicals, and higher-quality surface water, ground water, soil, and air. These benefits are expected to be significant, although difficult to estimate in advance of completing the RI/FS at these sites.
The Regulatory Flexibility Act of 1980 requires EPA to review the impacts of this action on small entities, or certify that the action will not have a significant impact on a substantial number of small entities. By small entities, the Act refers to small businesses, small government jurisdictions, and nonprofit organizations.
While these modifications to the NPL are considered revisions to the NCP, they are not typical regulatory changes since the revisions do not automatically impose costs. Placing sites on the NPL does not in itself require any action by any private party, nor does it determine the liability of any party for the cost of cleanup at the site. Further, no identifiable groups are affected as a whole. As a consequence, it is hard to predict impacts on any group. A site's inclusion on the NPL could increase the likelihood that adverse impacts to responsible parties (in the form of cleanup costs) will occur, but EPA cannot identify the potentially affected business at this time nor estimate the number of small businesses that might be affected.
The Agency does expect that certain industries and firms within industries that have caused a proportionately high percentage of waste site problems could be significantly affected by CERCLA actions. However, EPA does not expect the impacts from the listing of these sites to have a significant economic impact on a substantial number of small businesses.
In any case, economic impacts would only occur through enforcement and cost-recovery actions, which are taken at EPA's discretion on a site-by-site basis. EPA considers many factors when determining what enforcement actions to take, including not only the firm's contribution to the problem, but also the firm's ability to pay.
The impacts (from cost recovery) on small governments and nonprofit organizations will be determined on similar case-by-case basis.
List of Subjects in 40 CFR Part 300
Air pollution control, Chemicals, Hazardous materials, Intergovernmental relations, Natural resources, Oil pollution, Reporting and recordkeeping requirements, Superfund, Waste treatment and disposal, Water pollution control, Water supply.
Dated: November 14, 1989.
M. A. Gade, Acting Assistant Administrator, Office of Solid Waste and Emergency Response.
PART 300 - [AMENDED]
40 CFR part 300 is amended as follows:
1. The authority citation for part 300 continues to read as follows:
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The Government Performance and Results Act (GPRA) is an EPA reform initiative that was passed in 1993 to hold federal agencies accountable for using resources wisely and achieving program results. GPRA requires agencies to develop plans for what they intend to accomplish, measure how well they are doing, make appropriate decisions based on the information they have gathered, and communicate information about their performance to Congress and to the public. EPA is required to report on the following Superfund measures under GPRA:
The chemical substances (i.e., hazardous substances, pollutants, or contaminants) listed below were identified as contaminants of concern (COC) for the site. COCs are the chemical substances found at the site that the EPA has determined pose an unacceptable risk to human health or the environment. These are the substances that are addressed by cleanup actions at the site. Identifying COCs is a process where the EPA identifies people and ecological resources that could be exposed to contamination found at the site, determines the amount and type of contaminants present, and identifies the possible negative human health or ecological effects that could result from contact with the contaminants.
The primary purpose of the NPL is stated in the legislative history of CERCLA (Report of the Committee on Environment and Public Works, Senate Report No. 96-848, 96th Cong., 2d Sess. 60 (1980)):
The priority lists serve primarily informational purposes, identifying for the States and the public those facilities and sites or other releases which appear to warrant remedial actions. Inclusion of a facility or site on the list does not in itself reflect a judgment of the activities of its owner or operator, it does not require those persons to undertake any action, nor does it assign liability to any person. Subsequent government actions in the form of remedial actions or enforcement actions will be necessary in order to do so, and these actions will be attended by all appropriate procedural safeguards.
Implementation
As outlined in the NCP at 40 CFR 300.66(c)(2) and 300.68(a), Trust Fund monies can be spent for remedial actions only at sites that have been placed on the final NPL. However, EPA may take enforcement actions under CERCLA or other applicable statutes against responsible parties regardless of whether the site is on the NPL, although, as a practical matter, the focus of EPA's CERCLA enforcement actions has been and will continue to be on NPL sites. Similarly, in the case of CERCLA removal actions, EPA has the authority to act at any site, whether listed or not, that meets the criteria of the NCP at 40 CFR 300.65-300.67.
NPL listing is not a general requirement under the NCP. We see the NPL as a limitation on remedial, or long-term, actions--as opposed to removal, or short-term, actions--particularly federally funded remedial actions. The provisions requiring the establishment of NPL criteria and listing appear to limit their own application to remedial actions. Section 9605(8)(A) requires EPA to include in the NCP "criteria for determining priorities among releases or threatened releases ... for the purpose of taking remedial action and, to the extent practicable taking into account the potential urgency of such action, for the purpose of taking removal action." And section 9605(8)(B), which requires EPA to draw up the NPL, refers to "priorities for remedial action." Accord 126 Cong.Rec. 30,933 (statement of Sen. Randolph), reprinted in 1 CERCLA Legislative History, supra, at 689; 40 C.F.R. Sec. 300.68(a) (1984). And section 9604, which authorizes and governs federal response actions, reveals the special role of the NPL for federally sponsored remedial actions. Section 9604(c)(3) states that federal remedial actions can be taken only if "the State in which the release occurs first enters into a contract or cooperative agreement" with the federal government, thus setting up a joint federal-state cost-sharing and cleanup effort. At the same time, section 9604(d)(1) states that such joint efforts must be taken "in accordance with criteria and priorities established pursuant to section 9605(8)"--the NPL provision. If the NPL criteria and listing were a general requirement for action "consistent with" the NCP, this language would be surplusage. See supra text accompanying note 18.
34
CERCLA's legislative history also supports our conclusion. Congress did not intend listing on the NPL to be a requisite to all response actions. Neither the earlier House nor Senate version included the NPL in the NCP, see S.1480, 96th Cong., 2d Sess. Secs. 3(c)(5), 6(a)(2)(B), 126 Cong.Rec. 30,908, 30,913, reprinted in 1 CERCLA Legislative History, supra, at 482-84, 529-30; H.R.7020, 96th Cong., 2d Sess. Secs. 3032(b), 3042, 126 Cong.Rec. 26,775, 26,777, reprinted in 2 CERCLA Legislative History, supra, at 404, 420-23, although the Senate version limited joint federal-state responses to sites on the NPL, see S.1480, 96th Cong., 2d Sess. Sec. 6(a)(2)(B), 126 Cong.Rec. 30,913, reprinted in 1 CERCLA Legislative History, supra, at 529-30; see also Senate Report, supra, at 60 ("To receive reimbursement from the Fund, [joint federal-state] response actions may be undertaken only at facilities or sites which are in accordance with the national priority list...."), reprinted in 1 CERCLA Legislative History, supra, at 367. It is also instructive to note that the Senate Report described the NPL as serving "primarily informational purposes, identifying for the States and the public those facilities and sites or other releases which appear to warrant remedial actions." Id. (emphasis added). In reviewing the changes made by the compromise, no one mentioned that NPL listing would be a requirement for removal action or even a general requirement under the NCP.
35
Moreover, limiting the scope of NPL listing as a requirement for response action is consistent with the purpose of CERCLA. The NPL is a relatively short list when compared with the huge number of hazardous waste facilities Congress sought to clean up. See 126 Cong.Rec. 30,931 (statement of Sen. Randolph), reprinted in 1 CERCLA Legislative History, supra, at 683-84; id. at 31,964 (statement of Rep. Florio), reprinted in 1 CERCLA Legislative History, supra, at 776. And it makes sense for the federal government to limit only those long-term--remedial--efforts that are federally funded. We hold that Congress intended that, while federally funded remedial efforts be focused solely on those sites on the NPL, states have more flexibility when acting on their own. See Pinole Point Properties, Inc. v. Bethlehem Steel Corp., 596 F.Supp. 283, 290 (N.D.Cal.1984).
EPA is authorized to take remedial or removal actions only if they are consistent with
the NCP, Pub. L. No. 96-510, 5 104(a), 94 Stat. 2767, 2774, to be codified at 42 U.S.C.
5 9604(a). It can secure reimbursement of expenditures for remedial actions only if they are
consistent with the NCP under 5 107(a) of Superfund. EPA's enforcement of Superfund is impliedly
to be consistent with the NCP. See note 4, supra.
"Immediate removal, planned removal, and remedial actions are authorized for descending
levels of imminence of hazard. Since there are differing restrictions on EPA's authority to
act under each of these various levels, wrongful classification of imminence could result in
unauthorized government action. See Pub. L. No. 96-510, 5 104,94 Stat. 2767,2774-79, to be
codified at 42 U.S.C. 5 9604, and 40 C.F.R. 5G300.64 to .68,47 Fed. Reg. 31214-17 (July 16,
1982). "See note 15, supra and 40 C.F.R. 5 300.68(g)-(j), 47 Fed. Reg. 31217 (July 16, 1982).See 40 C.F.R. 4 300.69, 48 Fed. Reg. 31217-18 (July 16, 1982).
1°78 F.R.D. 214 (E.D. Wisc. 1978).
"See Portland Cement Ass'n v. Ruckelshaus, 486 F.2d 375, 369 (D.C. Cir. 1973). "See Amoco Oil Co. v. EPA, 502 F.2d 722, 743 (D.C. Cir. 1974)."United States v. Pennsylvania Engineering Chemical Corp., 411 U.S. 655 (1973), and
United States v. Martin, 517 F. Supp. 21 1 (D.S.C. 1981).
I4United States v. Cargill, Inc., 508 F. Supp. 734 (D. Del. 1981). "See Dept . of Justice, Principles of Federal Prosecution, pp. 1 1-12 (1980).
I6Menzel v. County Utilities Corp., 501 F. Supp. 354 (E.D. Va. 1979).
"United States v. ITT Rayonier, Inc., 627 F.2d 997 (9th Cir. 1980). "See note 24, supra.
Federal Facilities Streamlined Oversight Directive
SUBJECT: Federal Facilities Streamlined Oversight Directive FROM: Jim Woolford, Director
Federal Facilities Restoration and Reuse Office, OSWER
Craig Hooks, Acting Director
Federal Facilities Enforcement Office, OECA TO: Director, Office of Site Remediation and Restoration, EPA - New England
Director, Emergency and Remedial Response Division, Region II
Director, Hazardous Waste Management Division, Regions III, IX
Director, Waste Management Division, Region IV
Director, Superfund Division, Regions V, VI, VII
Assistant Regional Administrator, Office of Ecosystems Protection and Remediation, Region VIII
Director, Environmental Cleanup Office, Region X
Regional Counsels, Regions I - X
Purpose
On October 2, 1995, Administrator Browner announced several Superfund Reforms including one to reduce oversight activities at sites where there are cooperative private parties that are performing quality work. Consistent with this Reform, for federal facilities on the Superfund National Priorities List (NPL), we are pursuing a similar initiative to streamline our oversight activities.
EPA is responsible for overseeing the Superfund remedial activities at NPL federal facility sites. EPA's oversight is shaped by a variety of factors including statutory requirements, regulations, guidance, Federal Facility Agreements (FFA), Site Management Plans (SMP), and common practice. EPA's oversight activities of federal facilities include ensuring that, generally,work conducted by federal facilities is equivalent to work that EPA would conduct if that site were EPA-lead.
This Directive focuses on streamlining the regulatory oversight processes at federal facilities in a systematic, planned manner based on site-specific factors and general streamlining techniques. The intent of streamlining the oversight is to improve the efficiency and overall effectiveness of the oversight for the regulators and the federal facilities, while ensuring protection of human health and the environment. Additionally, a streamlined process may facilitate more effective community participation and involvement in the cleanup process by making the process more accessible to the public.
EPA Regions are already implementing components of streamlined oversight at several federal facilities. As such, the concepts described below are not new. What is required is a more systematic approach to ensure that EPA, federal agencies, states, and citizens impacted by contamination at federal facilities and associated activities secure benefits of a streamlined oversight approach. It is important to realize that the streamlined approach may not be applicable at each site or facility, but each facility should be evaluated for opportunities to streamline the oversight process.
Background
There are currently estimated to be more than 61,000 contaminated sites at over 2,000 federal facilities in the United States. As of June 1, 1996, there are 160 proposed and final federal facilities on the NPL. The Department of Defense (DoD) currently is responsible for about 82% of the federal facilities on the NPL. The Department of Energy (DOE) has 11%, but far more releases/sites on each of its facilities than does the military or other federal agencies (e.g., DOI, USDA, NASA). According to EPA's CERCLIS information system, there are currently over 450 ongoing Remedial Investigation/ Feasibility Studies (RI/FSs), over 100 Remedial Designs (RDs) and over 100 ongoing Remedial Actions (RAs). In parallel, there are also several time-critical and non time-critical removal actions ongoing. Regional programs may or may not be overseeing these removal actions.
Relative to federal facilities, the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, (CERCLA) as amended by the Superfund Amendments and Reauthorization Act of 1986 (SARA), provides the framework for Superfund federal facilities cleanup. Section 120(a) requires that federal facilities comply with CERCLA requirements to the same extent as private facilities. Section 120(d) sets forth requirements for facility site assessment, evaluation and NPL listing. Section 120(e) establishes remedial cleanup and cleanup agreement requirements.
Section 120(e) of CERCLA requires the federal facility to enter into a negotiated Interagency Agreement (IAG) with EPA within 180 days of EPA's review of the RI/FS. (As a matter of policy and where resources permit, EPA tries to negotiate the IAG after final listing on the NPL. In this context, the IAG is also known as a Federal Facility Agreement, and will be referred to as FFA in the text that follows.) Under CERCLA Section 120 and the FFA, EPA oversees all of the phases of remedial activity (RI/FS, RD, RA, operation and maintenance) to be undertaken at a federal facility NPL site. States are usually signatories to the FFA. The FFA provides the technical, legal, and management framework to conduct the federal facility activities. The FFA is an enforceable document and contains, among other things, a description of the remedy selection alternatives, procedures for submission and review of documents, schedules of cleanup activities, and provisions for dispute resolution.
In addition to EPA, the states and Indian tribes, as regulators, also may have an oversight role. The particulars of these roles are established in the FFA at each facility.
In 1988, after agreement from DoD and DOE, EPA issued model provisions for FFAs for DoD and DOE (Attachment) to guide the oversight relationship between the federal facilities and EPA. The model FFA identifies primary documents and secondary documents. In addition, a specific consultation process is outlined both with regard to EPA comments and federal facility response to comments on primary and secondary documents, as well as other aspects of the cleanup process.
Oversight activities traditionally involve the production of a document by a federal agency or their contractor, delivery of the document, EPA review and written comments, revision of the document, another round of review and comment, ultimately ending with Agency concurrence on the document. At times there are multiple rounds of comments and revisions to these documents. Specific time frames for review, comment and response to comment are usually laid out in the FFA. Analysis has revealed that more than half of the time spent on the RI/FS process may be involved in this comment and review process.
EPA's oversight at federal facilities consists of ensuring that the federal facilities comply with CERCLA, the National Contingency Plan (NCP), the signed FFA and other agreements; and other statutes, as appropriate (e.g., RCRA); assisting in the determination of cleanup remedies or potentially selecting the remedies; concurring that there is consistency with all relevant guidances and policies determined by EPA to be appropriate for the facility; and determining that decisions protect human health and the environment and are technically sound.
Additional EPA activities include promoting community involvement through the community advisory boards, providing Technical Assistance Grants (TAGs), providing technical advice and assistance (e.g., assisting in identifying and implementing the sampling strategies and analytical requirements), identifying cleanup actions that are not justified based on risk, reviewing design documents and federal agency pollution abatement plans, and resolving disputes regarding noncompliance.
There are several EPA and other agency initiatives that are designed to improve (i.e., modify, streamline, etc.) how cleanup and oversight of cleanup is performed at NPL sites. This Directive incorporates aspects of several of these initiatives, especially Superfund Accelerated Cleanup Model (SACM), Data Quality Objectives (DQO) Process, Reduced Federal Oversight at Superfund Sites with Cooperative and Capable Parties, Variable Oversight (a DoD pilot), Streamlined Approach for Environmental Restoration (SAFER, a DOE pilot). All of these initiatives address the interaction between regulators and federal facilities, with partnership and/or cooperation emphasized in the Reduced Oversight, Variable Oversight, and SAFER models. The SACM, DQO Approach, Variable Oversight, and SAFER initiatives in particular stress upfront planning and scoping to optimize remediation and data collection. This Directive builds on the Variable Oversight model with the emphasis on partnership, upfront scoping and planning, and streamlined document review but also includes principles from other initiatives.
Proposal
This guidance applies to all federal facilities on the NPL. It requires that EPA Regions evaluate opportunities for streamlining oversight of the remedial process for NPL federal facility sites and discusses key areas for process implementation. Where all parties agree on streamlining activities that will affect requirements and/or milestones in an existing FFA, changes to the FFA and/or the Site Management Plan (SMP) should be implemented, as appropriate.
Streamlining regulatory oversight will tailor requirements in a systematic, planned manner based on site-specific factors and streamlining approaches. These site-specific factors include the relationship among the federal facility, the regulators, and community; the complexity of the site cleanup; the current status of the cleanup; and the rate of progress that has been made. The streamlined process should improve the efficiency of both the oversight and the site cleanup actions, enhance public involvement by highlighting issues of greatest interest to the public, and ensure that these issues are not obscured by excessive paper and discussions of methodologies.
Problems with Current Process
For CERCLA cleanup activities, a framework of extensive government regulation and guidance (federal and/or state) outlines the cleanup process and the associated requirements. Although the regulations and guidance provide flexibility, it is not clear that full advantage is taken of the flexibility. The traditional oversight system tends to place heavy emphasis on end-of-process activities such as inspection, review, and comment of documents and deliverables, and not as much on early planning and collaborating. Many documents repeat the same information (e.g., site descriptions) that regulators will comment on time and time again. Significant time and money may be spent on generating more data and documents than necessary.
In addition, the large number and size of documents inhibits public participation as the general non-technical public is overwhelmed by the documents. One outcome of a streamlined process could be more effective public participation in the federal facility cleanup process. Many members of restoration advisory boards and site-specific advisory boards have indicated that streamlined documents are very desirable and will facilitate their participation.
Identifying Sites for Streamlining Oversight
This guidance applies to all NPL federal facility sites requiring EPA oversight. Effective immediately, the Regions should use the criteria below to identify those facilities or, as appropriate, sites on the facility, where the oversight can be streamlined without reducing the level of protection at the site. This evaluation should be done at every site where the federal facility is performing the RI/FS, the RD/RA, or the engineering evaluation/cost analysis (EE/CA) and response action for non-time critical removals. If a facility (or site) does not currently meet the criteria, the facility may be reconsidered at an appropriate later date for application of streamlined oversight.
The regulated federal agencies may propose possible sites as candidates for streamlined oversight. The Regions should work with the federal agencies to identify appropriate sites.
Federal facility has agreed to reasonable time frames for completing site work (including deliverables), and has historically completed such work on a timely basis.
Federal facility has been and remains substantially in compliance with the terms of the FFA, other agreements, and environmental laws and regulations.
Federal facility follows through on commitments made to EPA.
Technical Capability (Based on Site Complexity)
Federal facility consistently produces technically sound documents.
The following are some additional criteria that should be considered when determining the appropriate oversight at a federal facility site.
Site-Based Criteria
The community has reason to believe additional oversight is necessary. In response, EPA may increase site monitoring. At a minimum, EPA should discuss with the federal facility and the affected community at the site the Agency's plan concerning the site.
At sites where the remedy involves a complex technical model, EPA may decide to carefully monitor all critical site work.
The severity of risk to human health or environment posed by the site will be considered in determining applicable oversight.
Implementation
EPA believes that at sites that may be amenable to streamlining oversight after applying the criteria above, Regions should work with the federal facilities, states, local governments, and communities, as appropriate, to develop an effective partnership in implementing this reform. The FFA and/or the SMP may also need to be revised to implement this reform but opportunities should be examined that will not require formal renegotiation. Streamlining the oversight activities should be implemented as soon as possible. This streamlining of monitoring activities should lead to a reduction in oversight costs and also decrease the time needed to complete that phase of the response action.
Opportunities for Streamlining Oversight
The following is a list of some activities that can be instituted, modified or streamlined, as appropriate, to facilitate streamlining the oversight and cleanup process. They are dependent on each other in that success in one area will increase the chances for success in the other areas. In particular, an effective working partnership lays the groundwork and fosters cooperation that leads to progress in the other areas. The activities can be separated into four broad categories although there is overlap between the categories. Activities that may be implemented include, but are not limited to:
Partnering
Developing partnerships among federal facility, EPA, state, tribes, and stakeholders
Early and Substantial Regulator Involvement
Engaging in installation-wide joint planning efforts
Developing common cleanup "vision" with goals and objectives
Participating in federal facility budget formulation and execution process
Establishing cleanup standards on the basis of existing and reasonably anticipated future land use as soon as possible in the remedial process
Improving scoping and planning
Optimizing the data review process
Utilizing computerized file/document transfer
Defining Each Regulator's Role
Clearly defining role of EPA and state in terms of oversight responsibilities including establishing a lead regulator, wherever possible
Eliminating or otherwise mitigating RCRA/CERCLA overlap
Developing appropriate side agreements to facilitate environmental restoration process (e.g., memorandum of understanding (MOU) with EPA Region, state, and the Defense Nuclear Facility Safety Board (DNFSB))
Streamlining Documentation and Review
Using standard operating procedures (SOPs) and standard document formats
Reducing production of documents by increasing the use of in-person meetings, briefings, and other communication methods to identify issues early on and resolve identified issues
Eliminating interim deliverables or milestones, where applicable, while continuing accountability to produce an acceptable end product
The FFA/SMP should incorporate the above activities to the extent practical depending on the site. These elements are not necessarily enforceable portions of the FFA.
Some of these activities are described below.
Partnership
One key to streamlining oversight is creating and then maintaining a framework for partnership between EPA, the federal facility, state, tribes and the community. The history of federal facilities cleanup has been one marked with considerable distrust between the communities, the regulators, and the federal facility. One outcome of this distrust was a need for extensive regulator and community oversight of cleanup activities. At some facilities, the atmosphere of distrust has changed or is being changed. At other facilities, much needs to be done and, in some cases, this section may not be appropriate for these facilities.
Creating and maintaining an effective working relationship often requires extensive interaction at both a site (RPM) level and at a Regional (supervisory) level. Additionally, training to support effective partnering is often required. Where this approach has been successfully implemented, the result has been to dramatically improve the cleanup process. Communication is key among partners. In addition to planned meetings, the use of informal and technology-assisted communication (e.g., telephone, e-mail, fax) is encouraged.
One goal of the partnership is to establish a long-term working relationship in which the parties can commit to up-front agreements designed to produce savings in terms of time and resources needed for cleanup. The participants work together to define the site problems and develop potential options for addressing the problems. The direction of investigation and cleanup work by a working partnership allows parties to focus on key issues that are critical and provides a means to resolve substantive issues prior to action. The partnership approach recognizes that there may be significant initial differences of opinion concerning decisions affecting site cleanup. The partnership should acknowledge that each individual is responsible for representing their agency. The ground rules require that the team agree on the goal, such as site remediation, and that consensus must be reached to achieve the agreed upon goal. The partnership promotes the building of trust and the confidence that important issues are addressed and resolved at appropriate times.
An effective partnership requires working relationship at all levels of the decision chain and a clear understanding of individual roles, scopes of authority, and responsibilities within each organization. Participants in partnerships must: communicate the workings of their organization, the decision-making process within their organization, and the boundaries of their authority; understand and respect each other's expectations and constraints; be empowered to make decisions within the scope of their authority, bring others to the table when necessary, and be supported by their organization; and be sufficiently trained and experienced to exercise professional judgment as appropriate to the needs of the site.
Early and Substantial Regulator Involvement
Develop Common "Vision" with Goals, Objectives and Priorities
Even without "partnering", it is generally productive to develop a common vision for the near-term to long-term future for the facility and related cleanup objectives, activities, and priorities. The vision may include concrete goals and objectives that direct the remediation efforts. The vision should be integral to the scoping and planning efforts for the site. It should be verified on a recurring basis that the scoping and planning and the progress at the site are consistent with the vision.
As part of developing this vision, EPA and other stakeholders need to continue to participate in the application and evaluation of the outcomes of DoD's and DOE's "relative risk" evaluation models. The results of these models are being used as the point of departure for establishing site cleanup priorities but other factors must be considered. EPA participation is critical to ensuring that our mission to protect human health and the environment is part of the prioritization process.
Budget Formulation and Execution Process
Consistent with the consensus principles and recommendations of the April 1996 Final Report of the Federal Facilities Environmental Restoration Dialogue Committee, EPA Regions should be actively engaged in the budget formulation and execution process surrounding DoD and DOE site cleanup activities. Such involvement facilitates EPA's understanding of how and why funding decisions are made and affords EPA the opportunity to influence these decisions. EPA's participation on the budget could include an annual review of federal facility cleanup progress on a basewide level in relation to the current and planned budget, in sufficient time to be able to influence the process and decisions. In addition, meetings/phone contacts should include a frequent (i.e., monthly) discussion on the current status of site budget issues. Discussions could include what projects have been put out to bid, what projects have been awarded, the potential for end-of-year funding and forward funding projects, and the results from prioritization dialogues.
Improve Project Scoping and Planning
The purpose of project scoping and planning is to reach cleanup decisions and actions in the most efficient manner. By effectively tying data collection to a specific decision, scoping and planning activities streamlines the oversight process. The time and expense of planning, producing, and reviewing excess data and additional superfluous material, (e.g., site descriptions repeated in each deliverable) can be minimized through efficient project definition.
The streamlined process should focus on upfront scoping and identification of what is actually needed at a particular site to make a particular decision. Various alternatives to focus project planning are commonly used, such as the Data Quality Objectives (DQO) process, the Streamlined Approach for Environmental Restoration (SAFER), Expedited Site Characterization, the Observational Approach, Superfund Accelerated Cleanup Model (SACM), etc. The DQO and SAFER processes emphasize teamwork and consensus building whereas the Expedited Site Characterization and the Observational Approach do not necessarily stress communication. However, all the various approaches develop answers to the same basic questions and can contribute to streamlining activities:
What questions do you want to answer?
What data are necessary to answer the question?
What degree of uncertainty is acceptable?
What is the strategy to gather information?
Focusing on the definition of the problem and the decision that will be made is critical to support an environmental action and to frame the necessary degree and specific mechanism of the oversight role.
Data collection is typically planned during scoping and conducted as part of the RI. Defining the review requirements (i.e., parameters, limits, quality assurance, etc.) upfront and focusing on data elements that will affect decisions (e.g., contaminants of concern at or above action limits) saves time and resources for all parties. The review process should concentrate on the data that will be used in decision-making at the site. For example, exhaustive review of detection limit level contaminants two to three orders of magnitude below or above an action level uses valuable resources but does not add value or contribute to the decision-making process. In this case, the relatively high uncertainty will not change the decision. However, questionable presence or high uncertainty at an action level should trigger rigorous evaluation.
As part of the planning process, the participants need to consider alternative investigative approaches, such as the use of on-site analytical measurements with or without field labs, and innovative sampling methods and well installation techniques. Additionally, the RPMs need to participate and be available in field decisions to accommodate changes in the sampling plan.
The last step of the scoping phase is to ensure that all participants understand and reach a consensus on the planning process. Consensus building may be a time-consuming and taxing process. However, the investment upfront at the scoping stage of a project will generally provide significant savings later in terms of shorter review and revision cycles, and a final product that addresses participants' concerns.
Optimizing the Data Review Process
Current interagency efforts to develop required data sets and an electronic transmission standard offer significant opportunities to improve quality and efficiency of the review processes. Standardization allows efficient sharing of site information and automation of the review process through the use of software developed by EPA for Superfund analytical data. This data review software has been adapted by DOE (and potentially by DoD) to meet broader program needs (e.g., radionuclides and RCRA compliance).
Defining Each Regulator's Role
The role of EPA and state in terms of oversight responsibilities should be clearly defined, including establishing a lead regulator, wherever possible. Having a lead regulator conserves regulator resources, and minimizes duplicative requirements and conflict between the regulators. However, EPA is still responsible for ensuring that the remedy is protective of human health and the environment and that, ultimately, the site can be deleted from the NPL. Therefore, effective communication between regulators is especially important in implementing the lead regulator concept.
The EPA RPM should assume the responsibility to serve as liaison between RCRA and CERCLA and assure that CERCLA actions will satisfy RCRA concerns and that fundamental RCRA requirements are integrated into the FFA process and schedules and visa versa. In non-authorized states, the RPM can be granted RCRA corrective action and decision-making authority.
Streamlining Documentation and Review
Standard Operating Procedures and Document Formats
In addition to reaching up-front agreements, developing Standard Operating Procedures once that will cover all cleanup activities for the federal facility will streamline the oversight process. These may include: a Health and Safety Plan; Quality Assurance Plan; Field Sampling and Analysis Plan; Investigation Derived Waste Plan; ARARs list; and a stand alone background document describing the environmental setting of the facility, as well as the history. In addition, for the sake of consistency, document formats can be developed for: RI/FS work plans and reports; Risk Assessment Reports; RD/RA work plans and reports; and RODs. These will ensure that all the required components of each document will be included the first time around.
Eliminating Interim Deliverables or Milestones
A large number of documents are typically generated on a site-specific (or operable unit specific) basis to describe and support site-specific decisions. Regions should evaluate opportunities to eliminate interim deliverables and to generate more focused documents that answer specific questions. In some cases, drafts may be eliminated, or an entire deliverable may be eliminated, depending on the site-specific project needs. Attached is the Model FFA list of primary and secondary documents. There may be situations where some of these deliverables can be eliminated, such as when a presumptive remedy is being utilized.
Streamlined oversight can enhance cooperation among the stakeholders; expedite the cleanup of federal facilities; and avoid the unnecessarily high cost of the current oversight process with no decrease in protection to human health and the environment.
The major statutes and regulations that implement cleanup requirements at NPL sites establish the involvement of numerous institutions and individuals in that process. The roles of EPA, the states, the tribes, the federal facility, and community groups and other external stakeholders are carefully prescribed. Guidance and regulations establish the framework in which cleanup is to be carried out. Nonetheless, there is a wide range of flexibility in the details of the cleanup action and how individual responsibilities are carried out. It is up to all the participants in the federal facility remediation process to use the flexibility to conserve resources while ensuring adequate environmental protection.
NOTICE: This Directive is primarily for the use of U.S. EPA personnel. EPA reserves the right to change this Directive at any time, without prior notice, or to act at variance to this Directive. This Directive does not create any rights, duties, or obligations, implied or otherwise, in any third parties.
Attachment
cc: Elliott Laws
Tim Fields
Steve Luftig
Barry Breen
Federal Facilities Leadership Council, Regions I-X
Attachment: Model FFA List of Primary and Secondary Documents
(This list may be modified based on individual partnership needs.)
Primary Documents
RI/FS Scope of Work
RI/FS Work Plan - including Sampling and Analysis Plan and QAPP
Risk Assessment
RI Report
Initial Screening of Alternative
FS Report
Proposed Plan
Record of Decision
Remedial Design
Remedial Action Work Plan
Secondary Documents
Initial Remedial Action/Data Quality Objectives
Site Characterization Summary
Detailed Analysis of Alternatives
Post-screening Investigation Work Plans
Treatability Studies
Sampling and Data Results
Generally, secondary documents are seen as "feeder" documents and are not subject to dispute resolution as are primary documents.
How does CERCLA affect the Federal
Real Property Disposal process?
CERCLA §120(h) imposes several requirements on all
transfers of federal real property "owned by the
United States" to non-federal entities.
With regard to the Federal Property Real Disposal
Process, CERCLA requires the Federal Government to:
• give notice of hazardous substance activity to the
grantee,
• include a covenant in the deed that "all remedial
action necessary to protect human health and the
environment with respect to any such substance
remaining on the property has been taken before
the date of such transfer,"
• include a deed covenant that the United States
will return and perform any additional response
action that may be required in the future, and
• retain a perpetual right of access necessary to
do such additional response actions.
As noted above, these requirements only apply to fee
conveyances of real property out of federal ownership.
They do not apply to interagency federal real
property transfers or to leases, licenses, or easements
granted for the use of federal land. CERCLA
§120(h) also does not apply to personal property
disposals.
What CERCLA-related information must
landholding agencies provide GSA with
the Report of Excess?
GSA requires that landholding agencies complete
GSA’s "Hazardous Substance Activity Certification,"
which is located in GSA’s Excess Real Property
Checklist. Completion of this form enables GSA
either to include the required notice and covenants
in the deed for a "Timely Transfer" or to work with
the landholding agency to pursue one of CERCLA’s
other transfer mechanisms, described at the end
of this document. The Standard Form 118 in GSA’s
Excess Real Property Checklist can be found on the
Resource Center Web site at:
http://rc.gsa.gov/ResourceCenter/
There are two components of the Hazardous
Substance Activity Certification:
1. The landholding agency must provide notice of
any hazardous substance activity, based upon a
complete search of agency files.
The landholding agency must assert either that
(a) there is no evidence of hazardous substance
activity, or (b) there is evidence of hazardous
substance activity that occurred on the property.
If (b), the landholding agency has a "due diligence"
obligation to provide detailed, accurate
information on all "reportable quantities" of hazardous
substances stored, released, or disposed
of on property that it reports to GSA for disposal.
The specific substances that must be reported
under CERCLA and their reporting limits are
described in 40 CFR §302.4 and 40 CFR §373.
2. If the landholding agency discloses that (b) hazardous
substance activity took place on the
property, then it must assert whether or not all
remedial action necessary to protect human
health and the environment has been taken
with respect to those hazardous substances.
What does "all remedial action
necessary" mean?
The term "all remedial action necessary to protect
human health and the environment" is not defined
in CERCLA. However, it is reasonable to interpret
these words to include "removal actions" and thus,
all forms of "response action" taken to address potential
releases of hazardous substances into the
environment. GSA thus includes the CERLA §120(h)
(3) covenant even if no remedial action was ever
necessary. For example, the deed covenant is included
if a CERCLA preliminary assessment or site
inspection has verified that no discernible release
has occurred from a past activity or when it has
been determined that any onsite contamination is
below the "action levels" required for remediation.
EPA has developed specific cleanup standards for
individual contaminants. These standards can
vary depending on the proposed use of the property.
Cleanup standards for commercial or industrial
use are in most instances less stringent than
those for residential use.
Landholding agencies must report any remedial
actions previously completed on the property. If
residual contamination remains at levels that can
be addressed with land-use controls (LUCs), the
landholding agency should describe these LUCs
that are required to run with the land to protect
cleanup remedies and to prevent exposure to
these contaminants.
What are "land-use controls" (LUCs),
and how do they relate to CERCLA
cleanup remedies and residual
contamination?
LUCs consist of institutional controls (e.g., restrictive
covenants) and engineering controls (e.g.,
fences and landfill caps) designed to prevent exposure
to residual contamination and to protect
cleanup remedies. LUCs can apply to a portion of
surplus property or to the entire site. They can
apply to proposed remedial actions to be completed
by the landholding agency or the property’s
purchaser. Post-transfer LUC management responsibilities
vary from state to state and even from
one project to another, depending on state statutes
and regulators’ decisions. Assignment of
these LUC responsibilities should be clarified with
the landholding agency, the proposed grantee, and
with regulators, as necessary. LUCs should be
described in the conveyance documents.
How much due diligence information
should landholding agencies provide to
GSA with their Reports of Excess?
This depends on the condition of the property.
For all excess parcels, landholding agencies should
summarize the results of their records searches
and any preliminary assessments, site inspections,
remedial investigations, or Environmental Site
Assessments they performed. Sites with ongoing
or completed response actions should include
maps delineating the cleanup areas, evidence of
regulators’ concurrence, and a summary of the
cleanup process.
What are the different mechanisms in
CERCLA §120(h) for conveying real
property out of federal ownership?
GSA uses the terms "Timely Transfer," "Early Transfer,"
and "Clean Transfer" to describe the different
authorities contained within CERCLA §120(h) for
conveying federal real property out of federal ownership.
CERCLA §120(h)(3) provides for the different
Timely Transfers as well as the specific provision
in CERCLA §120(h)(3)(C) for Early Transfer.
CERCLA §120(h)(4) also includes a provision for
the seldom-used Clean Transfer.
These six different ways that the Federal Government
may comply with CERCLA §120(h) in real
property disposal are described below.
1. Timely Transfer
This mechanism applies where (a) there is no
record of hazardous substance activity, (b) contamination
is below actions levels with no restrictions
on use, or (c) contamination is above action
levels but controlled through LUCs, including deed
restrictions.
2. Timely Transfer - Operating Properly
and Successfully (OPS)
This mechanism can take place when the remedy is
not yet complete but EPA has determined that it is
"operating properly and successfully" (e.g., an
ongoing "pump and treat" groundwater cleanup
system).
3. Timely Transfer - Petroleum
This mechanism may occur when the only actionable
release is petroleum, which is not a CERCLA
hazardous substance according to CERCLA §101(14)
(unless the petroleum is contaminated with
hazardous substances and, thus, would be
actionable under CERCLA).
4. Timely Transfer – Potentially
Responsible Party (PRP)
This mechanism pertains to those transactions
when the grantee is also a "potentially responsible
party" under CERCLA with respect to the property.
CERCLA specifically excludes transfers to PRPs from
the requirement that the United States provide the
CERCLA §120(h)(3)(A)(ii) deed covenants.
5. Early Transfer under CERCLA §120(h)(3)(C)
This mechanism allows federal property to be
transferred prior to remedy completion via deferral
of the covenant that "all remedial action necessary…
has been taken" until post-conveyance. This
"Early Transfer Authority" (ETA) requires the concurrence
of the State’s Governor [and the U.S. EPA
for those sites listed on the National Priorities List
(NPL)], and regulatory approval of the cleanup
schedule. For more information, see GSA’s
Fact Sheet on Early Transfer Authority.
6. Clean Transfer under CERCLA §120(h)(4)
This mechanism allows for property transfer when
no release of any hazardous substances or petroleum
products has occurred. GSA does not use
this authority, as the procedures that need to be
followed to qualify for a Clean Transfer are more
onerous than the requirements for a Timely
Transfer. Grantees can obtain the same level of
protection from the Government through a
CERCLA §120(h)(3) Timely Transfer, which,
typically, is available for use in most cases that
might otherwise appear to be eligible for transfer
under the Clean Transfer provisions.
To be considered for early transfer,
the agency or department
transferring the property must
demonstrate the following:
• The new owner will use the
property in a manner suitable for
the site, and the new land use
will not pose an unacceptable
risk to human health or
the environment.
• The deed or agreement contains
certain assurances with regard to
response actions.
• The federal agency provides
public notice on the proposed
transfer, allowing the public to
provide comments.
• Early transfer will not
substantially delay any cleanup
actions on the property.
For an NPL site, both EPA and the
state governor must concur on the
early transfer approval. EPA regional
offices will work closely with state
officials to review the
early transfer request
and determine whether
the criteria have been
met to merit an early
transfer. Early transfer
cannot occur until the
CERCLA guarantee
(covenant) is explicitly
deferred by EPA and the state,
through the early transfer approval
process. An Interagency Agreement
(IAG) between EPA and the
landholding federal agency is not
required but will significantly help
EPA make the covenant deferral
decision. Once the transfer has
occurred and the
proposed remedy for the
contaminated site is
"operating properly and
successfully," the
transferring agency or
department shall provide
the new owner with a
written guarantee that all
necessary response actions have been
taken, regardless of whether the
cleanup was conducted by the federal
government or the new owner.
For more information about Early
Transfer Guidance, visit:
http://www.epa.gov/swerffrr
/doc/hkcover.htm
To learn more about federal facility
cleanup and reuse, visit:
http://www.epa.gov/swerffrr
Or contact:
U.S. EPA/FFRRO
401 M Street, SW. (5101)
Washington, DC 20460
Phone: 202 260-2856
E-mail: kelly.sheila@epa.gov
For guidance issued by DoD on the early
transfer of non-NPL sites, visit the BRAC
Environmental Cleanup Web Page:
http://www.dtic.mil/dtic/
6.2 Early Transfer Authority
CERCLA was recently amended to include the authority to defer the CERCLA § 120(h)(3)(A)(ii) covenant that
all remedial actions necessary to protect human health and the environment have been taken, and to transfer
property by deed, subject to certain additional statutory requirements. DoD intends to use this “Early
Transfer Authority” (ETA) to assist communities in expediting reuse of former defense facilities. By enabling
an LRA and other stakeholders to obtain full ownership of property earlier, those parties gain greater control
over the future of their community. One major benefit of ETA is that it allows for the productive reuse of
property right away rather than delaying final implementation of a reuse plan until cleanup is completed.
The ETA is a deferral, not a waiver, of the CERCLA covenant requirement. DoD (or any other Federal agency)
is still required to issue the warranty required under CERCLA, when all response actions necessary to protect
human health and the environment have been taken, or when there has been a demonstration to EPA that the
approved remedy is “operating properly and successfully.” The timing of this warranty will depend on the
selected remedy and can only occur when one of these two conditions can be met. At that time, the
transferring Federal Agency shall execute and deliver to the transferee an appropriate document containing
the warranty that all remedial action has been taken.
The ETA is self-implementing and can be used right now. Although no additional authority or regulations are
required, the DoD, EPA, and the states have guidance to implement the process. The EPA guidance only
addresses property on the NPL, while the DoD guidance extends to property not on the NPL.
Successful implementation of this authority requires that the DoD, the purchaser, the community, and the
regulatory agencies work very closely together. Not only is this partnership in the spirit of the BRAC process,
but it is mandated by statute. The Governor and EPA Administrator have approval authority to determine if
the protections and response action assurances required by statute are in place to allow the property transfer
to go forward.
Deferral of the CERCLA covenant is based on a finding that:
I. The property is suitable for transfer for the use intended by the transferee, and the intended use is consistent with protection of human health and the environment;
II. The deed or other agreement proposed to govern the transfer between the U.S. and the transferee of the property contains the assurances set forth in clause (ii);
III. The Federal agency requesting deferral has provided notice, by publication in a newspaper of general circulation in the vicinity of the property, of the proposed transfer and of the opportunity for the public to submit, within a period of not less than 30 days after the date of the notice, written comments on the suitability of the property for the transfer; and
IV. The deferral and the transfer of the property will not substantially delay any necessary response action at the property.
Component must provide the following response action assurances:
I. Any necessary restrictions on the use of the property to ensure the protection of human health and the environment;
II. There will be restrictions on the use necessary to ensure that required remedial investigations, response action, and oversight activities will not be disrupted;
III. All necessary response action will be taken and identify the schedules for investigation and completion of all necessary response action as approved by the appropriate regulatory agency; and
IV. The Federal agency responsible for the property subject to transfer will submit a budget request to the Director of the Office of Management and Budget that adequately addresses schedules for investigation and completion of all necessary response action, subject to congressional authorizations and appropriations.
BCT BRAC Cleanup Team
BRAC Base Realignment and Closure
CERCLA Comprehensive Environmental Response, Compensation, and Liability Act
DoD Department of Defense
EPA Environmental Protection Agency
ETA Early Transfer Authority
FOSET Finding of Suitability for Early Transfer
LRA Local Redevelopment Authorities
LUCs Land Use Controls
NPL National Priorities List
ODUSD(I&E)EM Offi ce of the Deputy Under Secretary of Defense (Installations and Environment)
Environmental Management
RAB Restoration Advisory Board
26.7 - Exhibit 12
42 U.S.C. 9620(h) REQUIREMENTS FOR CONVEYANCE OR TRANSFER OF FEDERAL REAL PROPERTY
Timely Transfer under 120(h) (3) .
Pursuant to 42 USC 9620(h) (1), the contract for sale or other transfer of real property on which any hazardous substance was stored for one year or more, known to have been released, or was disposed of, shall include a notice of the type and quantity of such hazardous substance and notice of the time at which such storage, release, or disposal took place, to the extent such information is available on the basis of a complete search of agency files.
Pursuant to 42 USC 9620(h)(3)(A)(i), each deed entered into for the transfer of such property by the United States to any other person or entity shall contain, to the extent such information is available on the basis of a complete search of agency files:
a notice of the type and quantity of such hazardous substances,
notice of the time at which such storage, release, or disposal took place, and
a description of the response or corrective action taken, if any. [This includes a description of all institutional and engineering controls put into action on the property and of the conditions upon which these controls may be lifted.]
Pursuant to 42 USC 9620(h) (3) (A) (ii), except in cases where the person or entity to whom the real property is transferred is a potentially responsible party with respect to such property [42 USC 9620(h) (3) (B)], or in cases where a deferral is granted pursuant to 42 USC 9620(h) (3) (C), the deed shall also contain a covenant warranting that:
all response action necessary to protect human health and the environment with respect to any such substance remaining on the property has been taken 1 before the date of such transfer , and that
any additional response action found to be necessary after the date of such transfer shall be conducted by the United States.
Additionally, pursuant to 42 USC 9620(h)(3)(A)(iii), the deed shall also include a clause granting the United States access to the property i n any case in which response or corrective action is found to be necessary after the date of such transfer .
26.7 - Exhibit 12--Continued
Pursuant to CERCLA Section 104, as delegated by Executive Order 12580, the Forest Service generally has the lead agency authority with respect to the cleanup of hazardous substances on National Forest System (NFS) lands. Under CERCLA and the National Contingency Plan (NCP), 40 C.F.R. Part 300, the role of the State with respect to a Forest Service lead response action on NFS lands is to identify the State's applicable or relevant and appropriate requirements (ARARs). The State has no authority to oversee a Forest Service lead CERCLA response action on NFS lands, require the Forest Service to enter into an agreement under the State's Voluntary Cleanup Program (VCP), or require the Forest Service to pay the State's oversight costs. However, there may be unique circumstances where a State's role may go beyond responding to the Forest Service's request to identify State ARARs. For example, depending on the facts of a particular site, the State may attempt to assert its authority with respect to “hazardous waste” under the Resource Conservation and Recovery Act (RCRA). Consult with OGC PCT concerning sites where a State environmental enforcement agency is seeking to assert its RCRA authority, e.g., through issuing a Notice of Violation (NOV) or administrative order.
CERCLA Section 120(h)(3)(A)(ii)(I) requires a deed covenant that all response actions necessary to protect human health and the environment have been taken before the transfer . Pursuant to CERCLA and the NCP, the Forest Service is responsible for making that determination at Forest Service lead sites on NFS lands. In addition, pursuant to Section 120(h)(3)(A)(ii)(II), the Forest Service must covenant that any additional response action found to be necessary after the transfer , with respect to hazardous substances on the property before the transfer , will be conducted by the United States. There may be situations where the transferee may request a “no further action” determination by a State, as a condition of the negotiated property transfer agreement. Such a provision in the transfer agreement is not recommended because the State may then seek to assert an “oversight” role in the cleanup. In most cases, the determination that no further response actions are necessary will be made solely by the Forest Service and the Forest Service will then be able to give the Section 120(h)(3)(A)(ii)(I) & (II) “no further action” and “comeback” covenants. Generally, these covenants should be sufficient to market the property and the “comeback” covenant, in particular, should be more than sufficient assurance to the transferee that the United States stands behind the environmental condition of the property.
Section 120(h)(3)(B) provides that, for purposes of the 120(h)(3)(A)(ii)(I) “no further action” covenant, the agency can covenant that all necessary response action has been taken before the date of the transfer if construction and installation of the approved remedy has been completed and has been demonstrated to Environmental Protection Agency (EPA) that the remedy is “operating properly and successfully” (OPS). Carrying out long-term pumping and treating or operations and maintenance requirements will no preclude an OPS determination. Pursuant to Section 120 (h)(3)(B), the OPS determination is made by EPA, not the State.
26.7 - Exhibit 12--Continued
Early Transfer under Section 120(h)(3)(C), Covenant Deferral Request (CDR) .
An alternative that may be available is for the Forest Service to proceed with an “ Early Transfer ” under a CERCLA Section 120(h)(3)(C) Covenant Deferral, which allows the transfer of contaminated property by deferring the Section 120(h)(3)(A)(ii)(I) covenant that all necessary response action has been taken until after the transfer , provided that certain requirements are met, including obtaining concurrence from the Governor of the State (for non-NPL site), or the Administrator of the EPA (for NPL sites), that the property is “suitable” for early transfer . The suitability determination must be based on a finding that: (1) the property is suitable for the intended use by the transferee, and the intended use is consistent with protection of human health and the environment; (2) the deed contains “response action assurances”, including provisions for any necessary use restrictions on the property to ensure protection of human health and the environment and any necessary use restriction so that the cleanup will not be disrupted; (3) the agency has provided notice in the Federal Register and a 30-day opportunity for public comment on the suitability of the property; and (4) the early transfer will not substantially delay any necessary response action. A considerable amount of coordination must be done with the proposed transferee to “privatize” the cleanup, i.e., where the transferee agrees to conduct the cleanup. Such an agreement with the transferee can satisfy the “response action assurances” requirement of the suitability determination. Under an “ Early Transfer ” where the cleanup is “privatized”, the transferee will then bear the responsibility of interaction with the State concerning satisfying State requirements. At a non-NPL site, the State will have to agree with this arrangement in its concurrence to the suitability determination.
Pursuant to 42 USC 9620(h)(3)(C)(ii), in cases where the Administrator, with the concurrence of the Governor of the State in which the facility is located (in the case of real property at a Federal facility that is listed on the National Priorities List), or the Governor of the State in which the facility is located (in the case of real property at a Federal facility not listed on the National Priorities List) grants a deferral under 42 USC 9620(h)(3)(C), concerning the requirement to undertake all response action necessary to protect human health and the environment before the date of the transfer , the deed shall contain assurances that—
provide for any necessary restrictions on the use of the property to ensure the protection of human health and the environment;
provide that there will be restrictions on use necessary to ensure that required remedial investigations, response action, and oversight activities will not be disrupted;
26.7 - Exhibit 12--Continued
provide that all necessary response action will be taken and identify the schedules for investigation and completion of all necessary response action as approved by the appropriate regulatory agency; and
provide that the Federal agency responsible for the property subject to transfer will submit a budget request to the Director of the Office of Management and Budget that adequately addresses schedules for investigation and completion
of all necessary response action, subject to congressional authorizations and appropriations.
In the case where a deferral under 42 USC 9620(h)(3)(C) has been granted, once all response action necessary to protect human health and the environment with respect to any hazardous substance remaining on the property on the date of transfer has been taken 1 , the United States shall execute and deliver to the transferee, pursuant to 42 USC 9620(h)(3)(C)(iii), an appropriate document containing a warranty that all such response action has been taken.
Clean Transfers under Section 120(h)(4).
“Clean Transfers” are authorized under Section 120(h)(4), which was added to CERCLA Section 120(h) as part of the Community Environmental Response Facilitation Act, primarily to expedite the transfer of “clean” portions of military bases that were being closed under the base closure laws. In addition to properties being transferred under the base closure laws, Section 120(h)(4) authorizes the transfer of “uncontaminated” property “on which the United States plans to terminate Federal Government operations” (TFGO). “Uncontaminated” for purposes of Section120(h)(4) means that “no hazardous substances and no petroleum products or their derivatives were known to have been released or disposed of” on the property. The investigation required under Section 120(h)(4) is different from, and more complex than, the “complete search of agency files” required under Section 120(h)(1) - (3). With respect to properties located within NPL sites, EPA is responsible for concurrence with the finding that the property is “uncontaminated.” For properties not on the NPL, the State DEQ or equivalent agency is responsible for concurrence with findings that properties are “uncontaminated” by hazardous substances under Section 120(h)(4).
Because of the vague and potentially complex requirements to qualify a parcel for a “Clean Transfer ” under Section 120(h)(4), the United States General Services Administration (GSA) has indicated that the Section 120(h)(4) authority has rarely been used and recommends that the authority be avoided. GSA and OGC PCT have opined that Federal agencies have the discretion to use Section 120(h)(3) “Timely Transfer ” procedures, instead of Section 120(h)(4) “Clean Transfer ,” whenever Section 120(h)(3) is otherwise applicable. Therefore, for properties where
26.7 - Exhibit 12--Continued
there is no record of hazardous substance activity, or no evidence of releases of hazardous substances that require a response action, the Forest Service should assert that “all necessary
response actions” have been taken and assert the Section 120(h)(3)(A)(i) “Timely Transfer ” deed covenants.
In the event that the Forest Service, in its discretion, determines that it is in the interest of the Forest Service to use the Section 120(h)(4) “Clean Transfer ” authority, the Forest Service should consult with OGC PCT concerning coordination with the State. Transaction screening worksheets and/or Phase I/II reports must be submitted for DEQ review no less than 6 months in advance of expected termination of Forest Service operations on the property. Concurrence is deemed obtained if the State does not respond within 90 days. Because of the Constitutional principle of Supremacy of the Federal Government, a State's non-concurrence cannot prevent a Federal agency from transferring the property. In many cases the State will provide comments or a letter stating that no further action is needed. Although State approval is not required, the authorized officer should make every effort to address any comments or concerns offered by the State prior to conveyance (See EM-2160-2, Forest Service Guide to Land Transactions, for additional information related to TFGO). Consult with the OGC Pollution Control Team concerning issues relating to obtaining State concurrences under CERCLA Section 120(h)(4).
Under 42 USC 9620(h)(4), the term “Termination of Federal Government Operations” refers to the termination of discrete activities or functions by an agency (e.g., administrative sites and work centers where there is a federal workforce present) at the subject property upon which the property will be conveyed. TFGO does not include operations by permittees or concessionaires. Pursuant to 42 USC 9620(h)(4), when a property will be transferred upon Termination of Federal Government Operations, a detailed investigation of the real property shall be completed at least 6 months before the termination of operations to determine or discover the obviousness of the presence or likely presence of a release or threatened release of any hazardous substance or any petroleum product or its derivatives, including aviation fuel and motor oil , on the real property.
The results of the investigation shall be provided immediately to the Administrator and State and local government officials, and made available to the public [provide public notice]. The primary purpose of this investigation is to speed the transfer and beneficial reuse of the property by enabling the segregation of “uncontaminated” and “contaminated” parcels, since 42 USC 9620(h)(4) enables the transfer of the “uncontaminated” parcels while the cleanup of the “contaminated” parcels is completed.
The investigation is deemed to be complete when, in the case of real property that is part of a facility on the National Priorities List, the Administrator of the EPA [or his designated official] concurs with the results of the investigation, or, in the case of real property that is not part of a facility on the National Priorities List, the appropriate State official concurs. In the case when
26.7 - Exhibit 12--Continued
concurrence is required from a State official, the concurrence is deemed to be obtained if, within 90 days after receiving a request for the concurrence, the State official has not acted (by either concurring or declining to concur) on the request for concurrence. Because of constitutional principles relating to supremacy of the Federal Government, a State's refusal to concur cannot prevent the transfer . However, the agency should document in its files the reasons why it disagrees with the State's rationale for declining to concur.
Pursuant to 42 USC 9620(h)(4)(D), the deed entered into for the sale or transfer of any “uncontaminated” parcel of such property by the United States to any other person or entity shall contain—
a covenant warranting that any response action or corrective action found to be necessary after the date of such sale or transfer shall be conducted by the United States; and
a clause granting the United States access to the property in any case in which a response action or corrective action is found to be necessary after such date at such property, or such access is necessary to carry out a response action or corrective action on adjoining property.
Transmittal of "EPA Guidance on the Transfer of Federal Property by Deed Before All Necessary Remedial Action Has Been Taken Pursuant to CERCLA Section 120(h)(3)"
MEMORANDUM
SUBJECT: Transmittal of "EPA Guidance on the Transfer of Federal Property by Deed Before All Necessary Remedial Action Has Been Taken Pursuant to CERCLA Section 120(h)(3)" FROM: Timothy Fields, Jr. (SIGNED)
Acting Assistant Administrator TO: Superfund National Program Managers, Regions I-X
Office of Regional Counsel, Regions I-X DATE: June 16, 1998
This memorandum transmits the "EPA Guidance on the Transfer of Federal Property by Deed Before All Necessary Remedial Action Has Been Taken Pursuant to CERCLA Section 120(h)(3)," otherwise known as the Early Transfer Guidance. This guidance is for the EPA Regions to use when reviewing requests from federal departments and agencies that are transferring property to defer the CERCLA Section 120(h)(3) covenant that all necessary remedial actions have been taken.
EPA is fully supportive of the early transfer process. When a transferee agrees to conduct the response action, this new authority provides other federal departments and agencies with an opportunity to secure cleanup by having other non-federal parties conduct cleanup. This could yield significant benefits to human health and the environment and savings to the taxpayer. In all instances, however, the landholding federal agency remains responsible for cleanup.
The Early Transfer Guidance benefits from the input of an interagency workgroup composed of EPA, the Department of Defense, the Department of Energy, and the General Services Administration. The interagency workgroup discussed several issues related to early transfer that are covered in this policy. Earlier versions of the guidance were also shared with ASTSWMO. This is, however, an EPA policy, not an interagency product.
The guidance establishes a process by which an EPA regional office should review an early transfer request. This process begins with the transferring federal agency submitting information of a sufficient quality and quantity to EPA which will support its request for a deferral and provide a basis for EPA to make its determination. This information should be submitted to EPA in the form of a Covenant Deferral Request (CDR). At base closure sites where an early transfer is being sought, EPA anticipates that the Base Closure Team, including the EPA representative, will work together in drafting the CDR to expedite the transfer.
Finally it is important to note that states play an important role in this process regardless of whether the parcel under review is on the National Priority List Federal Facility or not. States must also concur on the early transfer.
I believe this Early Transfer Guidance provides useful information to the Regions to assist federal departments and agencies in expediting the early transfer of property. If you have any questions regarding this guidance, please contact the Federal Facilities Restoration and Reuse Office at (202) 260-9924.
cc: Craig Hooks, Federal Facilities Enforcement Office
Lisa Friedman, Office of General Counsel
Kathy Gorospe, American Indian Environmental Office
Federal Facility Leadership Council
Defense Environmental Restoration Task Force
Sherri W. Goodman, Department of Defense
Raymond Fatz, Department of Army
Ellsie Munsell, Department of Navy
Thomas McCall, Jr., Department of Air Force
Al Lowas, Air Force Base Conversion Agency
James Owendoff, Department of Energy
Jim Fiori, Department of Energy
Robert DeGrasse, Department of Energy
Brian Polly, General Services Administration
Willie Taylor, Department of Interior
Tom Kennedy, Association of State and Territorial Solid Waste Management Officials
Stan Phillipe, Association of State and Territorial Solid Waste Management Officials
Jerry Pardilla, National Tribal Environmental Council
Despite mounting pressure from environmentalists and regulators, the coal industry is betting big that its low cost and abundance will fuel future growth.
WRIGHT, WYO . • Every minute, a machine at Peabody Energy Corp.'s North Antelope Rochelle mine scrapes an 80-foot wall of coal with a giant steel claw. With each swipe, the beast pivots and deposits a heap of black rock into a waiting truck.
From a distance, the yellow CAT looks like a Tonka toy. But it stands two stories tall, with 12-foot tires. On its side, a display resembling a basketball shot clock records the weight of each load.
This one reads 398 tons — enough to power a typical American household for 60 years.
That a single machine can extract decades' worth of energy underscores the scale of mining here in Powder River Basin, the source for 40 percent of the nation's coal and the fuel for 80 percent of Missouri's electricity. "We move in a day what some of the mines in the Midwest move in a month, or small Appalachian mines move in a year," boasts Jeane Hull, a Peabody group vice president who oversees the company's Western U.S. operations.
The breathtaking scope translates directly into the low costs that drive America's continuing addiction to coal-fired power — despite dire climate-change warnings and the growing chorus calling for clean fuels. At today's prices, it would take $60 in natural gas to produce the same energy as a $14 ton of Powder River Basin coal. Coal costs more to ship to market, but even if you tripled its price to account for rail transport to far-flung plants, it's still cheaper than raw natural gas — without adding in pipeline costs, said Steven F. Leer, chief executive of Creve Coeur-based Arch Coal Inc., the second-largest producer in the basin after St. Louis-based Peabody.
Arch and Peabody executives say that's not likely to change over the next decade, despite rising coal production costs, falling natural gas prices, the push for wind and solar power, and an alphabet soup of new environmental and safety restrictions.
Big Coal's expansion plans have prompted the Sierra Club and other environmentalists to use the courts and everything else in their power to stop them. They believe pollution rules and declining costs for alternatives will combine to erode coal's historic price edge. Bruce Nilles, chief of the Sierra Club's Beyond Coal campaign, confidently pronounces the "old days" of cheap coal "long gone."
The coal industry begs to differ. Indeed, companies such as Arch and Peabody are pushing more chips into the pot, betting big that demand for coal — particularly the premium variety mined here in the Powder River Basin — will continue to grow. That growth may come at the expense of other coal producing regions, especially Central Appalachia. And utility executives concede that sweeping climate change legislation, if it ever passes, could make coal-fired energy prices spike.
But the industry has a backup plan that could create a whole new battlefield with environmentalists: exporting Wyoming's rich reserves to power-hungry countries such as China, where economists see the demand curve trending higher for years, if not decades, as billions of people seek to claw their way into the modern world.
The other fundamental question the opponents of coal struggle to answer: If not coal, what? No alternative energy source — or combination of sources — can yet provide enough power to fire the factories and cool the homes of a nation spoiled for decades by cheap electricity.
Robert Clayton, chairman of the five-member Missouri Public Service Commission, said coal will remain the workhorse fuel in the state for years to come.
"At the end of the day, the consumers want the lights on when they turn them on," he said. "And it's up to us to make sure the utilities have the power to do that."
DIGGING IN
Altogether, coal companies work a dozen mines in the Powder River Basin, clustered together in a narrow north-south strip near Gillette, Wyo., the self-proclaimed "Energy Capital of America." Peabody and Arch own five of them, including the two largest. Together, the two companies control more than 4 billion tons of basin reserves and last year accounted for more than half of the coal mined here.
Peabody, the world's largest private-sector coal miner, has a permit to dig into a new 800 million-ton block of coal just north of its flagship North Antelope Rochelle mine, which will produce more than 100 million tons of coal this year.
The new School Creek mine could be tapped as soon as next year. The company has said it will produce up to 35 million tons a year.
To outsiders, coal is coal. But School Creek represents the coal qualities sought by utilities — high energy content and low sulfur. Vic Svec, a Peabody senior vice president, discusses it with the reverence that a wine collector speaks about a prized vintage.
"This is a fantastic reserve block that will be developed," Svec said. "It's just a matter of timing."
Creve Coeur-based Arch is growing in other ways. A year ago, it paid rival Rio Tinto Plc $761 million for Jacobs Ranch, a sprawling mine that shares a border with its giant Black Thunder operation. The combination yielded the world's largest mining complex, producing a staggering 4 tons of coal per second.
CLIMATE FOR COAL
Big Coal executives have little doubt that the Powder River Basin output will continue to grow. But they can extract only what their customers — power producers, such Ameren Corp. in St. Louis — will buy. And the optimism in the coal fields stands in stark contrast to how some others, particularly regulators and environmentalists, view its future. The industry faces political threats on two fronts: a slew of new rules to curb pollution by existing plants and the longer-term prospect of climate change legislation.
The white-hot politics of climate change remain a wild card. Many climate scientists warn that nothing short of a drastic reduction in emissions of carbon dioxide and other heat-trapping gases will prevent the worst effects of global warming. And no single source puts off as much CO2 as coal-burning power plants.
Congressional Democrats failed to pass climate legislation last year, and the chance for such a measure dimmed considerably when Republicans grabbed control of the House last month. But the Obama administration is pursuing another avenue. Spurred by a landmark Supreme Court decision in 2007, the EPA has declared greenhouse gases a health threat. New EPA restrictions on new sources of CO2 will take effect Jan. 2 — making it nearly impossible to build or expand a coal-fired power plant. The agency on Wednesday said new rules affecting existing power plants could be issued in 2015 or 2016.
"I think it's safe to say that getting a coal plant built is going to be a high hurdle going forward," said Shawn Schukar, who oversees environmental compliance strategy at Ameren, one of the nation's most coal-heavy utilities.
POLLUTION CONTROL
While the carbon regulations only will affect the industry's ability to expand, the nation's 500 existing power plants must soon grapple with separate regulatory pressures on their bottom line: Air- and water-quality regulations expected to be phased in over the next several years. The EPA is developing new rules that would force power plant operators to curb all sorts of pollution — nitrogen oxides, ozone, sulfur dioxide, particulates, mercury. The agency is also considering regulating disposal of toxic coal ash, in the wake of the 2008 disaster in Tennessee, where a disposal pond wall collapsed, coating 300 acres with wet coal ash and polluting two rivers.
The Brattle Group of Cambridge, Mass., estimates new federal environmental regulations could shut down almost one in every five coal-fired power plants nationwide, reducing coal use by 15 percent in the next decade.
The coal industry believes such threats are overblown. Arch recently performed an internal analysis, examining the fate of every coal-fired boiler in the country. (The 500 or so plants collectively include about 1,000 boilers.) The company concluded that more than 400 of the least efficient — some of which date back to the 1940s — would likely be retired under new EPA regulations.
Even if all of those boilers shut down over the next decade — unlikely, says Arch's Leer — it would only reduce annual coal burn by 118 million tons, or about 11 percent. That's because most of these inefficient plants often sat idle even in a good economy.
U.S. coal plants that escape the regulatory ax would, however, face costly retrofits, said Metin Celebi, a co-author of the Brattle report. The firm predicts that power producers might ultimately have to spend up to $180 billion on new pollution controls.
With the timing and severity of climate change legislation unclear, utility executives face a dilemma: Do they spend hundreds of millions of dollars to retrofit a coal-fired power plant when future political action could render it a white elephant? "If you make an investment and then slap on a high carbon tax," Schukar said, "it may make that investment look bad."
Of course, the EPA has already delayed some of the new rules. Many will be litigated for years. And the coal industry is spending millions of dollars lobbying Congress to fight every change. Peabody, for instance, sued the EPA, challenging its finding that greenhouse gases are a health threat. The company fought efforts in Colorado to switch four coal-burning power plants to natural gas. Peabody ultimately lost both challenges, but showed the will to tie up regulatory efforts in extended and expensive battles.
THE CAPACITY GAP
For all of the heat on King Coal, every other energy source faces its own vexing challenges. Wind, solar, natural gas and nuclear each face a different set of issues involving supply, capital investment, price or politics. Last year, coal-fired power accounted for nearly half of all electricity used in America; none of its opponents has yet offered any comprehensive plan to make up that gap, even with aggressive energy efficiency goals.
Renewable energy use is growing fast, propelled by state mandates and taxpayer-financed federal incentives. And while wind and the sun are free, turbines and solar farms remain expensive to build, especially compared to a coal-fired power plant that's already paid for, analysts say.
What's more, solar and wind farms can't generate power 24 hours a day, seven days a week, producing so-called baseload electricity. Wind farms in northwest Missouri, for instance, are available only about 25 percent of the time.
Nuclear power remains cheap to produce, but new plants could cost $10 billion or more, and Wall Street has so far been unwilling to make that bet — to say nothing of safety issues involving radioactive waste disposal that remain a political third rail.
The biggest threat to coal is cleaner-burning natural gas, specifically gas produced from shale rock. The Energy Information Administration, an arm of the U.S. Energy Department, this month more than doubled its estimate of technically recoverable natural gas reserves from shale. The flood of new supply and a weak U.S. economy has helped push down natural gas prices to $4.08 per thousand cubic feet from a high of $14 in mid-2008.
Energy consultants Black & Veatch estimate natural gas, which will be used to power 21 percent of electricity in 2011, will see its market share grow to 40 percent by 2035 while coal's shrinks from 48 percent to 21 percent.
But the new gas boom faces environmental problems, too. The technique for pulling gas out of shale rock with high-pressuring water — called hydraulic fracturing, or fracking — has sparked a public backlash over contamination of groundwater and drinking water in nearby neighborhoods.
And some question the wisdom of making a long-term bet on natural gas — a fuel that Duke Energy Corp. CEO Jim Rogers referred to as the "crack cocaine" of the power industry. Utilities in the past have gotten hooked on cheap gas and made huge investments, only to see prices spike and plants idled.
Gas won't be stealing much market share from coal anytime soon, said Bill O'Grady, a longtime energy analyst and chief market strategist at Confluence Investment Management LLC.
"I'm skeptical that these gas companies can pull this stuff out of the ground as cheaply as the current market price says they can," he said.
Like it or not, analysts say, the nation's energy future will rely heavily on sprawling strip mines like North Antelope Rochelle — dusty moonscapes where supersized machines and explosives scoop, shovel and blast away 24 hours a day to keep the lights on hundreds of miles away.
Even if coal executives are overestimating U.S. demand, they know that customers in a larger, faster-growing energy market — Asia — will take up the slack.
Peabody and Arch are both studying opportunities to ship millions of tons to places such as China, Taiwan, South Korea and perhaps India. Such plans could simultaneously pave the way for growth in the Powder River Basin and further galvanize environmental opposition.
"Exporting coal is a line in the sand to us," said Sierra Club's Nilles. "Why on God's green Earth would we ever enable that?"
is being reassigned to the enforcement office out of New Bedford.
And that city's mayor is outraged, calling the move "ill-advised," "uninformed," "insensitive" and "retaliatory."
Mayor Scott Lang's remarks, made to the Standard-Times of New Bedford and reported through the industry news site SavingsSeafood.com, come on the heels of reports last week that
Susan Williams, a criminal investigator in the NOAA's Boston/Chelsea fisheries law enforcement office is in the process of
being reassigned to the agency's New Bedford office , according to several sources inside and outside NOAA.
Williams played a role in an infamous prosecution of the Gloucester Auction, which, at one point, included an authorized entry by NOAA agents into the auction as documented by Gloucester police,
and excessive tactics that sparked an investigation and
damning report from the Department of Commerce's Inspector General's office.
to obtain a search warrant from an administrative judge.
However, repeated decisions now to transfer rather than fire employees involved in the abuses — including ousted NOAA police chief Dale Jones and formerly Gloucester-based NOAA prosecutor Charles Juliand — have caused the fishing industry to doubt Lubchenco's and other Obama administration officials' commitment in reforming the agency, and has raised the wrath of both Republican and Democratic members of Congress who represent coastal communities from Maine to North Carolina.
The cities of Gloucester and New Bedford , the nation's oldest and highest-value oldest seaports, respectively, are also currently suing Lubchenco and Commerce Secretary Gary Locke for the agency's
implementation of the Obama administration's "catch share" fisheries management policy,
which pushes for further consolidation of the New England groundfish fleet into the hands of the largest and wealthiest vessel owners, causing unemployment, and wreaking economic havoc in the two cities.
The word that Williams is in line for reassignment to New Bedford, Lang indicated, only raises further questions regarding Lubchenco's giving serious attention to the growing NOAA enforcement scandal.
" We're apprehensive about anyone who was involved in the abuses that were documented in the inspector general's report now being transferred to New Bedford, " Mayor Lang told the Standard-Times.
Lang said that New Bedford's local NOAA office — unlike in Gloucester, where NOAA regulates fisheries from Maine to the Carolinas from its Northeast regional headquarters in Blackburn Industrial Park —
has generally enjoyed a good, solid relationship with the fishing fleet.
" The individuals who work out of New Bedford, by and large, are highly respected by the fishing community," Lang said. "To bring someone into the mix
(who was) part of the inspector general's focus is something that I don't quite understand.
"She should be monitoring freshwater pike in the Great Lakes," Lang said, not assigned to the No. 1 value fishing port in the nation, he said."
####
8/23/10, " The longtime federal fisheries police chief, Dale Jones was put on paid administrative leave in April following the first report by Inspector General Todd Zinser,
released the latest in a series of reports finding fisheries lawyers and enforcement officers abused their power in prosecuting fishermen and dealers like (Warren) Kremin, who lives in Rockland County. Among the most recent charges were
cases of excessive fines and prosecutions that all but mandated costly settlements."...
NOAA built a $49 million slush fund obtained by pressuring fishermen which the federal employees used for their own enjoyment, travel, personal vehicles. This is on top of their $5 billion budget.
In a recent investigation of NOAA, the US Inspector General was met by a lack of cooperation from NOAA counsel Lois Schiffer , a Lubchenco hire.
####
7/13/10, Gloucester Times: " The letter also openly challenges Schiffer's written plan not to look back at any miscarriages of justice by NOAA lawyers and agents. Due to Internet transmission problems, Schiffer's office could not be presented with questions about today's story until nearly deadline, so no responses were available....
Congressional reaction to the (US Inspector General's) IG's report has been angry and varied."...
These distinctions between rules of repose of statutes of limitations are
particularly significant in the context of Section 9658. Rules of repose create substantive
rights, which would be abrogated if Section 9658 were held to affect state rules of repose
— a significantly more ambitious legislative objective than tolling the statute of
limitations. And because the concepts of tolling and accrual are (under state law)
inapplicable to rules of repose, it seems counter-intuitive to toll a rule of repose by means
of a federally-imposed accrual date
Preemption laws are construed narrowly, and it is
generally presumed that Congress does not preempt state law by statute unless it clearly
expresses the intent to do so. See, e.g., New York State Dept. of Social Servs. v.
Dublino, 413 U.S. 405 (1973) (“If Congress is authorized to act in a field, it should
manifest its intention clearly. It will not be presumed that a federal statute was intended
to supersede the exercise of the power of the state unless there is a clear manifestation of
intention to do so. The exercise of federal supremacy is not lightly to be presumed.”).
Requiring that Section 9658 apply only to statutes of limitation (which are
unambiguously referenced in the text of the statute) is consistent with this principle of
narrow construction.
A construction of CERCLA not encompassing rules of repose would also allow
courts to avoid potentially difficult constitutional questions in the application of Section
9658. If the FRCD were held to affect the rule of repose in a case where the repose
period had ended prior to the 1986 enactment of the SARA Amendments, Section 9658
could have the effect of “reviving” a cause of action that is substantively extinct (as
opposed to being only procedurally barred by a statute of limitations). Along the same
lines, it would extinguish the repose rights of potential defendants, arguably violating
their due process rights. See Alfred R. Light, New Federalism, Old Due Process, and
Retroactive Revival: Constitutional Problems with CERCLA’s Amendment of State Law,
40 U. Kan. L. Rev. 365, 392-95 (1992).
Conclusion
Even as the states reach consensus on the recognition of a “discovery rule” for
toxic tort type claims, the application of CERCLA Section 9658 to state statutes of
limitations remains important to litigants, particularly in situations where there is no
underlying CERCLA cleanup involved. The battle lines, however, are also clearly being
drawn in response to the increased number of cases where plaintiffs seek to invoke
CERCLA as a means to circumvent the application of state rules of repose. Despite the
passage of two decades since the enactment of the provision, courts that have addressed
this issue to date are divided on whether Congress intended that Section 9658 should
apply in this context. Until courts achieve clarity on the issue, toxic tort litigants are
well-advised to consider carefully the complexities of CERCLA’s potential application to
state rules of repose, as well as statutes of limitation.
The distinction appears to be recognized in certain other federal laws, as well. 28 U.S.C. § 1658(b)(2), for
example, creates a five-year statute of repose for private actions involving securities fraud. This period
(which is not specifically denoted a “repose” period) is not tolled by fraud and is not (unlike the general
statute of limitations for federal claims set forth in 28 U.S.C. § 1658(a)) dependent on the date on which the
action accrues.
(Updates with consumer advocate in the fourth paragraph, AIG spokesman in the sixth.)
Dec. 29 (Bloomberg) -- American International Group Inc., the bailed-out U.S. insurer, failed to report $18.7 billion of policyholder guarantees at two property-casualty subsidiaries in 2008, a Pennsylvania regulator said.
National Union Fire Insurance Co. of Pittsburgh and American Home Assurance Co., which issued the guarantees to bolster other AIG units, had contingent liabilities tied to the promises of $157 billion on Dec. 31, 2008, compared with the $138.3 billion disclosed at the time, Robert Pratter, the state's acting insurance commissioner, said today in a report.
AIG was instructed by the regulator to limit or end its intra-group guarantees, according to the report. It doesn't face financial penalties, Rosanne Placey, a spokeswoman for the Pennsylvania regulator, said in an e-mail. The New York-based insurer, once the world's largest, was brought to the brink of collapse in September 2008 when the company was unable to meet its obligations without a cash injection from the government.
Failing to report contingent liabilities may be “a serious problem because of the systemic risk for the whole enterprise,” said Robert Hunter, a former Texas insurance commissioner who is now insurance director at the Washington-based Consumer Federation of America.
Insurance companies are required to disclose their subsidiaries' guarantees to state regulators. They aren't bound to recognize the obligations as liabilities on balance sheets.
Remediation Plan
“We have adopted a remediation plan to ensure that our disclosures are more accurate going forward,” Mark Herr, an AIG spokesman, said in an e-mailed statement. “We are not required to establish a liability for these guarantees in which the likelihood of payment is remote.”
AIG came under investigation in Pennsylvania as rivals including Chubb Corp. and Liberty Mutual Holding Co. complained that the company's government backstop was allowing the insurer to sell policies below competitive rates.
Pennsylvania said in the report that AIG's pricing and underwriting were “not out of line” with competitors. The Government Accountability Office, the investigative arm of the U.S. Congress, said in a March 2009 report it found no evidence of under-pricing by AIG.
AIG agrees with Pennsylvania's findings, Robert Schimek, chief financial officer of Chartis, the company's property- casualty business, said in a Dec. 7 letter to the regulator. AIG's units “have the appropriate controls to ensure more accurate disclosures,” Schimek said in the letter, which was attached to the report.
--With assistance from Noah Buhayar in New York. Editors: Dan Reichl, Rick Green.
To contact the reporters on this story: Andrew Frye in New York at afrye@bloomberg.net; Hugh Son in New York at hson1@bloomberg.net
To contact the editors responsible for this story: Dan Kraut at dkraut2@bloomberg.net; David Scheer at dscheer@bloomberg.net.
Robert Benmosche, chief executive of American International Group (AIG), feels so vindicated by his company's turnaround from bailout-recipient to a company with actual value that he told the Wall Street Journal he was wondering whether he was going to get phone calls saying he was right:
"I was wondering if I might get a call from someone saying maybe 'you were right,' because we look better than we did last May and we can see the finish line from here, and it comes with a profit for the taxpayers," Mr. Benmosche said in an email. "But as I learned in [Ayn Rand's book] 'Atlas Shrugged,' find your Thank Yous from within."
When did Benmosche read "Atlas Shrugged"? After his company received a $182.3 billion bailout from taxpayers, where Uncle Sam became chief shareholder, owning 92 percent of his company? I can't seem to recall the part of the book where Rand said that your company should follow the Federal Reserve in lockstep and not disclose important information to taxpayers regarding what you're doing with their money:
AIG said in a draft of a regulatory filing that the insurer paid banks, which included Goldman Sachs Group Inc. and Societe Generale SA, 100 cents on the dollar for credit-default swaps they bought from the firm. The New York Fed crossed out the reference, according to the e-mails, and AIG excluded the language when the filing was made public on Dec. 24, 2008. The e-mails were obtained by Representative Darrell Issa, ranking member of the House Oversight and Government Reform Committee.
The New York Fed took over negotiations between AIG and the banks in November 2008 as losses on the swaps, which were contracts tied to subprime home loans, threatened to swamp the insurer weeks after its taxpayer-funded rescue. The regulator decided that Goldman Sachs and more than a dozen banks would be fully repaid for $62.1 billion of the swaps, prompting lawmakers to call the AIG rescue a "backdoor bailout" of financial firms.
Yes, Mr. Benmosche, you're a regular John Galt. I'll be sure to call you and tell you just that.
There are two mandates of the Federal Reserve Bank. Those are to promote stable prices and to maximum employment. Very soon they will be shown to completely fail on both accounts. The Bureau of Labor Statistics (BLS) after DECADES of rigging the unemployment numbers lower with insane adjustments and flat out lies will REVERSE their biased slant and start reporting realistic numbers as of January 1, 2011 in order to help demolish the Federal Reserve Banking system in the United States. US Changes How IT Reports Long-Term Unemployment http://www.usatoday.com/news/nation/2010-12-28-1Ajobless28_ST_N.htm This is NOT an accident or a false flag to steer us away from the truth....THIS IS PART OF THE TAKE DOWN OF THE FEDERAL RESERVE SYSTEM! Part 2 will be a hyper-inflationary price hikes in all commodities (gold and silver especially!) starting in early January.
Part 3 will be Ron Paul cracking open the secret files of the Fed to expose the fraud, manipulation and VAST secret monetary creation. the finally the the Fed will DIE. As in Dead. Kaput. Over. 2011 will be the turning point for the rebirth of our great nation.
Government Funding Sweetens Site Redevelopment With grants and incentives available from the federal to the local levels, brownfields are attracting businesses seeking well-positioned sites.
Concordia res parvae crescent - Work together to accomplish more
Read more: http://www.telegram.com/article/20110105/NEWS/101050435/1003/NEWS03#ixzz1AD03oceG WORCESTER — In a blisteringly worded memo, Department of Public Works and Parks Commissioner Robert L. Moylan Jr. called for national reform of how the U.S. Environmental Protection Agency deals with pollution controls imposed on cities and towns.
Mr. Moylan's letter was a response to recent news that the EPA had decided to join a lawsuit filed by the Conservation Law Foundation against the Boston Water and Sewer Commission.
The ramifications of the Boston case, which alleges the city has failed to effectively control storm-water pollution into the Charles, Mystic and Neponset rivers, could affect how Worcester's own storm-water runoff efforts are viewed by the EPA.
Mr. Moylan wrote that the EPA's decision to join the CLF suit is cause for concern, because Worcester holds the same EPA-issued storm-water permit. And also like Boston, the city's current permit has expired and a new permit is awaited. Mr. Moylan has said new orders the EPA has discussed for permit renewal could cost the city $1.2 billion.
“While this legal case does not directly involve Worcester, the actions by the EPA are both disturbing and telling and should cause every municipality great concern,” Mr. Moylan wrote.
The EPA does not seem to be taking into account budgetary struggles of cities such as Worcester, Mr. Moylan wrote. And Mr. Moylan wrote that he was puzzled why the EPA, with “practically unlimited” authority to act against permit violators, even joined the suit.
Mr. Moylan called the CLF an activist group with an extremist viewpoint.
“Worcester needs to be very concerned because like Boston, Worcester does not operate in a perfect world,” he wrote.
Submitted by Simha Bode on Wed, 12/29/2010 - 12:45pm.
It has been proven to me, we live in a world where White can mean Black and 2+2 can equal 5. Think Global act Local... Sounds positive. Is it?
Who is ICLEI? International Council for Local Environmental Initiatives What do they do? They are an NGO that specializes in regional "sustainable development" helping local governments and town councils implement Agenda 21. If you don't know what The Agenda for the 21st Century is, I would advise you to look into it. It is an all-encompassing UN Action Plan (1992). The other part of this big plan is in the Global Biodiversity Assessment Report. (resource links bellow)
I am not getting into all that this action plan does, it is basically a Global plan implemented on a Local level by "Non Government" fronts, who implement UN Policies that take control of our representative government and put it into the hands of regional, non-elected boards. You can guess who these boards are working for and what their goals are. If you don't think they could pull this off, open your eyes, A. 21 already has deep roots in all aspects of our society across the country.
Our educational system has been deeply infiltrated, from grammar school to high school the children are being taught to "think Global", Universities are spitting out "sustainable Development" activists. Some 550 communities across the US are ICLEI member and pay dues to them and are required to follow the ICLEI charter. The Obama admin. just pushed to make Millions of undeveloped acreage into protected fed. lands (which is the beginning of the "wild-lands" of Agenda 21). Senate Bill 787 the Clean Water Act puts our water under fed. control. Canada just passed Bill C 36, which is compared to our patriots act. Don't think it is in VT?
Think again... we have three community members of ICLEI; Burlington, S. Burlington and Brattleboro. Look at the title of Vermont's Law School's Initiative for the Environment, RECALIBRATING THE LAW OF HUMANS WITH THE LAWS OF NATURE....Sounds harmless enough? When you realize the implications of giving Nature superior rights over humans, you wont think so.
Agenda 21's "smart growth communities" and "wildlands" plan, separates man from nature so he wont endanger it; i.e Nature has rights over man. Sounds ludicrous I know.
(*added) This just posted on Vt Digger: 46 municipalities to receive $417,660 for planning as part of Vermont's "smart growth strategy." Smart Growth Vermont has a nice web site and it all "sounds" great. Is it just coincidence they use the same terminology as the UN's A.21 plan, have the same principals and are located in a ICLEI member community? If they are following A.21 Smart Growth why is there no reference on the web site?
Are we selling our sovereignty because our federal reserve notes have been stolen, and this is the remedy the thieves have offered?
I AM ALL FOR LOCAL, ORGANIC, CONSERVATION, ECOLOGY AND ALL THAT JAZZ! Don't get me wrong... It is just the fact that 2+2=5. Some towns have had enough of ICLEI and are taking action. Spokane, WA is one of them, they drafted a municipal code to be able to sever ties with ICLEI and an amendment to the city charter. I will quote one section of the code,
"WHEREAS, the people of the City of Spokane wish to see the Constitution and its Republican form of government upheld, along with the natural rights of each and every American to the unencumbered fruits of their labor, it is necessary to sever all ties with ICLEI, the United Nations, or any other entity that wishes to work against the Constitution and natural rights of the people of the United States of America."
A big goal of A.21 is to abolish private property, remember they use a slow phased programming so it will be excepted with little objection!... Do some research, figure it out for yourself and then take action, we need all hands on deck! Any group claiming "local action" is to be examined, we need to understand their origins, ties, the plans they are following and specifically the MONEY trail! Now is the perfect time for ICLEI to come in...(*guess I spoke to soon) Do you think our towns and elected officials are looking for funding during the recession? ICLEI will come into help, they aren't the only NGO's doing this either. They start with the lowest levels of governance, this is their cloak. Remember this is a Word-Smithing Game, It all sound so great; sustainable, green, bio-diversity, local, etc etc etc. Put on your goggles of humility, don't assume 2+2=4. Spread the word.
In Solidarity, Simha
I did a lot of reading of the original documents for this piece, which I recommend. I will leave you with just two links on the same site. their home page that is the best data base, with relevant documents and information (+Videos), that I could find, and their ICLEI Primer page.... Maybe I will post some more later. (copy and paste)
http://www.freedomadvocates.org
We conclude that failure to obtain written consent and in the absence of harm or injury and without QA or QAPP is arbitrary and capricious and is punishable for FEDERAL GOVERNMENT TYRANNY, EXTORTION, FRAUD AND DERELICTION OF DUTIES damages and civil penalties under THE MORRILL ACT, SHERMAN ACT, AND CLAYTON ACT FOR RETRIBUTION of $450,000 per day ESTABLISHMENT OF RELIGION AND SLAVERY SINCE JANUARY 1, 1983.
“Whenever the Federal Government assumes undelegated powers, its acts are unaithoritative, void, and of no force.” Thomas Jefferson
Securing the Republic
Thomas Jefferson, Preamble to a Bill for the More General Diffusion of Knowledge
Fall 1778 Papers 2:526--27
Whereas it appeareth that however certain forms of government are better calculated than others to protect individuals in the free exercise of their natural rights, and are at the same time themselves better guarded against degeneracy, yet experience hath shewn, that even under the best forms, those entrusted with power have, in time, and by slow operations, perverted it into tyranny; and it is believed that the most effectual means of preventing this would be, to illuminate, as far as practicable, the minds of the people at large, and more especially to give them knowledge of those facts, which history exhibiteth, that, possessed thereby of the experience of other ages and countries, they may be enabled to know ambition under all its shapes, and prompt to exert their natural powers to defeat its purposes; And whereas it is generally true that that people will be happiest whose laws are best, and are best administered, and that laws will be wisely formed, and honestly administered, in proportion as those who form and administer them are wise and honest; whence it becomes expedient for promoting the publick happiness that those persons, whom nature hath endowed with genius and virtue, should be rendered by liberal education worthy to receive, and able to guard the sacred deposit of the rights and liberties of their fellow citizens, and that they should be called to that charge without regard to wealth, birth or other accidental condition or circumstance; but the indigence of the greater number disabling them from so educating, at their own expence, those of their children whom nature hath fitly formed and disposed to become useful instruments for the public, it is better that such should be sought for and educated at the common expence of all, than that the happiness of all should be confided to the weak or wicked: . . .
The Founders' Constitution
Volume 1, Chapter 18, Document 11
http://press-pubs.uchicago.edu/founders/documents/v1ch18s11.html
The University of Chicago Press
The Papers of Thomas Jefferson . Edited by Julian P. Boyd et al. Princeton: Princeton University Press, 1950--.
NOTE: The 2004 version of the Region 9 PRG Table will remain at this web site in case users need to reference this historical document. However, the 2004 Table should no longer be used for contaminant screening of environmental media because it has been replaced with the more current Table above.
Claudia Copeland Specialist in Resources and Environmental Policy
The Senate and House could consider a number of water quality bills some time during the remaining days of the 111 th Congress. Recent press reports have indicated that legislators, especially in the Senate, are seeking to gather support for several bills, possibly packaged with others dealing with public lands and wildlife protection. This report describes 10 water quality bills pending in the Senate that could be candidates for consideration during the lame duck session of the 111 th Congress.
All of the water quality issues discussed below have been highlighted in recent press reports for inclusion in a package. All but one would amend the Clean Water Act (CWA), and all were approved by the Senate Environment and Public Works Committee in recent weeks. Similar House bills have been introduced for all but one of the Senate measures discussed in this report, and the House has passed two of them. With the exception of a bill on Chesapeake Bay, the individual bills are not likely to be considered controversial. Most of the individual bills would either reauthorize existing CWA provisions that address water quality concerns in specified geographic areas, or would establish similar provisions for other regions or watersheds. These water quality issues and related 111 th Congress bills are:
Estuaries under the CWA's National Estuary Program (H.R. 4715),
Chesapeake Bay (S. 1816),
Columbia River Basin (S. 4016),
Great Lakes (S. 3073 and S. 933),
Gulf of Mexico (S. 1311),
Lake Tahoe (S. 2724),
Long Island Sound (S. 3119),
P uget Sound (S. 2739), and
S an Francisco Bay (S. 3539).
The descriptions in this report are based on bills as reported by the Senate Environment and Public Works Committee, although if any of the bills were to receive further consideration, provisions could differ from the reported version or amendments offered. Further, if the Senate or House were to consider a group of water quality bills, the package might include more or fewer than those discussed here. Also, whether sufficient time remains for necessary action by both the Senate and House is highly uncertain.
$336,706,450 + $93,590,773 = $430,297,223 PAYABLE TO BEGIN SUPERFUND REMEDIATION
How Current is This? Where the law of a State requires a notice of an action concerning real property pending in a court of the State to be registered, recorded, docketed, or indexed in a particular manner, or in a certain office or county or parish in order to give constructive notice of the action as it relates to the real property, and such law authorizes a notice of an action concerning real property pending in a United States district court to be registered, recorded, docketed, or indexed in the same manner, or in the same place, those requirements of the State law must be complied with in order to give constructive notice of such an action pending in a United States district court as it relates to real property in such State.
(a) In a case of actual controversy within its jurisdiction, except with respect to Federal taxes other than actions brought under section 7428 of the Internal Revenue Code of 1986, a proceeding under section 505 or 1146 of title 11 , or in any civil action involving an antidumping or countervailing duty proceeding regarding a class or kind of merchandise of a free trade area country (as defined in section 516A(f)(10) of the Tariff Act of 1930), as determined by the administering authority, any court of the United States, upon the filing of an appropriate pleading, may declare the rights and other legal relations of any interested party seeking such declaration, whether or not further relief is or could be sought. Any such declaration shall have the force and effect of a final judgment or decree and shall be reviewable as such. (b) For limitations on actions brought with respect to drug patents see section 505 or 512 of the Federal Food, Drug, and Cosmetic Act.
How Current is This? Further necessary or proper relief based on a declaratory judgment or decree may be granted, after reasonable notice and hearing, against any adverse party whose rights have been determined by such judgment.
How Current is This? The United States Court of Federal Claims shall have jurisdiction to render judgment upon any set-off or demand by the United States against any plaintiff in such court.
SET-OFF
Defalcation; a demand which a defendant makes against the plaintiff in the suit for the purpose of liquidating the whole or a part of his claim.
A set-off was unknown to the common law, according to which mutual debts were distinct and inextinguishable except by actual payment or release.
The statute 2 Geo. II., which has been generally adopted in the United States with some modifications however, allowed, in cases of mutual debts, the defendant to set his debt against the other, either by pleading it in bar, or giving it in evidence, when proper notice had been given of such intention, under the general issue. The statute being made for the benefit of the defendant, is not compulsory the defendant may Waive his right, and bring a cross action against the plaintiff.
It seems, however, that in some cases of intestate estates, and of insolvent estates, perhaps owing to the peculiar wording of the law, the statute has been held to operate on the rights of the parties before action brought, or an act done by either of them.
Set-off takes place only in actions on contracts for the payment of money, as assumpsit, debt and covenant. A set-off is not allowed in actions arising ex delicto, as, upon the case, trespass, replevin or detinue.
The matters which may be set off, may be mutual liquidated debts or damages, but unliquidated damages cannot be set off. The statutes refer only to mutual unconnected debts; for at common law, when the nature of the employment, transaction or dealings necessarily constitute an account consisting of receipts and payments, debts and credits, the balance only is considered to be the debt, and therefore in an action, it is not necessary in such cases either to plead or give notice of set-off.
In general, when the government is plaintiff, no set-off will be allowed. But when an act of congress authorizes such set-off, it may be made.
Judgments in the same rights may be set off against each other at the discretion of the court.
How Current is This? The United States Court of Federal Claims shall have jurisdiction of any claim against the United States accruing after August 13, 1946, in favor of any tribe, band, or other identifiable group of American Indians residing within the territorial limits of the United States or Alaska whenever such claim is one arising under the Constitution, laws or treaties of the United States, or Executive orders of the President, or is one which otherwise would be cognizable in the Court of Federal Claims if the claimant were not an Indian tribe, band or group.
(a) Whenever an invention described in and covered by a patent of the United States is used or manufactured by or for the United States without license of the owner thereof or lawful right to use or manufacture the same, the owner's remedy shall be by action against the United States in the United States Court of Federal Claims for the recovery of his reasonable and entire compensation for such use and manufacture. Reasonable and entire compensation shall include the owner's reasonable costs, including reasonable fees for expert witnesses and attorneys, in pursuing the action if the owner is an independent inventor, a nonprofit organization, or an entity that had no more than 500 employees at any time during the 5-year period preceding the use or manufacture of the patented invention by or for the United States. Nothwithstanding [1] the preceding sentences, unless the action has been pending for more than 10 years from the time of filing to the time that the owner applies for such costs and fees, reasonable and entire compensation shall not include such costs and fees if the court finds that the position of the United States was substantially justified or that special circumstances make an award unjust. For the purposes of this section, the use or manufacture of an invention described in and covered by a patent of the United States by a contractor, a subcontractor, or any person, firm, or corporation for the Government and with the authorization or consent of the Government, shall be construed as use or manufacture for the United States. The court shall not award compensation under this section if the claim is based on the use or manufacture by or for the United States of any article owned, leased, used by, or in the possession of the United States prior to July 1, 1918. A Government employee shall have the right to bring suit against the Government under this section except where he was in a position to order, influence, or induce use of the invention by the Government. This section shall not confer a right of action on any patentee or any assignee of such patentee with respect to any invention discovered or invented by a person while in the employment or service of the United States, where the invention was related to the official functions of the employee, in cases in which such functions included research and development, or in the making of which Government time, materials or facilities were used. (b) Hereafter, whenever the copyright in any work protected under the copyright laws of the United States shall be infringed by the United States, by a corporation owned or controlled by the United States, or by a contractor, subcontractor, or any person, firm, or corporation acting for the Government and with the authorization or consent of the Government, the exclusive action which may be brought for such infringement shall be an action by the copyright owner against the United States in the Court of Federal Claims for the recovery of his reasonable and entire compensation as damages for such infringement, including the minimum statutory damages as set forth in section 504 (c) of title 17 , United States Code: Provided, That a Government employee shall have a right of action against the Government under this subsection except where he was in a position to order, influence, or induce use of the copyrighted work by the Government: Provided, however, That this subsection shall not confer a right of action on any copyright owner or any assignee of such owner with respect to any copyrighted work prepared by a person while in the employment or service of the United States, where the copyrighted work was prepared as a part of the official functions of the employee, or in the preparation of which Government time, material, or facilities were used: And provided further, That before such action against the United States has been instituted the appropriate corporation owned or controlled by the United States or the head of the appropriate department or agency of the Government, as the case may be, is authorized to enter into an agreement with the copyright owner in full settlement and compromise for the damages accruing to him by reason of such infringement and to settle the claim administratively out of available appropriations. Except as otherwise provided by law, no recovery shall be had for any infringement of a copyright covered by this subsection committed more than three years prior to the filing of the complaint or counterclaim for infringement in the action, except that the period between the date of receipt of a written claim for compensation by the Department or agency of the Government or corporation owned or controlled by the United States, as the case may be, having authority to settle such claim and the date of mailing by the Government of a notice to the claimant that his claim has been denied shall not be counted as a part of the three years, unless suit is brought before the last-mentioned date. (c) The provisions of this section shall not apply to any claim arising in a foreign country. (d) Hereafter, whenever a plant variety protected by a certificate of plant variety protection under the laws of the United States shall be infringed by the United States, by a corporation owned or controlled by the United States, or by a contractor, subcontractor, or any person, firm, or corporation acting for the Government, and with the authorization and consent of the Government, the exclusive remedy of the owner of such certificate shall be by action against the United States in the Court of Federal Claims for the recovery of his reasonable and entire compensation as damages for such infringement: Provided, That a Government employee shall have a right of action against the Government under this subsection except where he was in a position to order, influence, or induce use of the protected plant variety by the Government: Provided, however, That this subsection shall not confer a right of action on any certificate owner or any assignee of such owner with respect to any protected plant variety made by a person while in the employment or service of the United States, where such variety was prepared as a part of the official functions of the employee, or in the preparation of which Government time, material, or facilities were used: And provided further, That before such action against the United States has been instituted, the appropriate corporation owned or controlled by the United States or the head of the appropriate agency of the Government, as the case may be, is authorized to enter into an agreement with the certificate owner in full settlement and compromise, for the damages accrued to him by reason of such infringement and to settle the claim administratively out of available appropriations. (e) Subsections (b) and (c) of this section apply to exclusive rights in mask works under chapter 9 of title 17 , and to exclusive rights in designs under chapter 13 of title 17 , to the same extent as such subsections apply to copyrights.
§ 1738C. Certain acts, records, and proceedings and the effect thereof
How Current is This? No State, territory, or possession of the United States, or Indian tribe, shall be required to give effect to any public act, record, or judicial proceeding of any other State, territory, possession, or tribe respecting a relationship between persons of the same sex that is treated as a marriage under the laws of such other State, territory, possession, or tribe, or a right or claim arising from such relationship.
How Current is This? It is the policy of the United States that all litigants in Federal courts entitled to trial by jury shall have the right to grand and petit juries selected at random from a fair cross section of the community in the district or division wherein the court convenes. It is further the policy of the United States that all citizens shall have the opportunity to be considered for service on grand and petit juries in the district courts of the United States, and shall have an obligation to serve as jurors when summoned for that purpose.
How Current is This? In all original actions at law in the Supreme Court against citizens of the United States, issues of fact shall be tried by a jury.
How Current is This? In any case of admiralty and maritime jurisdiction relating to any matter of contract or tort arising upon or concerning any vessel of twenty tons or upward, enrolled and licensed for the coasting trade, and employed in the business of commerce and navigation between places in different states upon the lakes and navigable waters connecting said lakes, the trial of all issues of fact shall be by jury if either party demands it.
(a) A person shall not be imprisoned for debt on a writ of execution or other process issued from a court of the United States in any State wherein imprisonment for debt has been abolished. All modifications, conditions, and restrictions upon such imprisonment provided by State law shall apply to any writ of execution or process issued from a court of the United States in accordance with the procedure applicable in such State. (b) Any person arrested or imprisoned in any State on a writ of execution or other process issued from any court of the United States in a civil action shall have the same jail privileges and be governed by the same regulations as persons confined in like cases on process issued from the courts of such State. The same requirements governing discharge as are applicable in such State shall apply. Any proceedings for discharge shall be conducted before a United States magistrate judge for the judicial district wherein the defendant is held.
DECLARATION OF MR. T.W. ARMAN - DEMAND FOR ANSWER
INTERVENTION IN THE UNITED STATES OF AMERICA
EASTERN DISTRICT COURT OF CALIFORNIA
TWO MINERS & 360, 2744, 4400, 8000,
52,000, 88,000, 103 million ACRES of LAND
T.W. ARMAN and IRON MOUNTAIN
MINES, INC. et al, OWNER & OPERATOR
and on behalf of all others similarly situated
CITIZENS and STATESMEN in loco parentis,
parens patriae, supersedeas, qui tam, intervention.
v.
UNITED STATES OF AMERICA
STATE OF CALIFORNIA v.
BAYER CROP SCIENCE FKA AVENTIS
FRAUDULENT DELECTUS PERSONAE
ABSOLUTE SUPERSEDEAS OF RIGHT
WRIT DE EJECTIONE FIRMAE; WASTE
PETITION FOR ADVERSE CLAIMS WRITS
OF POSSESSION & EJECTMENT; FRAUD &
DECLARED DETRIMENT & NEGLECT &
FAILURE; DECEIT: NONUPLED DAMAGES
JOINT AND SEVERAL TRESPASSERS,
SURRENDER & EJECTMENT & TRUSTS
Civ. 2:91-cv-00768- USCA No. 09−17411,
in re: USCA No. 09-70047, USCA No 09-71150
USCFC No. 09-207 L
FILED UNDER THE GREAT SEAL
INTERVENTION OF RIGHT, VOID & VACATE
ABSOLUTE ORDER FOR INSPECTION
PETITION FOR EMERGENCY REVIEW
ORDER FOR REINSTATMENT OF CLAIMS
ORDER FOR CONSOLIDATION OF COURTS
CLOSE AND HOLD OF THE MORMAER –
WRONGFUL TAKING, FALSE PRETENSES, &c.
ABSENCE OF DELECTUS PERSONAE, QUI TAM
INTERVENTION IN CAMERA STELLATA, TRUSTS
AND ILLEGAL COMBINATIONS, DEMAND FOR
SECURITY AND COLLATERAL. CLAYTON ACT
MR. T.W. ARMAN Annuit Coeptis; persona Insidiae;
Qui tam; in camera stellata: audacibus annue coeptis;
APPLICATION OF THE MONROE DOCTRINE
WITH VERIFICATION BY AFFIDAVIT, DANGER
TO OUR PEACE AND SAFETY,
FRAUD UPON THE COURT;
AUTHORITIES OF JUSTICES JAY, BRANDEIS,
TANEY, MENDOZA, BRANNON, & MARSHALL
GIVE US OUR LIBERTY! EVACUATE.
APEX LAW ACTION, REMISSION, REVERSION,
DETINUE SUR BAILMENT
LIEN & FORECLOSURE ON PIRACY
CONSPIRACY; EVIL UPON THE PUBLIC TRUST; APEX LAW AGGRAVATED
LARCENY OF MINING COMPANY SECURITY & COLLATERAL LR10-20762
INNOCENT PRISONERS OF THE EPA - DOJ SINCE 1983
FREE MR. T.W. ARMAN & IRON MOUNTAIN MINES, INC.
Administrative - EPA Order 3120.1b Scientific misconduct, fabrication or knowing falsification of
data, research procedures, or data analysis is an offense which can result in immediate removal/ Suspension
and Debarment / Civil Sanctions / Fines / Local AUSA Must Decide If Fraud Meets Criminal
Prosecution Threshold / Culpability / Harm
Laboratory Fraud, Title 18 United States Criminal Code; Is It Criminal or Civil?
Fraud - 18 USC 1341 - 1343 , PROCEDURAL FRAUD, MEASUREMENT FRAUD
False Statements - 18 USC 1001
Conspiracy - 18 USC 371
Concealment of a felony - 18 USC 4 (misprision)
False Claims - 18 USC 287
Obstruction of Justice - 18 USC 1505
Penalties up to 20 years imprisonment for destroying, concealing or falsifying records with intent to
obstruct or impede a legal investigation
"Government is not reason; it is not eloquence; it is force. Like fire; it is a dangerous servant and a
fearful master." - George Washington
INTERVENTION OF RIGHT, REINSTATEMENT AND CONSOLIDATION
We consider a question that has split the federal courts: May a non-settling PRP intervene in litigation
to oppose a consent decree incorporating a settlement that, if approved, would bar contribution from
the settling PRP? We join the Eighth and Tenth Circuits in holding that the answer is “yes.”
in looking at the substance of the matter, they can see that it "is a clear, unmistakable infringement
of rights secured by the fundamental law." Booth v. Illinois , 184 U.S. 425 , 429 .
ABSENCE OF DELECTUS PERSONAE
I have received copies by fax of motions and orders from your court and most recent correspondence
from John Hutchens such as the following. Your court is a manifest injustice in error coram vobis.
TO THE CLERK OF THE COURT MR. HARRY VINE AND JUDGE JOHN MENDEZ
ERROR AND MISTAKE OF IDENTITY, FATAL DEFECT OF SERVICE, FRAUD JUDGE
Dear Mr. Harry Vine,
I received an envelope at P.O. box 182, Canyon, Ca. 94516, but apparently addressed to Mr. T.W.
Arman. As you know, Mr. Arman has been the subject of litigation in your Court since 1991, so you
should be able to address correspondence to him without my assistance.
As this is not the first time I have informed you of this matter, I assume no responsibility for your
failure to effect service upon Mr. T.W. Arman in these matters.
That said, I would like to take this opportunity to inform you of some other corrections that need to
be made to your court that you should be aware of.
First, there appears to be some confusion in your court concerning ARMAN. Your court continues to
oppress Mr. T.W. Arman regarding certain mine drainage at Iron Mountain Mine, which is actually
the result of the actions of ARMAN, “archaeal Richmond Mine acidophilic nanoorganisms”, so
named by Dr. Jillian Banfield of the University of California at Berkeley, and if you would have addressed
your summary judgment to ARMAN at this address, would probably have been correct.
As the curator for the College of the Hummingbird and the Hummingbird Institute, and at the behest
of Mr. T.W. Arman, the Arman Mines Institute, the Arman Mines Ministry of Natural Resources, the
Arman Mines Hazard and Remediation Directorate and Disaster Assistance Directorate, it is my duty
as resident expert to convey to you the facts concerning allegations of ‘hazardous’ substances.
Since there are no "hazardous" materials at Iron Mountain Mines we wish you would stop demonizing,
libeling and slandering the good name of Iron Mountain Mine and Mr. T.W. Arman, as these damages
continue to mount against the United States of America State of California and your court.
Furthermore, since Mr. T.W. Arman has been trying for years to supply his minerals to farmers, gardeners,
landscapers, horticulturalists, and others who work in agricultural enterprises that provide our
food and sustain our environment, and it is well documented that minerals are necessary, for instance:
“Minerals in the soil control the metabolism of plants, animals and man.
All of life will be either healthy or unhealthy according to the fertility of the soil.” This was a
statement made by Dr Alexus Carrel, Nobel Prize Winner, in 1912. Almost a hundred years
later, agriculturist and writer, Graham Harvey, wrote in The Daily Telegraph , 18 February
2006: “Britain's once fertile soil has been systematically stripped of its crucial minerals by industrial
farming, leaving our fruit and vegetables tasteless and a nation in chronic ill health.”
William Albrecht (1896-1974 Illinois), referred to as the Father of Soil Research for his pioneering
studies of the effects of infertile soil on plants and animals, warned in 1930s that if the
land was not remineralised, there would be a massive increase in human degenerative diseases.
Therefore, we are of the opinion that your actions are an act of aggression and war crime of attrition
on us. Please void and vacate, grant us intervention, remission, reversion, & detinue sur bailment.
In fact our minerals were naturally distributed by the cycles of the seasons and the annual flooding
that for half a million years fertilized the great valleys of California. In 1943 the United States of
America State of California constructed the Shasta dam forever destroying this process, at the same
time killing all the native anadramous (invasive and migratory species) such as Chinook Salmon of
the McCloud river that were propagated around the world by the United States Baird Hatchery.
Now this court has apparently tried to blame Mr. T.W. Arman for these fisheries demise.
We really must take exception to the federal government perpetration such a heinous deception.
That you and your court aid and abet the perpetrators of this villainy is despotic and alarming.
"There is no crueler tyranny than that which is exercised under cover of law, and with the colors
of justice" - U.S. v. Jannotti, 673 F.2d 578, 614 (3d Cir. 1982)
TITLE 15 > CHAPTER 1 > § 1
§ 1. Trusts, etc., in restraint of trade illegal; penalty
Every contract, combination in the form of trust or otherwise, or conspiracy, in restraint of trade or
commerce among the several States, or with foreign nations, is declared to be illegal. Every person
who shall make any contract or engage in any combination or conspiracy hereby declared to be illegal
shall be deemed guilty of a felony, and, on conviction thereof, shall be punished by fine not exceeding
$100,000,000 if a corporation, or, if any other person, $1,000,000, or by imprisonment not
exceeding 10 years, or by both said punishments, in the discretion of the court.
TITLE 15 > CHAPTER 1 > § 2
§ 2. Monopolizing trade a felony; penalty
Every person who shall monopolize, or attempt to monopolize, or combine or conspire with any
other person or persons, to monopolize any part of the trade or commerce among the several States,
or with foreign nations, shall be deemed guilty of a felony, and, on conviction thereof, shall be punished
by fine not exceeding $100,000,000 if a corporation, or, if any other person, $1,000,000, or by
imprisonment not exceeding 10 years, or by both said punishments, in the discretion of the court.
TITLE 15 > CHAPTER 1 > § 3
§ 3. Trusts in Territories or District of Columbia illegal; combination a felony
(a) Every contract, combination in form of trust or otherwise, or conspiracy, in restraint of trade or
commerce in any Territory of the United States or of the District of Columbia, or in restraint of trade
TITLE 15 > CHAPTER 1 > § 1
§ 1. Trusts, etc., in restraint of trade illegal; penalty
Every contract, combination in the form of trust or otherwise, or conspiracy, in restraint of trade or
commerce among the several States, or with foreign nations, is declared to be illegal. Every person
who shall make any contract or engage in any combination or conspiracy hereby declared to be illegal
shall be deemed guilty of a felony, and, on conviction thereof, shall be punished by fine not exceeding
$100,000,000 if a corporation, or, if any other person, $1,000,000, or by imprisonment not
exceeding 10 years, or by both said punishments, in the discretion of the court.
TITLE 15 > CHAPTER 1 > § 2
§ 2. Monopolizing trade a felony; penalty
Every person who shall monopolize, or attempt to monopolize, or combine or conspire with any
other person or persons, to monopolize any part of the trade or commerce among the several States,
or with foreign nations, shall be deemed guilty of a felony, and, on conviction thereof, shall be punished
by fine not exceeding $100,000,000 if a corporation, or, if any other person, $1,000,000, or by
imprisonment not exceeding 10 years, or by both said punishments, in the discretion of the court.
TITLE 15 > CHAPTER 1 > § 3
§ 3. Trusts in Territories or District of Columbia illegal; combination a felony
(a) Every contract, combination in form of trust or otherwise, or conspiracy, in restraint of trade or
commerce in any Territory of the United States or of the District of Columbia, or in restraint of trade
TITLE 15 > CHAPTER 1 > § 1
§ 1. Trusts, etc., in restraint of trade illegal; penalty
Every contract, combination in the form of trust or otherwise, or conspiracy, in restraint of trade or
commerce among the several States, or with foreign nations, is declared to be illegal. Every person
who shall make any contract or engage in any combination or conspiracy hereby declared to be illegal
shall be deemed guilty of a felony, and, on conviction thereof, shall be punished by fine not exceeding
$100,000,000 if a corporation, or, if any other person, $1,000,000, or by imprisonment not
exceeding 10 years, or by both said punishments, in the discretion of the court.
TITLE 15 > CHAPTER 1 > § 2
§ 2. Monopolizing trade a felony; penalty
Every person who shall monopolize, or attempt to monopolize, or combine or conspire with any
other person or persons, to monopolize any part of the trade or commerce among the several States,
or with foreign nations, shall be deemed guilty of a felony, and, on conviction thereof, shall be punished
by fine not exceeding $100,000,000 if a corporation, or, if any other person, $1,000,000, or by
imprisonment not exceeding 10 years, or by both said punishments, in the discretion of the court.
TITLE 15 > CHAPTER 1 > § 3
§ 3. Trusts in Territories or District of Columbia illegal; combination a felony
(a) Every contract, combination in form of trust or otherwise, or conspiracy, in restraint of trade or
commerce in any Territory of the United States or of the District of Columbia, or in restraint of trade
TITLE 15 > CHAPTER 1 > § 1
§ 1. Trusts, etc., in restraint of trade illegal; penalty
Every contract, combination in the form of trust or otherwise, or conspiracy, in restraint of trade or
commerce among the several States, or with foreign nations, is declared to be illegal. Every person
who shall make any contract or engage in any combination or conspiracy hereby declared to be illegal
shall be deemed guilty of a felony, and, on conviction thereof, shall be punished by fine not exceeding
$100,000,000 if a corporation, or, if any other person, $1,000,000, or by imprisonment not
exceeding 10 years, or by both said punishments, in the discretion of the court.
TITLE 15 > CHAPTER 1 > § 2
§ 2. Monopolizing trade a felony; penalty
Every person who shall monopolize, or attempt to monopolize, or combine or conspire with any
other person or persons, to monopolize any part of the trade or commerce among the several States,
or with foreign nations, shall be deemed guilty of a felony, and, on conviction thereof, shall be punished
by fine not exceeding $100,000,000 if a corporation, or, if any other person, $1,000,000, or by
imprisonment not exceeding 10 years, or by both said punishments, in the discretion of the court.
TITLE 15 > CHAPTER 1 > § 3
§ 3. Trusts in Territories or District of Columbia illegal; combination a felony
(a) Every contract, combination in form of trust or otherwise, or conspiracy, in restraint of trade or
commerce in any Territory of the United States or of the District of Columbia, or in restraint of trade
such manufacturing technologies to United States industries. (c) Reports The Council, through the
Director of the National Nanotechnology Coordination Office, shall submit to the Senate Committee
on Commerce, Science, and Transportation and the House of Representatives Committee on Science—
(1) within 6 months after December 3, 2003, a report identifying which agency shall be the
lead agency and which other agencies, if any, will be responsible for establishing the Centers described
in this section; and (2) within 18 months after December 3, 2003, a report describing how the
Centers described in this section have been established.
TITLE 15 > CHAPTER 1 > § 21
§ 21. Enforcement provisions
(a) Commission, Board, or Secretary authorized to enforce compliance Authority to enforce compliance
with sections 13 , 14 , 18 , and 19 of this title by the persons respectively subject thereto is
vested in the Surface Transportation Board where applicable to common carriers subject to jurisdiction
under subtitle IV of title 49 ; in the Federal Communications Commission where applicable to
common carriers engaged in wire or radio communication or radio transmission of energy; in the
Secretary of Transportation where applicable to air carriers and foreign air carriers subject to part A
of subtitle VII of title 49 ; in the Board of Governors of the Federal Reserve System where applicable
to banks, banking associations, and trust companies; and in the Federal Trade Commission where
applicable to all other character of commerce to be exercised as follows: (b) Issuance of complaints
for violations; hearing; intervention; filing of testimony; report; cease and desist orders; reopening
and alteration of reports or orders Whenever the Commission, Board, or Secretary vested with jurisdiction
thereof shall have reason to believe that any person is violating or has violated any of the
provisions of sections 13 , 14 , 18 , and 19 of this title, it shall issue and serve upon such person and
the Attorney General a complaint stating its charges in that respect, and containing a notice of a hearing
upon a day and at a place therein fixed at least thirty days after the service of said complaint. The
person so complained of shall have the right to appear at the place and time so fixed and show cause
why an order should not be entered by the Commission, Board, or Secretary requiring such person to
cease and desist from the violation of the law so charged in said complaint. The Attorney General
shall have the right to intervene and appear in said proceeding and any person may make application,
and upon good cause shown may be allowed by the Commission, Board, or Secretary, to intervene
and appear in said proceeding by counsel or in person. The testimony in any such proceeding shall be
reduced to writing and filed in the office of the Commission, Board, or Secretary. If upon such hearing
the Commission, Board, or Secretary, as the case may be, shall be of the opinion that any of the
provisions of said sections have been or are being violated, it shall make a report in writing, in which
it shall state its findings as to the facts, and shall issue and cause to be served on such person an order
requiring such person to cease and desist from such violations, and divest itself of the stock, or other
share capital, or assets, held or rid itself of the directors chosen contrary to the provisions of sections
18 and 19 of this title, if any there be, in the manner and within the time fixed by said order. Until the
expiration of the time allowed for filing a petition for review, if no such petition has been duly filed
within such time, or, if a petition for review has been filed within such time then until the record in
the proceeding has been filed in a court of appeals of the United States, as hereinafter provided, the
Commission, Board, or Secretary may at any time, upon such notice and in such manner as it shall
deem proper, modify or set aside, in whole or in part, any report or any order made or issued by it
under this section. After the expiration of the time allowed for filing a petition for review, if no such
petition has been duly filed within such time, the Commission, Board, or Secretary may at any time,
after notice and opportunity for hearing, reopen and alter, modify, or set aside, in whole or in part,
any report or order made or issued by it under this section, whenever in the opinion of the Commission,
Board, or Secretary conditions of fact or of law have so changed as to require such action or if
the public interest shall so require: Provided, however, That the said person may, within sixty days
after service upon him or it of said report or order entered after such a reopening, obtain a review
thereof in the appropriate court of appeals of the United States, in the manner provided in subsection
(c) of this section. (c) Review of orders; jurisdiction; filing of petition and record of proceeding; conclusiveness
of findings; additional evidence; modification of findings; finality of judgment and decree
Any person required by such order of the commission, board, or Secretary to cease and desist
from any such violation may obtain a review of such order in the court of appeals of the United
States for any circuit within which such violation occurred or within which such person resides or
carries on business, by filing in the court, within sixty days after the date of the service of such order,
a written petition praying that the order of the commission, board, or Secretary be set aside. A copy
of such petition shall be forthwith transmitted by the clerk of the court to the commission, board, or
Secretary, and thereupon the commission, board, or Secretary shall file in the court the record in the
proceeding, as provided in section 2112 of title 28 . Upon such filing of the petition the court shall
have jurisdiction of the proceeding and of the question determined therein concurrently with the
commission, board, or Secretary until the filing of the record, and shall have power to make and enter
a decree affirming, modifying, or setting aside the order of the commission, board, or Secretary, and
enforcing the same to the extent that such order is affirmed, and to issue such writs as are ancillary to
its jurisdiction or are necessary in its judgment to prevent injury to the public or to competitors
pendente lite. The findings of the commission, board, or Secretary as to the facts, if supported by
substantial evidence, shall be conclusive. To the extent that the order of the commission, board, or
Secretary is affirmed, the court shall issue its own order commanding obedience to the terms of such
order of the commission, board, or Secretary. If either party shall apply to the court for leave to adduce
additional evidence, and shall show to the satisfaction of the court that such additional evidence
is material and that there were reasonable grounds for the failure to adduce such evidence in the proceeding
before the commission, board, or Secretary, the court may order such additional evidence to
be taken before the commission, board, or Secretary, and to be adduced upon the hearing in such
manner and upon such terms and conditions as to the court may seem proper. The commission,
board, or Secretary may modify its findings as to the facts, or make new findings, by reason of the
additional evidence so taken, and shall file such modified or new findings, which if supported by
substantial evidence, shall be conclusive, and its recommendation, if any, for the modification or setting
aside of its original order, with the return of such additional evidence. The judgment and decree
of the court shall be final, except that the same shall be subject to review by the Supreme Court upon
certiorari, as provided in section 1254 of title 28 . (d) Exclusive jurisdiction of Court of Appeals
Upon the filing of the record with its jurisdiction of the court of appeals to affirm, enforce, modify, or
set aside orders of the commission, board, or Secretary shall be exclusive. (e) Liability under antitrust
laws No order of the commission, board, or Secretary or judgment of the court to enforce the same
shall in anywise relieve or absolve any person from any liability under the antitrust laws. (f) Service
of complaints, orders and other processes Complaints, orders, and other processes of the commission,
board, or Secretary under this section may be serviced by anyone duly authorized by the commission,
board, or Secretary, either (1) by delivering a copy thereof to the person to be served, or to a member
of the partnership to be served, or to the president, secretary, or other executive officer or a director
of the corporation to be served; or (2) by leaving a copy thereof at the residence or the principal office
or place of business of such person; or (3) by mailing by registered or certified mail a copy
thereof addressed to such person at his or its residence or principal office or place of business. The
verified return by the person so serving said complaint, order, or other process setting forth the manner
of said service shall be proof of the same, and the return post office receipt for said complaint,
order, or other process mailed by registered or certified mail as aforesaid shall be proof of the service
of the same. (g) Finality of orders generally Any order issued under subsection (b) of this section
shall become final— (1) upon the expiration of the time allowed for filing a petition for review, if no
such petition has been duly filed within such time; but the commission, board, or Secretary may
thereafter modify or set aside its order to the extent provided in the last sentence of subsection (b) of
this section; or (2) upon the expiration of the time allowed for filing a petition for certiorari, if the
order of the commission, board, or Secretary has been affirmed, or the petition for review has been
dismissed by the court of appeals, and no petition for certiorari has been duly filed; or (3) upon the
denial of a petition for certiorari, if the order of the commission, board, or Secretary has been affirmed
or the petition for review has been dismissed by the court of appeals; or (4) upon the expiration
of thirty days from the date of issuance of the mandate of the Supreme Court, if such Court directs
that the order of the commission, board, or Secretary be affirmed or the petition for review be
dismissed. (h) Finality of orders modified by Supreme Court If the Supreme Court directs that the
order of the commission, board, or Secretary be modified or set aside, the order of the commission,
board, or Secretary rendered in accordance with the mandate of the Supreme Court shall become final
upon the expiration of thirty days from the time it was rendered, unless within such thirty days
either party has instituted proceedings to have such order corrected to accord with the mandate, in
which event the order of the commission, board, or Secretary shall become final when so corrected.
(i) Finality of orders modified by Court of Appeals If the order of the commission, board, or Secre
tary is modified or set aside by the court of appeals, and if (1) the time allowed for filing a petition
for certiorari has expired and no such petition has been duly filed, or (2) the petition for certiorari has
been denied, or (3) the decision of the court has been affirmed by the Supreme Court then the order
of the commission, board, or Secretary rendered in accordance with the mandate of the court of appeals
shall become final on the expiration of thirty days from the time such order of the commission,
board, or Secretary was rendered, unless within such thirty days either party has instituted proceedings
to have such order corrected so that it will accord with the mandate, in which event the order of
the commission, board, or Secretary shall become final when so corrected. (j) Finality of orders issued
on rehearing ordered by Court of Appeals or Supreme Court If the Supreme Court orders a rehearing;
or if the case is remanded by the court of appeals to the commission, board, or Secretary for
a rehearing, and if (1) the time allowed for filing a petition for certiorari has expired, and no such petition
has been duly filed, or (2) the petition for certiorari has been denied, or (3) the decision of the
court has been affirmed by the Supreme Court, then the order of the commission, board, or Secretary
rendered upon such rehearing shall become final in the same manner as though no prior order of the
commission, board, or Secretary had been rendered. (k) “Mandate” defined As used in this section
the term “mandate”, in case a mandate has been recalled prior to the expiration of thirty days from
the date of issuance thereof, means the final mandate. (l) Penalties Any person who violates any order
issued by the commission, board, or Secretary under subsection (b) of this section after such order
has become final, and while such order is in effect, shall forfeit and pay to the United States a
civil penalty of not more than $5,000 for each violation, which shall accrue to the United States and
may be recovered in a civil action brought by the United States. Each separate violation of any such
order shall be a separate offense, except that in the case of a violation through continuing failure or
neglect to obey a final order of the commission, board, or Secretary each day of continuance of such
failure or neglect shall be deemed a separate offense.
STRIKE THE CONSENT DECREE, VOID AND VACATE, REMISSION, REVERSION,
DETINUE SUR BAILMENT. QUANTUM DAMNIFICATUS REMEDY DEMANDED
CONDEMNATION OF THE CHAPPIE-SHASTA OHVA, ON MERITS - ADVERSE CLAIMS
All premises having been duly considered, Relator now moves this honorable Court, on behalf of the
United States of America State of California as private attorneys general and Inspector General:
QUANTUM DAMNIFICATUS QUARE IMPEDIT
The name of a writ directed by the king to the sheriff, by which he is required to command certain
persons by name to permit him, the king, to present a fit person to a certain church, which is void, and
which belongs to his gift, and of which the said defendants hinder the king, as it is said, and unless,
etc. then to summon, etc. the defendants so that they be and appear, etc. GRANT US OUR PEACE.
Congress has the right to make any law that is ‘necessary and proper’ for the execution of its enumerated
powers (Art. I, Sec. 8, Cl. 18). LIQUIDATE AIG, CLAWBACK TARP, OPEN THE MINT.
Commission of the Hazard And Remediation Directorate::_______________________________
/s/ T.W. Arman, owner of Iron Mountain and Arman Mines Ministry Arboretum, Gales & Stannaries
I, T.W. Arman, hereby state that the same is true of my own knowledge, except as to matters which are
herein stated on my own information or belief, and as to those matters, I believe them to be true.
Date:_July 27, 2010_ Signature:_________________________________
Verified affidavit: /s/ T.W. Arman, Mayor of the Armanshire, Prime Minister of Natural Resources
Grantee, Patentee, Locator, Senior Directorate of the Ministry of Mining & Principles of Pigments.
Owner of ‘ARMAN’, “archaeal Richmond Mine acidophilic nanoorganisms”, SENIOR DIRECTOR
OF THE ARMAN MINES MINISTRY OF NATURE ARBORETUM, GALES, AND STANNARIES
PRIVATE INSPECTOR GENERAL OF THE IRON MOUNTAIN MINE SUPERFUND SITE
July 17, 2008 -- Miniscule triangular and hexagonal plates of gold less than 20 nanometers thin and identical to those manufactured by humans have been found occurring naturally in salty groundwaters of Western Australia.
The Aussie nano gold in the water gets as thin as six nanometers and previously escaped detection by electron microscopes, say Australian researchers. Nano gold is being developed for use in for drug delivery , optics, superconductors and catalysts, but until now, it was thought to be entirely manmade.
"It's very, very similar to the colloidal gold people have been growing in laboratories," said Robert Hough of the Mining and Exploration branch of Australian government's research agency, CSIRO . He is the lead author of a paper describing the nano gold in the July issue of Geology .
The gold nano particles had appeared as ghostly grey shapes in scanning electron microscope (SEM) images. By applying what's called "high-resolution secondary electron imaging in a field emission SEM," Hough and his team were able to look directly at the ultra thin gold particles.
"I am surprised," said Pablo Jadzinsky who uses nanogold in organic chemistry research at Stanford University.
Nano gold is currently a hot topic for research and development, Jadzinsky said, and getting hotter.
At the moment, labs make their own nano gold by dissolving larger pieces of gold and growing the nano crystals. But they have suffered from some of the same difficulties as the geologists looking for natural nano gold: being sure they know just what sort of nano gold particle they are dealing with.
Whether natural nano gold will be of any use to labs is unclear, said Jadzinsky, because it depends on how hard it would be to purify the salty ground waters and isolate just the sort of nano gold that is desired.
Geologists aren't worried about laboratory applications, however. Instead they are looking at how the nano gold could lead to large, extractable deposits of the precious metal.
"It has big implications for exploration," said Hough. "It's really a fundamental of how gold moves around."
And now that they know how to look for the nano gold, there is a way to look for signs of gold deposits anywhere there is salty groundwater, said Hough.
"Previously we didn't have the tools to look at (nano) gold directly," said Hough.
Now they know: Thars gold in them thar ground waters.
Chivalric orders are societies and fellowships of knights [ 1 ] that have been created by European monarchs in imitation of the military orders of the Crusades . After the crusades, the memory of these crusading military orders became idealised and romanticised, resulting in the late medieval notion of chivalry , and is reflected in the Arthurian romances of the time.
Modern historiography tends to take the fall of Acre in 1291 as the final end of the age of the crusades. But in contemporary understanding, many further crusades against the Turks were planned and partly executed throughout the 14th century and well into the 15th century. The late medieval chivalric orders thus very much understood themselves as reflecting an ongoing military effort against Islam, even though such an effort with the rise of the Ottoman Empire and the fall of Constantinople in the 1450s was without realistic hope of success. During the 15th century, orders of chivalry became more and more a mere courtly fashion and could be created ad-hoc , some of them purely honorific, consisting of nothing but the badge. These institutions in turn gave rise to the modern-day orders of merit .
The Most Ancient and Most Noble Order of the Thistle is an order of chivalry associated with Scotland . The current version of the Order was founded in 1687 by King James VII of Scotland (also known as James II of England ) who asserted that he was reviving an earlier Order. The Order consists of the Sovereign and sixteen Knights and Ladies, as well as certain "extra" knights (members of the British Royal Family and foreign monarchs). The Sovereign alone grants membership of the Order; he or she is not advised by the Government, as occurs with most other Orders.
Most British orders of chivalry cover the whole United Kingdom , but the three most exalted ones each pertain to one constituent country only. The Order of the Thistle, which pertains to Scotland, is the second-most senior in precedence. Its equivalent in England , The Most Noble Order of the Garter , is the oldest documented order of chivalry in the United Kingdom, dating to the middle fourteenth century. In 1783 an Irish equivalent, The Most Illustrious Order of St Patrick , was founded, but has now fallen dormant.
ames VII claimed that he was reviving an earlier Order, but this issue is marked by widely varying claims.
According to legend, Achaius, King of Scots (possibly coming to the aid of Óengus mac Fergusa , King of the Picts ), while engaged in battle at Athelstaneford with the Saxon King Aethelstan of East Anglia , saw in the heavens the cross of St Andrew . [ 2 ] After he won the battle, Achaius is said to have established the Order of the Thistle, dedicating it to the saint, in 786. [ 3 ] The tale is not credible, because the two individuals purported to have fought each other did not even live in the same century. [ 4 ] Another story states that Achaius founded the Order in 809 to commemorate an alliance with the Emperor Charlemagne . There is some credibility to this story given the fact that Charlemagne did employ Scottish bodyguards. [ 5 ] There is, in addition, a tradition that the order was instituted, or re-instituted, on the battlefield by Robert the Bruce at Bannockburn . [ 6 ]
The earliest claim now taken seriously by historians is that James III , who adopted the thistle as the royal plant badge and issued coins depicting thistles, [ 7 ] founded the Order during the fifteenth century. [ 8 ] Others state that James V , who had been admitted to the Order of the Golden Fleece in the Holy Roman Empire , the Order of St Michael in France , and the Order of the Garter in England, established the Order of the Thistle in 1540 because he was embarrassed that he had no honour to confer on foreign monarchs. [ citation needed ] He allegedly conferred membership of the "Order of the Burr or Thissil" on King Francis I of France . [ 9 ]
However there is no conclusive evidence for a fifteenth century order. Some Scottish order of chivalry probably existed during the sixteenth century, possibly founded by James V and called the Order of St. Andrew, but had lapsed by the end of that century. [ 10 ] [ 11 ]
James VII issued letters patent "reviving and restoring the Order of the Thistle to its full glory, lustre and magnificency" on 29 May 1687. [ 12 ] [ 13 ] Eight knights, out of a maximum of twelve, were appointed, but the King was deposed in 1688. [ 14 ] His successors, the joint monarchs William and Mary , did not make any further appointments to the Order, which consequently fell into desuetude . [ citation needed ] In 1703, however, Anne once again revived the Order of the Thistle, which survives to this day. [ 15 ]
ames VII claimed that he was reviving an earlier Order, but this issue is marked by widely varying claims.
According to legend, Achaius, King of Scots (possibly coming to the aid of Óengus mac Fergusa , King of the Picts ), while engaged in battle at Athelstaneford with the Saxon King Aethelstan of East Anglia , saw in the heavens the cross of St Andrew . [ 2 ] After he won the battle, Achaius is said to have established the Order of the Thistle, dedicating it to the saint, in 786. [ 3 ] The tale is not credible, because the two individuals purported to have fought each other did not even live in the same century. [ 4 ] Another story states that Achaius founded the Order in 809 to commemorate an alliance with the Emperor Charlemagne . There is some credibility to this story given the fact that Charlemagne did employ Scottish bodyguards. [ 5 ] There is, in addition, a tradition that the order was instituted, or re-instituted, on the battlefield by Robert the Bruce at Bannockburn . [ 6 ]
The earliest claim now taken seriously by historians is that James III , who adopted the thistle as the royal plant badge and issued coins depicting thistles, [ 7 ] founded the Order during the fifteenth century. [ 8 ] Others state that James V , who had been admitted to the Order of the Golden Fleece in the Holy Roman Empire , the Order of St Michael in France , and the Order of the Garter in England, established the Order of the Thistle in 1540 because he was embarrassed that he had no honour to confer on foreign monarchs. [ citation needed ] He allegedly conferred membership of the "Order of the Burr or Thissil" on King Francis I of France . [ 9 ]
However there is no conclusive evidence for a fifteenth century order. Some Scottish order of chivalry probably existed during the sixteenth century, possibly founded by James V and called the Order of St. Andrew, but had lapsed by the end of that century. [ 10 ] [ 11 ]
James VII issued letters patent "reviving and restoring the Order of the Thistle to its full glory, lustre and magnificency" on 29 May 1687. [ 12 ] [ 13 ] Eight knights, out of a maximum of twelve, were appointed, but the King was deposed in 1688. [ 14 ] His successors, the joint monarchs William and Mary , did not make any further appointments to the Order, which consequently fell into desuetude . [ citation needed ] In 1703, however, Anne once again revived the Order of the Thistle, which survives to this day. [ 15 ]
For the Order's great occasions, such as its annual service each June or July, as well for coronations , the Knights and Ladies wear an elaborate costume:
The mantle is a green robe worn over their suits or military uniforms. The mantle is lined with white taffeta; it is tied with green and gold tassels. On the left shoulder of the mantle, the star of the Order (see below) is depicted. [ 34 ]
The hat is made of black velvet and is plumed with white feathers with a black egret or heron's top in the middle. [ 34 ]
The collar is made of gold and depicts thistles and sprigs of rue . It is worn over the mantle. [ 34 ]
The St Andrew , also called the badge-appendant , is worn suspended from the collar. It comprises a gold enamelled depiction of St Andrew, wearing a green gown and purple coat, holding a white saltire . [ 34 ] Gold rays of a glory are shown emanating from St Andrew's head. [ 35 ]
Aside from these special occasions, however, much simpler insignia are used whenever a member of the Order attends an event at which decorations are worn.
The star of the Order consists of a silver St Andrew's saltire, with clusters of rays between the arms thereof. In the centre is depicted a green circle bearing the motto of the Order in gold majuscules ; within the circle, there is depicted a thistle on a gold field. It is worn pinned to the left breast. [ 36 ] (Since the Order of the Thistle is the second-most senior chivalric order in the UK, a member will wear its star above that of other orders to which he or she belongs, except that of the Order of the Garter; up to four orders' stars may be worn.) [ 37 ]
The broad riband is a dark green sash worn across the body, from the left shoulder to the right hip. [ 38 ]
At the right hip of the Riband, the badge of the Order is attached. The badge depicts St Andrew in the same form as the badge-appendant surrounded by the Order's motto. [ 39 ]
However, on certain collar days designated by the Sovereign, [ 40 ] members attending formal events may wear the Order's collar over their military uniform, formal wear, or other costume. They will then substitute the broad riband of another order to which they belong (if any), since the Order of the Thistle is represented by the collar. [ 41 ]
Upon the death of a Knight or Lady, the insignia must be returned to the Central Chancery of the Orders of Knighthood. The badge and star are returned personally to the Sovereign by the nearest relative of the deceased. [ 42 ]
Officers of the Order also wear green robes. [ 43 ] The Gentleman Usher of the Green Rod also bears, as the title of his office suggests, a green rod. [ 44 ]
When James VII created the modern Order in 1687, he directed that the Abbey Church at the Palace of Holyroodhouse be converted to a Chapel for the Order of the Thistle, perhaps copying the idea from the Order of the Garter (whose chapel is located in Windsor Castle ). James VII, however, was deposed by 1688; the Chapel, meanwhile, had been destroyed during riots. The Order did not have a Chapel until 1911, when one was added onto St Giles High Kirk in Edinburgh . [ 45 ] Each year, the Sovereign resides at the Palace of Holyroodhouse for a week in June or July; during the visit, a service for the Order is held. Any new Knights or Ladies are installed at annual services. [ 8 ]
Each member of the Order, including the Sovereign, is allotted a stall in the Chapel, above which his or her heraldic devices are displayed. Perched on the pinnacle of a knight's stall is his helm, decorated with mantling and topped by his crest. If he is a peer , the coronet appropriate to his rank is placed beneath the helm. [ 46 ] Under the laws of heraldry, women, other than monarchs, do not normally bear helms nor crests; [ 47 ] instead, the coronet alone is used (if she is a peeress or princess). [ 48 ] Lady Marion Fraser had a helm and crest included when she was granted arms; these are displayed above her stall in the same manner as for knights. [ 49 ] Unlike other British Orders, the armorial banners of Knights and Ladies of the Thistle are not hung in the chapel, but instead in an adjacent part of St Giles High Kirk. [ 50 ] The Thistle Chapel does, however, bear the arms of members living and deceased on stall plates. These enamelled plates are affixed to the back of the stall and display its occupant's name, arms, and date of admission into the Order. [ 51 ]
Upon the death of a Knight, helm, mantling, crest (or coronet or crown) and sword are taken down. The stall plates, however, are not removed; rather, they remain permanently affixed to the back of the stall, so that the stalls of the chapel are festooned with a colourful record of the Order's Knights (and now Ladies) since 1911. [ 52 ] The entryway just outside the doors of the chapel has the names of the Order's Knights from before 1911 inscribed into the walls giving a complete record of the members of the order.
Knights and Ladies of the Thistle are assigned positions in the order of precedence , ranking above all others of knightly rank except the Order of the Garter, and above baronets. Wives, sons, daughters and daughters-in-law of Knights of the Thistle also feature on the order of precedence; relatives of Ladies of the Thistle, however, are not assigned any special precedence. (Generally, individuals can derive precedence from their fathers or husbands, but not from their mothers or wives.) [ 53 ]
Knights of the Thistle prefix "Sir", and Ladies prefix "Lady", to their forenames. Wives of Knights may prefix "Lady" to their surnames, but no equivalent privilege exists for husbands of Ladies. Such forms are not used by peers and princes, except when the names of the former are written out in their fullest forms. [ 54 ]
Knights and Ladies use the post-nominal letters "KT" and "LT" respectively. [ 8 ] When an individual is entitled to use multiple post-nominal letters, "KT" or "LT" appears before all others, except "Bt" or "Btss" ( Baronet or Baronetess ), "VC" ( Victoria Cross ), "GC" ( George Cross ) and "KG" or "LG" (Knight or Lady of the Garter). [ 37 ]
Knights and Ladies may encircle their arms with the circlet (a green circle bearing the Order's motto) and the collar of the Order; the former is shown either outside or on top of the latter. The badge is depicted suspended from the collar. [ 55 ] The Royal Arms depict the collar and motto of the Order of the Thistle only in Scotland; they show the circlet and motto of the Garter in England, Wales and Northern Ireland. [ 56 ]
Knights and Ladies are also entitled to receive heraldic supporters . This high privilege is only shared by members of the Royal Family, peers, Knights and Ladies of the Garter, and Knights and Dames Grand Cross of the junior orders of chivalry. [ 57 ]
In 1997, golfing legend Jack Nicklaus opened the Old Works
Golf Course, which he designed. Praised by Golf Journal as “world class . . . with 18 fascinating holes,” the Old Works
course was built over the cleaned up Anaconda Company
Smelter site in Montana.
Building a world class golf course over a shut-down copper
mine was the result of a successful partnership between
Nicklaus, EPA, the State of Montana, the Anaconda community,
the local government, and the Atlantic Richfield Company
(ARCO), the potentially responsible party.
EPA entered into a consent decree with ARCO to implement
the cleanup remedy. Concerned citizens of Anaconda used a
TAG to review EPA studies and relay their findings to the rest
of the community. EPA, the State, the community, and ARCO
worked together to develop a cost-effective re-vegetation plan
to prevent contamination from spreading. EPA also helped
orchestrate an agreement that transferred ownership of the
golf course from ARCO to the County government, including
a condition that required revenues be used for the continued
economic growth of the Anaconda area.
At Anaconda, the Superfund reforms came together, not only
to clean up the site, but to transform it for the community’s
economic betterment. When the smelter shut down, the community
was worried that Anaconda would turn into a ghost
town. Now tourists come from miles around to play golf – and
many come back when they discover that the area also offers
excellent skiing, fishing, hiking, and hunting.
Letters patent (pl. letters patent) are so named from the Latin verb pateo , to lie open, exposed, accessible, [ 1 ] being called in full letterae patentes . They are a type of legal instrument in the form of an open letter issued by a monarch or government , granting an office, right, monopoly , title, or status to a person or to some entity such as a corporation . They are thus a form of open or public proclamation. The opposite of letters patent are letters close ( Latin : litterae clausae ), which are personal in nature and sealed so that only the recipient can read their contents. Letters patent can be used for the creation of corporations or government offices, or for the granting of city status or a coats of arms . A particular form of letters patent has evolved into the modern patent granting exclusive rights in an invention .
In the United Kingdom and countries formerly under that country's influence, letters patent are issued under the prerogative powers of the head of state (" royal prerogative "). They constitute a rare, if significant, form of legislation without the consent of the parliament . Letters patent may also be used to grant assent to legislation.
“A patent to land, issued by the United States under authority of law, is the highest evidence of title, something upon which its holder can rely for peace and security in his possession. It is conclusive evidence of title against the United States and all the world. ..” 2 The American Law of Mining, § 1.29 at 357. Nichols v. Rysavy, (S.D. 1985) 610 F. Supp. 1245.
"Congress has the sole power to declare the dignity and effect of titles emanating from the United States … and [Congress] [D]eclares the patent the superior and conclusive evidence of legal title." Langdon v. Sherwood, 124 U.S. 74 (1888).
The “general rule” at least is, “that while property may be regulated to a certain extent, if regulation goes too far it will be recognized as a taking.” [Pennsylvania Coal Co. v. Mahon , 260 U.S. 393, 415, 67 L. Ed. 322, 43 S. Ct. 158 (1922).]
The Court stated, “Takings jurisprudence balances the competing goals of compensating landowners on whom a significant burden of regulation falls and avoiding prohibitory costs to needed government regulation. Citing Dolan v. City of Tigard , 512 U.S. 374, 384 (1994), “TheTakings Clause assures that the government may not force 'some people alone to bear public burdens which, in all fairness and justice, should be borne by the public as a whole.'"
In the history of the United States , no Land Patent has ever lost an appellate review in the courts. In Summa Corp. v. California ex rel. State Lands Comm'n 466 US 198, the United States Supreme Court ruled that the Land Patent would always win over any other form of title. In that case, the land in question was tidewater land and California 's claim was based on California 's constitutional right to all tidewater lands. The patent stood supreme even against California 's Constitution, to wit:
[The patent] “[P]assing whatever interest the United States has in the premises and thereby settling any question of sovereign ownership….” Pueblo of Santa Ana v. Baca (CA10 NM) 844 F2d 708; Whaley v. Wotring ( Fla App D1) 225 So 2d 177; Dugas v. Powell, 228 La 748, 84 So 2d 177. [quote at 28 Am. Jur. 2D, F. 2 § 49].
With the title passes away all authority or control of the executive department over the land and over the title which it has conveyed. Moore v. Robbins, 96 U.S. 530, 533, 24 L. Ed. 848.
There is no license from the United States or the state of California to miners to enter upon private lands of individuals for the purpose or extracting the minerals in the soil. (Biddle Boggs v Merced Min. Co.) 14 Cal. 279.)
The United States , like any other PRIVATE PROPRIETOR, with the exception of exemption from state taxation, having no municipal sovereignty or right of eminent domain within the limits of the state-cannot, in derogation of the rights of the local sovereign to govern the relations of the citizens of the state, and to prescribe the rules of property, and its mode of disposition, and its tenure, enter upon, or authorize an entry upon, private property, for the purpose of extracting minerals. The United States , like any other proprietor, can only exercise their rights to the mineral in private property, in subordination to such rules and regulations as the local sovereign may prescribe. Until such rules and regulations are established, the landed proprietor may successfully resist, in the courts of the state, all attempts at invasion of his property, whether by the direct action of the United States or by virtue of any pretended license under their authority. (Biddle Boggs v Merced Min. Co,,) 14 Cal. 279.)
“A valid and subsisting location of mineral lands, made and kept in accordance with the provisions of the statutes of the United States , has the effect of a grant by the United States of the right of present and exclusive possession of the lands located.”
U.S. Supreme Court, 1884
With the title passes away all authority or control of the executive department over the land and over the title which it has conveyed. It would be as reasonable to hold that any private owner who has conveyed it to another can, of his own volition, recall, cancel or annul the instrument which he has made and delivered. If fraud, mistake, error, or wrong has been done, the courts of justice present the only remedy. These courts are as open to the United States to sue for the cancellation of the deed or reconveyance of the land as to individuals, and if the government is the party injured this is the proper course”.
Moore v. Robbins, 96 U.S. 530, 533, 24 L. Ed. 848.
That whenever the question in any court, state or federal, is whether a title to land which has once been the property of the United States has passed, that question must be resolved by the laws of the United States; but that whenever, according to those laws, the title shall have passed, then that property, like all other property in the state, is subject to state legislation, so far as that legislation is consistent with the admission that the title passed and vested according to the laws of the United States”.
Wilcox v. McConnell, 13 Pet. ( U.S. ) 498, 517, 10 L. Ed. 264.
“Title by patent from the United States to a tract of ground, theretofore public, prima facie carries ownership of all beneath the surface, and possession under such patent of the surface is presumptively possession of all beneath the surface.
Lawson v. United States Min. Co. 207 U.S. 1, 8, 28 Sup. Ct. 15, 17, 52, L. Ed. 65.
Grub-stake contracts will be enforced by the courts, but only as other contracts; that is to say, it is not enough for parties to assert that they have rights, in order to secure legal protection, but they must be able to prove in each case a clear and definite contract, and that by the terms and conditions of such contract, and compliance therewith on their part, rights have become vested.
Cisna v. Mallory (C.C.) 84 Fed. 851, 854.
The common-law rule is that the lessee of real property may work already opened mines, but cannot open new ones. But the lease may expressly, or by implication from express powers, give the right to take the minerals, the instrument is a genuine lease.
Oshoon v. Bayaud 123 N.Y. 298. 25 N.E. 376
On the other hand, if an attempt is made by the instrument to pass title to the minerals in place, there is really a sale of the mineral.
Plummer v. Hillside Coal & Iron Co. 104 Fed. 208, 43 C.C. A. 490
Whatever the form of the instrument of conveyance, and even though the parties speak of it in its terms as a lease, if its fair construction shows that the title to the minerals in place is to pass upon the delivery of the instrument, while the surface is retained, or vice versa, and, of course, for all time, if the fee is granted, except that the fee to the space occupied by the minerals seems to terminate when the mine is exhausted.
McConnell v. Pierce, 210 Ill. 627, 71 N.E. 622., Moore v. Indian Camp Coal Co.,493, 0 N.E. 6.
The relationship among joint venturers was eloquently described by United States Supreme Court Justice Cardozo in the seminal 1928 case of Meinhard v. Salmon - “joint adventurers, like copartners, owe to one another, while the enterprise continues, the duty of the finest loyalty. Many forms of conduct permissible in a workaday world for those acting at arm's length, are forbidden to those bound by fiduciary ties. Not honesty alone, but the punctilio of an honor the most sensitive, is then the standard of behavior. As to this there has developed a tradition that is unbending and inveterate. Uncompromising rigidity has been the attitude of courts of equity when petitioned to undermine the rule of undivided loyalty by the ‘disintegrating erosion' of particular exceptions. Only thus has the level of conduct for fiduciaries been kept at a level higher than that trodden by the crowd.”)
What kind of tree was that? "A wooden one" he said.
On November 30, 2010 EPA Administrator Lisa Jackson announced that on the occasion of EPA's 40th anniversary the Agency was asking the National Research Council to conduct a study on how to make the concept of sustainability operational at EPA.
The Administrator's briefing was an historic event aimed at laying the groundwork for a new approach to environmental management aimed at better addressing problems of the 21st century.
Listening to the Administrator's announcement, I thought of EPA's history and how its role has evolved from policeman, to risk assessor and potentially now to environmental innovator.
After EPA was first created in 1970 it quickly became the federal government's chief watchdog against environmental pollution. In those early days the nation's major environmental challenges – largely related to poor industrial practices and inadequate occupational safety – were highly visible and often not difficult to understand. Federal legislation addressed obvious causes of pollution and water contamination , enacting specific laws to achieve cleaner land, air and water.
Complementing and moving beyond its role as a watchdog, EPA soon began to use risk assessment and risk management as an overall framework for Agency decisions. The value of risk assessment and management was given a big boost in 1983 when the National Research Council published Risk Assessment in the Federal Government: Managing the Process. The report helped advance risk assessment and management in EPA programs.
Today however, the scientific and environmental communities are recognizing that risk assessment and risk management must be complemented by an emphasis on sustainable approaches and solutions to environmental problems.
Sustainability science takes into account that no problem the Agency faces narrowly affects only air or water or land. It tells us that we need a far more integrated approach using new tools and metrics to implement EPA actions and to achieve our mission. It also underlines that we must attract a new generation of scientists and scholars who can be innovative in addressing complex problems.
Administrator Jackson is mandating each of us to address, under new conditions, the challenge that former Administrator Bill Reilly clearly articulated in 1995: “The U.S. Environmental Protection Agency is at its best when it views its role as not just custodial but as cutting-edge, providing leadership and prescribing answers to key environmental problems.”
Sustainability science can help us and the Agency be at our best.
About the Author: Dr. Alan D. Hecht is Director for Sustainable Development in EPA's Office of Research and Development.
Editor's Note: The opinions expressed in Greenversations are those of the author. They do not reflect EPA policy, endorsement, or action, and EPA does not verify the accuracy or science of the contents of the blog.
Secretary of the Interior Ken Salazar issued a secretarial order Dec. 23 directing the Bureau of Land Management to designate areas with wilderness characteristics under its jurisdiction as “wild lands” and to manage them to protect their wilderness values.
“Americans love the wild places where they hunt, fish, hike and get away from it all, and they expect these lands to be protected wisely on their behalf,” Salazar said in a statement.
BLM Director Bob Abbey said the new “policy affirms the BLM's authorities under the law — and our responsibility to the American people — to protect the wilderness characteristics of the lands we oversee as part of our multiple use mission.”
Interior said input from the public and from local communities would be accepted on the designation through BLM's existing land management planning process.
BLM has not had a comprehensive national wilderness policy since 2003 when wilderness management guidance in BLM's handbook was revoked as part of what Interior described as “a controversial out-of-court settlement between then-Secretary of the Interior Gale Norton, the State of Utah, and other parties.”
Concerns from congressional delegation
Alaska's congressman, Republican Don Young, expressed outrage at Interior's actions in a Dec. 23 statement, calling it “yet another example of overreaching by the Federal Government and of the Administration detouring around Congress to get what they want.”
He called the action “disgraceful,” and said that as a member of the incoming Republican majority in the House, and the senior Republican on the Committee on Natural Resources in the present Congress, he would do everything in his power “to stop this overreaching by the Administration.”
“The new designation raises concerns about whether the Interior Department is trying to do an end run around Congress, which has sole authority to designate new wilderness areas,” said Robert Dillon, a spokesman for U.S. Sen. Lisa Murkowski, R-Alaska. “Further wilderness in Alaska without congressional approval is prohibited under the terms of ANILCA and Sen. Murkowski expects the federal government to live up to its end of that agreement.”
In background on the Alaska National Interest Lands Conservation Act, Dillon said in an e-mail to Petroleum News that the promise written into the law is that there would be “no more” presidential wilderness designations in Alaska of more than 5,000 acres, including use of the Antiquities Act, without express approval of Congress. ANILCA even prohibits study of lands for possible wilderness designation unless authorized by Congress.
State already concerned
Alaska Gov. Sean Parnell said Dec. 29: “The ‘wild land' designation for multiple-use Bureau of Land Management land is an undisguised end-run on ANILCA's ‘no more' provisions, an effort to create a de facto wilderness without Congressional oversight. It ignores ANILCA's hard-fought provisions that protect both access for traditional activities and resources that are the bedrock of Alaska's economy. We intend to bring our concerns to the Interior Department and the Congress and will also look to see what legal remedies may be available.”
Parnell had written to Salazar in November, objecting to “how certain agencies within the Department of the Interior are interpreting the Alaska National Interest Lands Conservation Act.”
He told Salazar that ANILCA, signed into law by President Carter in 1980, achieved a balance of interests, with “more than 100 million acres of federal land in Alaska” designated as new or expanded conservation system units, while also seeking to protect the state's “fledgling economy and infrastructure” and “lending finality to the issue of the State's conservation designations.”
The governor said BLM “appears to be weighing whether to add wilderness reviews” to its resource management plans in Alaska, and noted that since the passage of ANILCA, nearly all secretaries of the Interior have asked for concurrence from Alaska's governor before conducting wilderness reviews on BLM lands in Alaska.”lands in Alaska.”
NPR-A
BLM Director Bob Abbey told a Resource Development Council for Alaska audience in early December that lands within the National Petroleum Reserve-Alaska “will be assessed (and) … lands with wilderness character will be identified,” as part of the new planning effort under way for NPR-A.
When Abbey was asked at his RCA talk why, with the ANILCA compromise in place, BLM was thinking of designating lands in NPR-A as wilderness, he said he was “well aware of differences of opinion relative to what the law requires.”
Information provided by Interior related to the new wild lands policy said there has never been a statewide wilderness inventory in Alaska. The department said ANILCA “specifically recognizes the Secretary may ‘identify areas in Alaska which he determines are suitable as wilderness,'” and may make recommendations to Congress for designation of those lands as wilderness.
“Mindful of the balance struck in ANILCA, the Order permits Wild Lands to be designated in Alaska only through the BLM's comprehensive land use planning processes, which proves for robust public comment and involvement,” Interior said.
BLM “must inventory the lands in NPR-A and may designate Wild Lands in NPR-A as part of its integrated activity planning for the area,” the department said, but also said it “will continue to conduct an expeditious program of competitive oil and gas leasing in the Reserve.”
Interior said the new order provides a mechanism for the secretary of Interior “to accept the invitation extended by Congress in section 1320 of ANILCA to ‘identify areas in Alaska which he determines are suitable as wilderness and … from time to time, make recommendations to the Congress for inclusion of any such areas in the National Wilderness Preservation System, pursuant to the provisions of the Wilderness Act.'”
Designation can be modified
Interior said a wild lands designation can be made and later modified through a public administrative process, distinguishing wild lands from wilderness areas which are designated by Congress and can only be modified by legislation, and wilderness study areas, which BLM typically must manage to protect wilderness characteristics until Congress determines whether to permanently protect them as wilderness areas or modify their management.
The secretarial order states that BLM will maintain a current inventory of land under its jurisdiction and identify lands that are not designated wilderness or wilderness study areas but have wilderness characteristics.
That information will be shared with the public and integrated into BLM's land management decisions.
In the order BLM is directed to develop policy guidance within 60 days of the order, defining and clarifying how public lands with wilderness characteristics will be inventoried, described and managed.
BLM is directed to maintain a national wilderness database accessible to the public and updated annually, describing all public lands identified by BLM has having wilderness characteristics and how those lands are being managed.
And BLM is to ensure that project-level decisions and land-use planning efforts take wilderness characteristics into consideration and “include appropriate measures to protect the area's wilderness characteristics” where those lands have been identified as wild lands.
Where there are lands not previously inventoried as wild lands, but where “BLM determines that the land appears to have wilderness characteristics … BLM shall preserve its discretion to protect wildness characteristics” in land-use planning, unless BLM determines, based on a National Environmental Protection Act analysis, that a project which impairs wilderness characteristics is “appropriate and consistent with requirements of applicable law and other resource considerations consistent with this Order or necessary for the exercise of valid existing rights.”
New bioactive nanomaterial enables humans to grow new cartilage
Sport is tough on the body, and one of the major health risks from being active is permanent damage to cartilage around the joints. Humans are unable to regenerate cartilage once they are adults and often have to live with painful joints or osteoarthritis, but researchers at Northwestern University are the first to design a bio-active nanomaterial that promotes the growth of new cartilage in vivo and without the use of expensive growth factors. Good new sports fans...
The economic and social impact from damaged cartilage is unknown, but the economic impact of osteoarthritis is estimated to be almost $65 billion in the United States alone. Type II collagen is the major protein in articular cartilage, and comprises the smooth, white connective tissue that covers the ends of bones where they come together to form joints. Until now surgery to regenerate cartilage has involved a procedure called 'microfracture' but this tends to produce a cartilage having predominantly Type I collagen which is more like scar tissue.
In this new minimally-invasive procedure, a bio-active material of nanoscopic fibers stimulates stem cells present in bone marrow to produce cartilage containing type II collagen and repair the damaged joint. The gel is injected to the damaged area of joint where it forms a cohesive solid mimicking what cells normally see and effecting a molecular bind which is essential to the repair and regeneration.
In early trials on animals with cartilage defects, the animals were treated with microfracture, where tiny holes made in the bone beneath the damaged area allow a new blood supply to stimulate new cartilage growth. Implants trialled microfracture alone; microfracture and the nanofiber gel with growth factor added; and microfracture and the nanofiber gel without growth factor added.
Researchers found their technique produced much better results than the microfracture procedure alone, and significantly that addition of expensive growth factor was not required to get the best results. Instead growth factor present in the body appeared to be sufficient to regenerate cartilage because of the molecular design of the gel material. The gel matrix only needs to be present for a month, after which it begins to biodegrade into nutrients and is replaced by natural cartilage.
For the thousands of amateur athletics, professional sportspeople, and elderly people who suffer with joint pain in knees, elbows and shoulders this could be a boon. Used in conjunction with current minimally invasive surgical techniques it could accelerate rehabilitation, and delay or even halt the progression of cartilage lesions into painful degeneration and arthritis. The nanomaterial is being evaluated in a larger preclinical study after which it is hoped the procedure will move to clinical trials.
by Dan Flynn | Dec 31, 2010 The number 2 food safety story of the year concerned USDA's regulatory bottleneck:
Abe Lincoln saw the United States Department of Agriculture (USDA) created with his signature in 1862 as "the people's department" with no need for its executive officer to be in the President's cabinet.
The new department would operate like the Agricultural Division of the Patent Office that preceded it, without a role in politics or policy.
In the words of the law creating it, USDA would "acquire and to diffuse among the people of the United States useful information on subjects connected with agriculture in the most general and comprehensive sense of that word, and to procure, propagate, and distribute among the people new and valuable seeds and plants."
Lincoln's USDA--which did not do food safety--lasted about 27 years before the USDA Commissioner was elevated to be the Secretary of Agriculture and became a cabinet member. Today,121 years later, the 30th Secretary of Agriculture is Tom Vilsack and his USDA does just about everything.
Vilsack's duties now extend so far beyond handing out "useful information" and "new and valuable seeds and plants" that it is difficult for most people to get their heads around everything he oversees. America is not the agrarian state that it was when Lincoln created USDA, but that has not stopped Congress from piling ever more responsibilities onto the Secretary of Agriculture.
Early on, that included the Bureau of Animal Industry, an attempt to prevent diseased animals from getting into the food supply. It was the predecessor to the Food Safety and Inspection Service (FSIS). Foreign restrictions on U.S. food exports later led to the 1890 Food Inspection Act.
Then Upton Sinclair's 1905 book, "The Jungle," resulted in the Food and Drug Act and the Meat Inspection Act a year later. USDA's Bureau of Chemistry evolved into the U.S. Food and Drug Administration (FDA).
More was added to USDA during the New Deal and Great Society years, all of which makes the Ag Secretary one of the federal government's major policy makers. And what's on Vilsack's agenda is the second biggest food safety story of 2010. Here are some examples:
The Child Nutrition Act, which gives the Secretary of Agriculture the power to set nutritional standards for the nation's school children. Vilsack has until late 2011 to make that decision.
The 2008 Farm Bill gives the Secretary of Agriculture, through FSIS, the power to regulate and inspect catfish just as it now does beef, pork, and poultry. Vilsack has not yet made that happen.
The Secretary of Agriculture, through FSIS, has the power to say what is an adulterant in meat. FSIS was petitioned more than a year ago to name six non-O157:H7 toxic strains of E. coli as adulterants, but has not yet acted.
Proposed changes to the way USDA regulates beef and hog markets under the Grain Inspection, Packers and Stockyard Administration (GIPSA) have already ignited a war of sorts in cattle and hog country. Vilsack will have to decide in 2011 just what changes are going to be imposed, and there are ramifications for both food safety and the humane treatment of animals.
Before Christmas, USDA did issue a final Environmental Impact Statement (EIS) for genetically modified (GM) alfalfa, but the popular Roundup Ready sugar beats might be plowed under all because the Secretary has not gotten a process down that can withstand a court challenge. Vilsack has to decide if he wants to run the GM process or let a federal judge do it.
Just when you thought it was all over… Right before Christmas, Congress passed legislation (S.3481) amending the Clean Water Act and clarifying that the federal government must pay stormwater utility fees to local governments . This may sound kind of mundane, but local stormwater utility fees are an increasingly important way to fund local effort to reduce polluted stormwater runoff.
Here's how it works: a city will set a fee based on a parcel's impervious surface (e.g. rooftops, parking lots, etc.) that generate polluted stormwater runoff and use that money to fund stormwater improvement projects for cleaner water. Stormwater utilities exist throughout the country in places like Minneapolis , Orlando , Bend, Oregon and Philadelphia just to name a few. Most of these fees can be reduced by decreasing the pollution impact of a site by treating and cleaning water on-site, often using green infrastructure techniques. In Milwaukee , for instance, American Rivers staffer Sean Foltz is working to promote the green infrastructure credit as part of the City's stormwater utility fee – a ten acre business parcel stands to save over $15,000 a year by installing green infrastructure practices such as green roofs. Stormwater utility fees also provide an important and steady stream of funding that can allow communities to qualify for additional federal funding – in Philadelphia, the stormwater funds helped secure the city a $30 million loan for green infrastructure from federal clean water infrastructure funds because there was a payback mechanism associated with the City's Greenworks plan.
Unfortunately, the federal government, in Washington DC and around the country, has claimed that it did not have to pay these fees to local governments based on claims of sovereign immunity. In DC this amounts to millions of dollars, but also affects communities across the country : Seattle is owed over a million dollars by several federal agencies, Aurora Colorado is owed almost $150,000 from an Air Force Base, and a metro Atlanta County is due $160,000.
The new legislation will remedy this problem and ensure that the federal government pays it's fair share for the pollution it creates. A good start for 2011 and while not binding on similar disputes at the state and local level , hopefully this new policy will make clear that a small fee on a pollution source can go a long way for clean water.
In California we are spearheading some of the most innovative water supply solutions seen anywhere in the country. Whether it is restoring meadows in the Sierra, that provides water for 65% of Californians, removing barriers to salmon migration, or improving dam operations on the Yuba and Bear rivers, our staff is proving that it is possible to get communities the water they need while keeping our rivers healthy. We are also leading efforts to remove some of the state's outdated dams. Our skillful negotiations recently resulted in an agreement to remove four dams on the Klamath River – the biggest dam removal and river restoration project the world has ever seen. With global warming shrinking mountain snowpack and bringing more intense floods and droughts, our work to protect California's rivers and fresh water is more important than ever.
Note: Here is a great article on origins of OATHS and JURISDICTION. This is fifteen pages of history that you most likely have never read before. Do you claim to be a free man. Here is a reality check to see if you truly are free. Most who claim to be free, are suffering from an illusion. Sir David Andrew.
§ 1746. Unsworn declarations under penalty of perjury
How Current is This? Wherever, under any law of the United States or under any rule, regulation, order, or requirement made pursuant to law, any matter is required or permitted to be supported, evidenced, established,
or proved by the sworn declaration, verification, certificate, statement, oath, or affidavit, in writing of the person making the same (other than a deposition, or an oath of office, or an oath required to be taken before a specified official other than a notary public), such matter may, with like force and effect, be supported, evidenced, established, or proved by the unsworn declaration, certificate, verification, or statement, in writing of such person which is subscribed by him, as true under penalty of perjury, and dated, in substantially the following form:
(1) If executed without the United States: “I declare (or certify, verify, or state) under penalty of perjury under the laws of the United States of America that the foregoing is true and correct. Executed on (date). (Signature)”. (2) If executed within the United States, its territories, possessions, or commonwealths: “I declare (or certify, verify, or state) under penalty of perjury that the foregoing is true and correct. Executed on (date). (Signature)”.
In all of history there has been but one successful protest against an income tax. It is little understood in that light, primarily because the remnants of protest groups still exist, but no longer wish to appear to be "anti-government." They don't talk much about these roots. Few even know them. We need to go back in time about 400 years to find this success. It succeeded only because the term "jurisdiction" was still well understood at that time as meaning "oath spoken." "Juris," in the original Latin meaning, is "oath." "Diction" as everyone knows, means "spoken." The protest obviously didn't happen here. It occurred in England. Given that the origins of our law are traced there, most of the relevant facts in this matter are still applicable in this nation. Here's what happened.
The Bible had just recently been put into print. To that time, only the churches and nobility owned copies, due to given to the extremely high cost of paper. Contrary to what you've been taught, it was not the invention of movable type that led to printing this and other books. That concept had been around for a very long time. It just had no application. Printing wastes some paper. Until paper prices fell, it was cheaper to write books by hand than to print them with movable type. The handwritten versions were outrageously costly, procurable only by those with extreme wealth: churches, crowns and the nobility. The wealth of the nobility was attributable to feudalism. "Feud" is Old English for "oath." The nobility held the land under the crown. But unimproved land, itself, save to hunter/gatherers, is rather useless. Land is useful to farming. So that's how the nobility made their wealth. No, they didn't push a plow. They had servants to do it. The nobility wouldn't sell their land, nor would they lease it. They rented it. Ever paid rent without a lease? Then you know that if the landlord raised the rent, you had no legal recourse. You could move out or pay. But what if you couldn't have moved out? Then you'd have a feel for what feudalism was all about.
A tenant wasn't a freeman. He was a servant to the (land)lord, the noble. In order to have access to the land to farm it, the noble required that the tenant kneel before him, hat in hand, swear an oath of fealty and allegiance and kiss his ring (extending that oath in that last act to the heirs of his estate). That oath established a servitude. The tenant then put his plow to the fields. The rent was a variable. In good growing years it was very high, in bad years it fell. The tenant was a subsistence farmer, keeping only enough of the produce of his labors to just sustain him and his family. Rent was actually an "income tax." The nobleman could have demanded 100% of the productivity of his servant except . . . under the common law, a servant was akin to livestock. He had to be fed. Not well fed, just fed, same as a horse or cow. And, like a horse or cow, one usually finds it to his benefit to keep it fed, that so that the critter is productive. Thus, the tenant was allowed to keep some of his own productivity. Liken it to a "personal and dependent deductions."
The freemen of the realm, primarily the tradesmen, were unsworn and unaliened. They knew it. They taught their sons the trade so they'd also be free when grown. Occasionally they took on an apprentice under a sworn contract of indenture from his father. His parents made a few coins. But the kid was the biggest beneficiary. He'd learn a trade. He'd never need to become a tenant farmer. He'd keep what he earned. He was only apprenticed for a term of years, most typically about seven. The tradesmen didn't need adolescents; they needed someone strong enough to pull his own weight. They did not take on anyone under 13. By age 21 he'd have learned enough to practice the craft. That's when the contract expired. He was then called a "journeyman." Had he made a journey? No. But, if you pronounce that word, it is "Jur-nee-man." He was a "man," formerly ("nee"), bound by oath ("jur)." He'd then go to work for a "master" (craftsman). The pay was established, but he could ask for more if he felt he was worth more. And he was free to quit. Pretty normal, eh? Yes, in this society that's quite the norm. But 400 some years ago these men were the exceptions, not the rule. At some point, if the journeyman was good at the trade, he'd be recognized by the market as a "master" (craftsman) and people would be begging him to take their children as apprentices, so they might learn from him, become journeymen, and keep what they earned when manumitted at age 21! The oath of the tenant ran for life. The oath of the apprentice's father ran only for a term of years. Still, oaths were important on both sides. In fact, the tradesmen at one point established guilds (means "gold") as a protection against the potential of the government attempting to bind them into servitude by compelled oaths.
When an apprentice became a journeyman, he was allowed a membership in the guild only by swearing a secret oath to the guild. He literally swore to "serve gold." Only gold. He swore he'd only work for pay! Once so sworn, any other oath of servitude would be a perjury of that oath. He bound himself for life to never be a servant, save to the very benevolent master: gold! (Incidentally, the Order of Free and Accepted Masons is a remnant of one of these guilds. Their oath is a secret. They'd love to have you think that the "G" in the middle of their logo stands for "God." The obvious truth is that it stands for "GOLD.")
Then the Bible came to print. The market for this tome wasn't the wealthy. They already had a handwritten copy. Nor was it the tenants. They were far too poor to make this purchase. The market was the tradesmen - and the book was still so costly that it took the combined life savings of siblings to buy a family Bible. The other reason that the tradesmen were the market was that they'd also been taught how to read as part of their apprenticeship. As contractors they had to know how to do that! Other than the families of the super-rich (and the priests) nobody else knew how to read.
These men were blown away when they read Jesus' command against swearing oaths (Matt 5: 33-37). This was news to them. For well over a millennial, they'd been trusting that the church - originally just the Church of Rome, but now also the Church of England - had been telling them everything they needed to know in that book. Then they found out that Jesus said, "Swear no oaths." Talk about an eye-opener.
Imagine seeing a conspiracy revealed that went back over 1000 years. Without oaths there'd have been no tenants, laboring for the nobility, and receiving mere subsistence in return. The whole society was premised on oaths; the whole society CLAIMED it was Christian, yet, it violated a very simple command of Christ! And the tradesmen had done it, too, by demanding sworn contracts of indenture for apprentices and giving their own oaths to the guilds. They had no way of knowing that was prohibited by Jesus! They were angry. "Livid" might be a better term. The governments had seen this coming. What could they do? Ban the book? The printing would have simply moved underground and the millennial long conspiracy would be further evidenced in that banning. They came up with a better scheme. You call it the "Reformation."
In an unprecedented display of unanimity, the governments of Europe adopted a treaty. This treaty would allow anyone the State-right of founding a church. It was considered a State right, there and then. The church would be granted a charter. It only had to do one very simple thing to obtain that charter. It had to assent to the terms of the treaty.
Buried in those provisions, most of which were totally innocuous, was a statement that the church would never oppose the swearing of lawful oaths. Jesus said, "None." The churches all said (and still say), "None, except . . ." Who do you think was (is) right?
The tradesmen got even angrier! They had already left the Church of England. But with every new "reformed" church still opposing the clear words of Christ, there was no church for them to join - or found. They exercised the right of assembly to discuss the Bible. Some of them preached it on the street corners, using their right of freedom of speech. But they couldn't establish a church, which followed Jesus' words, for that would have required assent to that treaty which opposed what Jesus had commanded. To show their absolute displeasure with those who'd kept this secret for so long, they refused to give anyone in church or state any respect. It was the custom to doff one's hat when he encountered a priest or official. They started wearing big, ugly black hats, just so that the most myopic of these claimed "superiors" wouldn't miss the fact that the hat stayed atop their head. Back then the term "you" was formal English, reserved for use when speaking to a superior. "Thee" was the familiar pronoun, used among family and friends. So they called these officials only by the familiar pronoun "thee" or by their Christian names, "George, Peter, Robert, etc." We call these folk "Quakers." That was a nickname given to them by a judge. One of them had told the judge that he'd better "Quake before the Lord, God almighty." The judge, in a display of irreverent disrespect replied, "Thee are the quaker here." They found that pretty funny, it being such a total misnomer (as you shall soon see), and the nickname stuck. With the huge membership losses from the Anglican Church - especially from men who'd been the more charitable to it in the past - the church was technically bankrupt. It wasn't just the losses from the Quakers. Other people were leaving to join the new "Reformed Churches." Elsewhere in Europe, the Roman Church had amassed sufficient assets to weather this storm. The far newer Anglican Church had not.
But the Anglican Church, as an agency of the State, can't go bankrupt. It becomes the duty of the State to support it in hard times. Parliament did so. It enacted a tax to that end. A nice religious tax, and by current standards a very low tax, a tithe (10%). But it made a deadly mistake in that. The Quakers, primarily as tradesmen, recognized this income tax as a tax "without jurisdiction,' at least so far as they went. As men unsworn and unaliened, they pointed out that they didn't have to pay it, nor provide a return. Absent their oaths establishing this servitude, there was "no jurisdiction." And they were right. Despite laws making it a crime to willfully refuse to make a return and pay this tax, NONE were charged or arrested.
That caused the rest of the society to take notice. Other folk who'd thought the Quakers were "extremists" suddenly began to listen to them. As always, money talks. These guys were keeping all they earned, while the rest of the un-sworn society, thinking this tax applied to them, well; they were out 10%. The Quaker movement expanded significantly, that proof once made in the marketplace. Membership in the Anglican Church fell even further, as did charity to it. The taxes weren't enough to offset these further losses. The tithe (income) tax was actually counterproductive to the goal of supporting the church. The members of the government and the churchmen were scared silly. If this movement continued to expand at the current rate, no one in the next generation would swear an oath. Who'd then farm the lands of the nobility? Oh, surely someone would, but not as a servant working for subsistence. The land would need to be leased under a contract, with the payment for that use established in the market, not on the unilateral whim of the nobleman. The wealth of the nobility, their incomes, was about to be greatly diminished. And the Church of England, what assets it possessed, would need to be sold-off, with what remained of that church greatly reduced in power and wealth. But far worse was the diminishment of the respect demanded by the priests and officials. They'd always held a position of superiority in the society. What would they do when all of society treated them only as equals?
They began to use the term "anarchy." But England was a monarchy, not an anarchy. And that was the ultimate solution to the problem, or so those in government thought. There's an aspect of a monarchy that Americans find somewhat incomprehensible, or at least we did two centuries ago. A crown has divine right, or at least it so claims. An expression of the divine right of a crown is the power to rule by demand. A crown can issue commands. The king says, "jump." Everyone jumps.
Why do they jump? Simple. It's a crime to NOT jump. To "willfully fail (hey, there's a couple of familiar terms) to obey a crown command" is considered to be a treason, high treason. The British crown issued a Crown Command to end the tax objection movement.
Did the crown order that everyone shall pay the income tax? No, that wasn't possible. There really was "no jurisdiction." And that would have done nothing to cure the lack of respect. The crown went one better. It ordered that every man shall swear an oath of allegiance to the crown! Damned Christian thing to do, eh? Literally!
A small handful of the tax objectors obeyed. Most refused. It was a simple matter of black and white. Jesus said "swear not at all." They opted to obey Him over the crown. That quickly brought them into court, facing the charge of high treason. An official would take the witness stand, swearing that he had no record of the defendant's oath of allegiance. Then the defendant was called to testify, there being no right to refuse to witness against one's self. He refused to accept the administered oath. That refusal on the record, the court instantly judged him guilty. Took all of 10 minutes. That expedience was essential, for there were another couple hundred defendants waiting to be tried that day for their own treasons against the crown. In short order the jails reached their capacity, plus. But they weren't filled as you'd envision them. The men who'd refused the oaths weren't there. Their children were. There was a "Stand-in" law allowing for that. There was no social welfare system. The wife and children of a married man in prison existed on the charity of church and neighbors, or they ceased to exist, starving to death. It was typical for a man convicted of a petty crime to have one of his kid's stand in for him for 30 or 90 days. That way he could continue to earn a living, keeping bread on the table, without the family having to rely on charity. However, a man convicted of more heinous crimes would usually find it impossible to convince his wife to allow his children to serve his time. The family would prefer to exist on charity rather than see him back in society. But in this case the family had no option. The family was churchless. The neighbors were all in the same situation. Charity was non-existent for them. The family was destined to quick starvation unless one of the children stood- in for the breadwinner. Unfortunately, the rational choice of which child should serve the time was predicated on which child was the least productive to the family earnings.
That meant nearly the youngest, usually a daughter. Thus, the prisons of England filled with adolescent females, serving the life sentences for their dads. Those lives would be short. There was no heat in the jails. They were rife with tuberculosis and other deadly diseases. A strong man might last several years. A small girl measured her remaining time on earth in months. It was Christian holocaust, a true sacrifice of the unblemished lambs. (And, we must note, completely ignored in virtually every history text covering this era, lest the crown, government and church be duly embarrassed.) Despite the high mortality rate the jails still overflowed. There was little fear that the daughters would be raped or die at the brutality of other prisoners. The other prisoners, the real felons, had all been released to make room. Early release was premised on the severity of the crime. High treason was the highest crime. The murderers, thieves, arsonists, rapists, etc., had all been set free. That had a very profound effect on commerce. It stopped. There were highwaymen afoot on every road. Thugs and muggers ruled the city streets. The sworn subjects of the crown sat behind bolted doors, in cold, dark homes, wondering how they'd exist when the food and water ran out. They finally dared to venture out to attend meetings to address the situation. At those meetings they discussed methods to overthrow the crown to which they were sworn! Call that perjury. Call that sedition. Call it by any name, they were going to put their words into actions, and soon, or die from starvation or the blade of a thug. Here we should note that chaos (and nearly anarchy: "no crown") came to be, not as the result of the refusal to swear oaths, but as the direct result of the governmental demand that people swear them! The followers of Jesus' words didn't bring that chaos, those who ignored that command of Christ brought it. The crown soon saw the revolutionary handwriting on the wall and ordered the release of the children and the recapture of the real felons, before the government was removed from office under force of arms. The courts came up with the odd concept of an "affirmation in lieu of oath." The Quakers accepted that as a victory. Given what they'd been through, that was understandable. However, Jesus also prohibited affirmations, calling the practice an oath "by thy head." Funny that He could foresee the legal concept of an affirmation 1600 years before it came to be. Quite a prophecy!
When the colonies opened to migration, the Quakers fled Europe in droves, trying to put as much distance as they could between themselves and crowns. They had a very rational fear of a repeat of the situation. That put a lot of them here, enough that they had a very strong influence on politics. They could have blocked the ratification of the Constitution had they opposed it. Some of their demands were incorporated into it, as were some of their concessions, in balance to those demands. Their most obvious influence found in the Constitution is the definition of treason, the only crime defined in that document. Treason here is half of what can be committed under a crown. In the United States treason may only arise out of an (overt) ACTION. A refusal to perform an action at the command of the government is not a treason, hence, NOT A CRIME. You can find that restated in the Bill of Rights, where the territorial jurisdiction of the courts to try a criminal act is limited to the place wherein the crime shall have been COMMITTED. A refusal or failure is not an act "committed" - it's the opposite, an act "omitted." In this nation "doing nothing" can't be criminal, even when someone claims the power to command you do something. That concept in place, the new government would have lasted about three years. You see, if it were not a crime to fail to do something, then the officers of that government would have done NOTHING - save to draw their pay. That truth forced the Quakers to a concession.
Anyone holding a government job would need be sworn (or affirmed) to support the Constitution. That Constitution enabled the Congress to enact laws necessary and proper to control the powers vested in these people. Those laws would establish their duties. Should such an official "fail" to perform his lawful duties, he'd evidence in that omission that his oath was false. To swear a false oath is an ACTION. Thus, the punishments for failures would exist under the concept of perjury, not treason. But that was only regarding persons under oath of office, who were in office only by their oaths. And that's still the situation. It's just that the government has very cleverly obscured that fact so that the average man will pay it a rent, a tax on income. As you probably know, the first use of income tax here came well in advance of the 16th amendment. That tax was NEARLY abolished by a late 19th century Supreme Court decision. The problem was that the tax wasn't apportioned, and couldn't be apportioned, that because of the fact that it rested on the income of each person earning it, rather than an up-front total, divided and meted out to the several States according to the census. But the income tax wasn't absolutely abolished. The court listed a solitary exception. The incomes of federal officers, derived as a benefit of office, could be so taxed. You could call that a "kick back" or even a "return." Essentially, the court said that what Congress gives, it can demand back. As that wouldn't be income derived within a State, the rule of apportionment didn't apply. Make sense?
Now, no court can just make up rulings. The function of a court is to answer the questions posed to it. And in order to pose a question, a person needs standing." The petitioner has to show that an action has occurred which affects him, hence, giving him that standing. For the Supreme Court to address the question of the income of officers demonstrates that the petitioner was such. Otherwise, the question couldn't have come up.
Congress was taxing his benefits of office. But Congress was ALSO taxing his outside income, that from sources within a State. Could have been interest, dividends, rent, royalties, and even alimony. If he had a side job, it might have even been commissions or salary. Those forms of income could not be taxed. However, Congress could tax his income from the benefits he derived by being an officer.
That Court decision was the end of all income taxation. The reason is pretty obvious. Rather than tax the benefits derived out of office, it's far easier to just reduce the benefits up front! Saves time. Saves paper. The money stays in Treasury rather than going out, then coming back as much as 15 or 16 months later. So, even though the benefits of office could have been taxed, under that Court ruling, that tax was dropped by Congress. There are two ways to overcome a Supreme Court ruling. The first is to have the court reverse itself. That's a very strange concept at law. Actually, it's impossibility at law. The only way a court can change a prior ruling is if the statutes or the Constitution change, that changing the premises on which its prior conclusion at law was derived. Because it was a Supreme Court ruling nearly abolishing the income tax, the second method, an Amendment to the Constitution, was used to overcome the prior decision. That was the 16th Amendment.
The 16th allows for Congress to tax incomes from whatever source derived, without regard to apportionment. Whose incomes? Hey, it doesn't say (nor do the statues enacted under it). The Supreme Court has stated that this Amendment granted Congress "no new powers." That's absolutely true. Congress always had the power to tax incomes, but only the incomes of officers and only their incomes derived out of a benefit of office. All the 16th did was extend that EXISTING POWER to tax officers' incomes (as benefits of office) to their incomes from other sources (from whatever source derived). The 16th Amendment and the statutes enacted thereunder don't have to say whose incomes are subject to this tax. The Supreme Court had already said that: officers. That's logical. If it could be a crime for a freeman to "willfully fail" to file or pay this tax, that crime could only exist as a treason by monarchical definition. In this nation a crime of failure may only exist under the broad category of a perjury. Period, no exception.
Thus, the trick employed by the government is to get you to claim that you are an officer of that government. Yeah, you're saying, "Man, I'd never be so foolish as to claim that." I'll betcha $100 I can prove that you did it and that you'll be forced to agree. Did you ever sign a tax form, a W-4, a 1040? Then you did it.
Look at the fine print at the bottom of the tax forms you once signed. You declared that it was "true" that you were "under penalties of perjury." Are you? Were you? Perjury is a felony. To commit a perjury you have to FIRST be under oath (or affirmation). You know that. It's common knowledge. So, to be punished for a perjury you'd need to be under oath, right? Right. There's no other way, unless you pretend to be under oath. To pretend to be under oath is a perjury automatically. There would be no oath. Hence it's a FALSE oath. Perjury rests on making a false oath. So, to claim to be "under penalties of perjury" is to claim that you're under oath. That claim could be true, could be false. But if false, and you knowingly and willingly made that false claim, then you committed a perjury just by making that claim.
You've read the Constitution. How many times can you be tried and penalized for a single criminal act? Once? Did I hear you right? Did you say once; only once? Good for you. You know that you can't even be placed in jeopardy of penalty (trial) a second time.
The term "penalties" is plural. More than one. Oops. Didn't you just state that you could only be tried once, penalized once, for a single criminal action? Sure you did. And that would almost always be true. There's a solitary exception. A federal official or employee may be twice tried, twice penalized. The second penalty, resulting out of a conviction of impeachment, is the loss of the benefits of office, for life. Federal officials are under oath, an oath of office. That's why you call them civil servants. That oath establishes jurisdiction (oath spoken), allowing them to be penalized, twice, for a perjury (especially for a perjury of official oath). You have been tricked into signing tax forms under the perjury clause. You aren't under oath enabling the commission of perjury. You can't be twice penalized for a single criminal act, even for a perjury. Still, because you trusted that the government wouldn't try to deceive you, you signed an income tax form, pretending that there was jurisdiction (oath spoken) where there was none.
Once you sign the first form, the government will forever believe that you are a civil servant. Stop signing those forms while you continue to have income and you'll be charged with "willful failure to file," a crime of doing nothing when commanded to do something!
Initially, the income tax forms were required to be SWORN (or affirmed) before a notary. A criminal by the name of Sullivan brought that matter all the way to the Supreme Court. He argued that if he listed his income from criminal activities, that information would later be used against him on a criminal charge. If he didn't list it, then swore that the form was "true, correct and complete," he could be charged and convicted of a perjury. He was damned if he did, damned if he didn't. The Supreme Court could only agree. It ruled that a person could refuse to provide any information on that form, taking individual exception to each line, and stating in that space that he refused to provide testimony against himself. That should have been the end of the income tax. In a few years everyone would have been refusing to provide answers on the "gross" and "net income" lines, forcing NO answer on the "tax due" line, as well. Of course, that decision was premised on the use of the notarized oath, causing the answers to have the quality of "testimony."
Congress then INSTANTLY ordered the forms be changed. In place of the notarized oath, the forms would contain a statement that they were made and signed "Under penalties of perjury." The prior ruling of the Supreme Court was made obsolete. Congress had changed the premise on which it had reached its conclusion. The verity of the information on the form no longer rested on a notarized oath. It rested on the taxpayer's oath of office. And, as many a tax protestor in the 1970s and early 1980s quickly discovered, the Supreme Court ruling for Sullivan had no current relevance.
There has never been a criminal trial in any matter under federal income taxation without a SIGNED tax form in evidence before the court. The court takes notice of the signature below the perjury clause and assumes the standing of the defendant is that of a federal official, a person under oath of office who may be twice penalized for a single criminal act of perjury (to his official oath). The court has jurisdiction to try such a person for a "failure." That jurisdiction arises under the concept of perjury, not treason.
However, the court is in an odd position here. If the defendant should take the witness stand, under oath or affirmation to tell the truth, and then truthfully state that he is not under oath of office and is not a federal officer or employee, that statement would contradict the signed statement on the tax form, already in evidence and made under claim of oath. That contradiction would give rise to a technical perjury. Under federal statutes, courtroom perjury is committed when a person willfully makes two statements, both under oath, which contradict one another.
The perjury clause claims the witness to be a federal person. If he truthfully says the contrary from the witness stand, the judge is then duty bound to charge him with the commission of a perjury! At his ensuing perjury trial, the two contradictory statements "(I'm) under penalties of perjury" and "I'm not a federal official or employee" would be the sole evidence of the commission of the perjury. As federal employment is a matter of public record, the truth of the last statement would be evidenced. That would prove that the perjury clause was a FALSE statement. Can't have that proof on the record, can we? About now you are thinking of some tax protester trials for "willful failure" where the defendant took the witness stand and testified, in full truth, that he was not a federal person.
This writer has studied a few such cases. Those of Irwin Schiff and F. Tupper Saussy come to mind. And you are right; they told the court that they weren't federal persons. Unfortunately, they didn't tell the court that while under oath. A most curious phenomenon occurs at "willful failure" trials where the defendant has published the fact, in books or newsletters, that he isn't a federal person. The judge becomes very absent-minded - at least that's surely what he'd try to claim if the issue were ever raised. He forgets to swear-in the defendant before he takes the witness stand. The defendant tells the truth from the witness stand, but does so without an oath. As he's not under oath, nothing he says can constitute a technical perjury as a contradiction to the "perjury clause" on the tax forms already in evidence. The court will almost always judge him guilty for his failure to file. Clever system. And it all begins when a person who is NOT a federal officer or employee signs his first income tax form, FALSELY claiming that he's under an oath which if perjured may bring him a duality of penalties. It's still a matter of jurisdiction (oath spoken). That hasn't changed in over 400 years.
The only difference is that in this nation, we have no monarch able to command us to action. In the United States of America, you have to VOLUNTEER to establish jurisdiction. Once you do, then you are subject to commands regarding the duties of your office. Hence the income tax is "voluntary," in the beginning, but "compulsory" once you volunteer. You volunteer when you sign your very first income tax form, probably a Form W-4 and probably at about age 15. You voluntarily sign a false statement, a false statement that claims that you are subject to jurisdiction. Gotcha! Oh, and when the prosecutor enters your prior signed income tax forms into evidence at a willful failure to file trial, he will always tell the court that those forms evidence that you knew it was your DUTY to make and file proper returns. DUTY!
A free man owes no DUTY. A free man owes nothing to the federal government, as he receives nothing from it. But a federal official owes a duty. He receives something from that government - the benefits of office. In addition to a return of some of those benefits, Congress can also demand that he pay a tax on his other forms of income, now under the 16th Amendment, from whatever source they may be derived. If that were ever to be understood, the ranks of real, sworn federal officers would diminish greatly. And the ranks of the pretended federal officers (including you) would vanish to zero.
It's still the same system as it was 400 years ago, with appropriate modifications, so you don't immediately realize it. Yes, it's a jurisdictional matter. An Oath-spoken matter. Quite likely you, as a student of the Constitution, have puzzled over the 14th Amendment. You've wondered who are persons "subject to the jurisdiction" of the United States and in the alternative, who are not. This is easily explained, again in the proper historical perspective.
The claimed purpose of the 14th was to vest civil rights to the former slaves. A method was needed to convert them from chattel to full civil beings. The Supreme Court had issued rulings that precluded that from occurring. Hence, an Amendment was necessary. But it took a little more than the amendment. The former slaves would need to perform an act, subjecting themselves to the "jurisdiction" of the United States. You should now realize that an oath is the way that was/is accomplished.
After the battles of the rebellion had ceased, the manumitted slaves were free, but rightless. They held no electoral franchise - they couldn't vote. The governments of the Southern States were pretty peeved over what had occurred in the prior several years, and they weren't about to extend electoral franchises to the former slaves. The Federal government found a way to force that.
It ordered that voters had to be "registered." And it ordered that to become a registered voter, one had to SWEAR an oath of allegiance to the Constitution. The white folks, by and large, weren't about to do that. They were also peeved that the excuse for all the battles was an unwritten, alleged, Constitutional premise, that a "State had no right to secede." The former slaves had no problem swearing allegiance to the Constitution. The vast majority of them didn't have the slightest idea of what an oath was, nor did they even know what the Constitution was!
Great voter registration drives took place. In an odd historical twist, these were largely sponsored by the Quakers who volunteered their assistance. Thus, most of the oaths administered were administered by Quakers! Every former slave was sworn-in, taking what actually was an OATH OF OFFICE. The electoral franchise then existed almost exclusively among the former slaves, with the white folks in the South unanimously refusing that oath and denied their right to vote. For a while many of the Southern State governments were comprised of no one other than the former slaves. The former slaves became de jure (by oath) federal officials, "subject to the jurisdiction of the United States" by that oath. They were non-compensated officials, receiving no benefits of their office, save what was then extended under the 14th Amendment. There was some brief talk of providing compensation in the form of 40 acres and a mule, but that quickly faded.
Jurisdiction over a person exists only by oath. Always has, always will. For a court to have jurisdiction, some one has to bring a charge or petition under an oath. In a criminal matter, the charge is forwarded under the oaths of the grand jurors (indictment) or under the oath of office of a federal officer (information). Even before a warrant may be issued, someone has to swear there is probable cause. Should it later be discovered that there was NOT probable cause, that person should be charged with a perjury. It's all about oaths. And the one crime for which immunity, even "sovereign immunity," cannot be extended is ... perjury.
You must understand "jurisdiction." That term is only understandable when one understands the history behind it. Know what "jurisdiction" means. You didn't WILLFULLY claim that you were "Under penalties of perjury" on those tax forms you signed. You may have done it voluntarily, but you surely did it ignorantly! You didn't realize the import and implications of that clause. It was, quite frankly, a MISTAKE. A big one. A dumb one. Still it was only a mistake. Willfulness rests on intent. You had no intent to claim that you were under an oath of office, a perjury of which could bring you dual penalties. You just didn't give those words any thought. What do you do when you discover you've made a mistake? As an honest man, you tell those who may have been affected by your error, apologize to them, and usually you promise to be more careful in the future, that as a demonstration that you, like all of us, learn by your mistakes. You really ought to drop the Secretary of the Treasury of the United States a short letter, cc it to the Commissioner of Internal Revenue. Explain that you never realized that the fine print on the bottom of all income tax forms meant that you were claiming to be "under oath" a perjury of which might be "twice" penalized. Explain that you've never sworn such an oath and that for reasons of conscience, you never will. You made this mistake on every tax form you'd ever signed. But now that you understand the words, you'll most certainly not make that mistake again! That'll be the end of any possibility that you'll ever be charged with "willful failure to file." Too simple? No, it's only as simple as it's supposed to be. Jurisdiction (oath spoken) is a pretty simple matter. Either you are subject to jurisdiction, by having really sworn an oath, or you are not. If you aren't under oath, and abolish all the pretenses, false pretenses you provided, on which the government assumed that you were under oath, then the jurisdiction fails and you become a freeman. A freeman can't be compelled to perform any act and threatened with a penalty, certainly not two penalties, should he fail to do so. That would constitute a treason charge by the part of the definition abolished here.
It's a matter of history - European history, American history, and finally, the history of your life. The first two may be hidden from you, making parts of them difficult to discover. But the last history you know. If you know that you've never sworn an oath of office, and now understand how that truth fits the other histories, then you are free. Truth does that. Funny how that works.
Jesus was that Truth. His command that His followers "Swear not at all." That was the method by which He set men free. Israel was a feudal society. It had a crown; it had landlords; they had tenant farmers bound by oath to them. Jesus scared them silly. Who'd farm those lands in the next generation, when all of the people refused to swear oaths? Ring a bell? And what did the government do to Jesus? It tried to obtain jurisdiction on the false oath of a witness, charging Him with "sedition" for the out-of-context, allegorical statement that He'd "tear down the temple" (a government building). At that trial, Jesus stood mute, refusing the administered oath. That was unheard of!
The judge became so frustrated that he posed a trick question attempting to obtain jurisdiction from Jesus. He said, "I adjure you in the name of the Living God, are you the man (accused of sedition)." An adjuration is a "compelled oath." Jesus then broke his silence, responding, "You have so said."
He didn't "take" the adjured oath. He left it with its speaker, the judge! That bound the judge to truth. Had the judge also falsely said that Jesus was the man (guilty of sedition)? No, not out loud, not yet. But in his heart he'd said so. That's what this trial was all about. Jesus tossed that falsehood back where it belonged as well as the oath. In those few words, "You have so said," Jesus put the oath, and the PERJURY of it, back on the judge, where it belonged. The court couldn't get jurisdiction.
Israel was occupied by Rome at that time. The court then shipped Jesus off to the martial governor, Pontius Pilate, hoping that martial power might compel him to submit to jurisdiction. But Pilate had no quarrel with Jesus. He correctly saw the charge as a political matter, devoid of any real criminal act. Likely, Pilate offered Jesus the "protection of Rome." Roman law extended only to sworn subjects. All Jesus would need do is swear an oath to Caesar, then Pilate could protect him. Otherwise, Jesus was probably going to turn up dead at the hands of "person or persons unknown" which would really be at the hands of the civil government, under the false charge of sedition. Pilate administered that oath to Caesar. Jesus stood mute, again refusing jurisdiction. Pilate "marveled at that." He'd never before met a man who preferred to live free or die. Under Roman law the unsworn were considered to be unclean - the "great unwashed masses." The elite were sworn to Caesar. When an official errantly extended the law to an unsworn person that "failure of jurisdiction" required that the official perform a symbolic act. To cleanse himself and the law, he would "wash his hands." Pilate did so. Under Roman law, the law to which he was sworn, he had to do so. The law, neither Roman law nor the law of Israel, could obtain jurisdiction over Jesus. The law couldn't kill Him, nor could it prevent that murder. Jesus was turned over to a mob, demanding His death. How's that for chaos? Jesus was put to death because He refused to be sworn. But the law couldn't do that. Only a mob could do so, setting free a true felon in the process. Thus, Jesus proved the one failing of the law - at least the law then and there - the law has no ability to touch a truly free man. A mob can, but the result of that is chaos, not order.
In every situation where a government attempts to compel an oath, or fails to protect a man of conscience who refuses it, the result is chaos. That government proves itself incapable of any claimed powers as the result, for the only purpose of any government should be to defend the people establishing it - all of those people - and not because they owe that government any duty or allegiance, but for the opposite reason, because the government owes the people its duty and allegiance under the law. This nation came close to that concept for quite a few decades. Then those in federal office realized that they could fool all of the people, some of the time. That "some of the time" regarded oaths and jurisdiction. We were (and still are) a Christian nation, at least the vast majority of us claim ourselves to be Christian. But we are led by churchmen who still uphold the terms of that European treaty. They still profess that it is Christian to swear an oath, so long as it's a "lawful oath." We are deceived. As deceived as the tenant in 1300, but more so, for we now have the Words of Jesus to read for ourselves.
Jesus said, "Swear no oaths," extending that even to oaths which don't name God. If His followers obeyed that command, the unscrupulous members of the society in that day would have quickly realized that they could file false lawsuits against Jesus' followers, suits that they couldn't answer (under oath). Thus, Jesus issued a secondary command, ordering His followers to sell all they had, making themselves what today we call "judgment proof." They owned only their shirt and a coat. If they were sued for their shirt, they were to offer to settle out-of-court (without oath) by giving the plaintiff their coat. That wasn't a metaphor. Jesus meant those words in the literal sense!
It's rather interesting that most income tax protestors are Christian and have already made themselves virtually judgment proof, perhaps inadvertently obeying one of Jesus' commands out of a self-preservation instinct. Do we sense something here? You need to take the final step. You must swear no oaths. That is the penultimate step in self-preservation, and in obedience to the commands of Christ. It's all a matter of "jurisdiction" (oath spoken), which a Christian can't abide. Christians must be freemen. Their faith, duty and allegiance can go to no one on earth. We can't serve two masters. No one can. As Christians our faith and allegiance rests not on an oath. Our faith and allegiance arise naturally. These are duties owed by a child to his father. As Children of God, we must be faithful to Him, our Father, and to our eldest Brother, the Inheritor of the estate. That's certain.
As to what sort of a society Jesus intended without oaths or even affirmations, this writer honestly can't envision. Certainly it would have been anarchy (no crown). Would it have also been chaos? My initial instinct is to find that it would lead to chaos. Like the Quakers in 1786, I can't envision a functional government without the use of oaths. Yet, every time a government attempts to use oaths as a device to compel servitudes, the result is CHAOS. History proves that. The Dark Ages were dark, only because the society was feudal, failing to advance to enlightenment because they were sworn into servitudes, unwittingly violating Jesus' command. When the British crown attempted to compel oaths of allegiance, chaos certainly resulted. And Jesus' own death occurred only out of the chaos derived by His refusal to swear a compelled oath and an offered oath.
The current Internal Revenue Code is about as close to legislated chaos as could ever be envisioned. No two people beginning with identical premises will reach the same conclusion under the IRC. Is not that chaos? Thus, in every instance where the government attempts to use oaths to bind a people, the result has been chaos.
Hence, this writer is forced to the conclusion that Jesus was right. We ought to avoid oaths at all costs, save our own souls, and for precisely that reason. Yet, what system of societal interaction Jesus envisioned, without oaths, escapes me. How would we deal with murderers, thieves, rapists, etc. present in the society without someone bringing a complaint, sworn complaint, before a Jury (a panel of sworn men), to punish them for these criminal actions against the civil members of that society? Perhaps you, the reader, can envision what Jesus had in mind. Even if you can't, you still have to obey His command. That will set you free. As to where we go from there, well, given that there has never been a society, neither civil nor martial, which functioned without oaths, I guess we won't see how it will function until it arrives.
Meanwhile, the first step in the process is abolishing your prior FALSE claims of being under oath (of office) on those income tax forms. You claimed "jurisdiction." Only you can reverse that by stating the Truth. It worked 400 years ago. It'll still work. It's the only thing that'll work. History can repeat, but this time without the penalty of treason extended to you (or your daughters). You can cause it. Know and tell this Truth and it will set you free. HONESTLY. Tell the government, then explain it to every Christian you know. Most of them will hate you for that bit of honesty. Be kind to them anyhow. Once they see that you are keeping what you earn, the market will force them to realize that you aren't the extremist they originally thought! If only 2% of the American people understand what is written here, income taxation will be abolished - that out of a fear that the knowledge will expand. The government will be scared silly. What if no one in the next generation would swear an oath? Then there'd be no servants! No, the income tax will be abolished long before that could ever happen. That's only money. Power comes by having an ignorant people to rule. A government will always opt for power. That way, in two or three generations, the knowledge lost to the obscure "between the lines" of history, they can run the same money game. Pass this essay on to your Christian friends. But save a copy. Will it to your grandchildren. Someday, they too will probably need this knowledge. Teach your children well. Be honest; tell the truth. That will set you free - and it'll scare the government silly.
WASHINGTON (AP) — The Obama administration took separate actions last week to protect clean air and federal wilderness areas, reaffirming the White House can pursue its goals without depending on help from an increasingly combative Congress.
In the coming two years, that might become a more popular approach.
In a statement posted on its website late Thursday, the Environmental Protection Agency announced it is moving unilaterally to clamp down on power plant and oil refinery greenhouse emissions, announcing plans for developing new standards over the next year.
EPA administrator Lisa Jackson said the aim was to better cope with pollution contributing to climate change.
“We are following through on our commitment to proceed in a measured and careful way to reduce GHG pollution that threatens the health and welfare of Americans,” Jackson said in a statement. She said emissions from power plants and oil refineries constitute about 40 percent of the greenhouse gas pollution in this country.
President Barack Obama had said two days after the midterm elections he was disappointed Congress hadn't acted on legislation achieving the same end, signaling other options were under consideration.
Jackson's announcement came on the same day the administration showed a go-it-alone approach on federal wilderness protection — another major environmental issue. Interior Secretary Ken Salazar said his agency was repealing the Bush era's policy limiting wilderness protection, which was adopted under former Interior Secretary Gale Norton.
On climate change, legislation in Congress putting a limit on heat-trapping greenhouse gases and allowing companies to buy and sell pollution permits under that ceiling — a system known as “cap and trade” — stalled in the Senate earlier this year after narrowly clearing the House. Republicans assailed it as “cap and tax,” arguing it would raise energy prices.
But the Senate in late June rejected by a 53-47 vote a challenge brought by Alaska Republican Lisa Murkowski that would have denied the EPA the authority to move ahead with the rules.
Jackson noted in Thursday's statement by her agency that several state and local governments and environmental groups had sued the EPA over the agency's failure to update or publish new standards for fossil fuel plants and petroleum refineries.
The announcement Thursday came in connection with a settlement of the suit the states brought against the EPA.
The EPA also announced Thursday it was taking the unprecedented step of directly issuing air permits to industries in Texas, citing the state's unwillingness to comply with greenhouse gas regulations going into effect next Sunday. EPA officials said they reluctantly were taking over Clean Air Act permits for greenhouse gas emissions because “officials in Texas have made clear ... they have no intention of implementing this portion of the federal air permitting program.”
Two days after the midterm elections, Obama served notice that he would look for ways to control global warming pollution other than Congress placing a ceiling on it.
“Cap-and-trade was just one way of skinning the cat; it was not the only way,” he said. “I'm going to be looking for other means to address this problem.”
The Food and Drug Administration (FDA) is reopening the comment period for the proposed rule published in the Federal Register of April 17, 1997 (the 1997 proposed rule). The 1997 proposed rule would replace the voluntary petition process to affirm the generally recognized as safe (GRAS) status of a substance intended for use in food for humans or animals with a voluntary notification procedure. FDA is reopening the comment period to update comments. The proposed rule would also clarify the criteria for exempting the use of a substance as GRAS.
You may submit comments, including comments regarding the proposed collection of information, identified by Docket No. FDA-1997-N-0020, by any of the following methods:
• Mail/Hand delivery/Courier (for paper, disk, or CD-ROM submissions): Division of Dockets Management (HFA-305), Food and Drug Administration, 5630 Fishers Lane, Rm. 1061, Rockville, MD 20852.
Instructions: All submissions received must include the Agency name and Docket No. FDA-1997-N-0020, for this rulemaking. All comments received may be posted without change to http://www.regulations.gov , including any personal information provided. For additional information on submitting comments, see the “Comments” heading of the SUPPLEMENTARY INFORMATION section of this document.
Docket: For access to the docket to read background documents or comments received, go to http://www.regulations.gov and insert the docket number, found in brackets in the heading of this document, into the “Search” box and follow the prompts and/or go to the Division of Dockets Management, 5630 Fishers Lane, Rm. 1061, Rockville, MD 20852.
With regard to substances that would be used in human food: Paulette M. Gaynor, Center for Food Safety and Applied Nutrition (HFS-255), Food and Drug Administration, 5100 Paint Branch Pkwy., College Park, MD 20740, 301-436-1192.
With regard to substances that would be used in food for animals: Geoffrey K. Wong, Center for Veterinary Medicine (HFV-224), Food and Drug Administration, 7519 Standish Pl., Rockville, MD 20855, 240-453-6879.
With regard to the information collection: Denver Presley Jr., Office of Information Management, Food and Drug Administration, 1350 Piccard Dr., PI50-400B, Rockville, MD 20850, 301-796-3793.
In the 1997 proposed rule, FDA proposed to replace the voluntary GRAS affirmation petition process in §§ 170.35(c) and 570.35(c) ( 21 CFR 170.35 (c) and 570.35(c)) with a voluntary notification procedure whereby any person may notify us of a determination that a particular use of a substance in human food (proposed § 170.36) or in food for animals (proposed § 570.36) is GRAS. [1] We also proposed to clarify the criteria in §§ 170.30 ( 21 CFR 170.30 ) and 570.30 ( 21 CFR 570.30 ) whereby the use of a substance is not subject to the premarket approval requirements of the FD&C Act because it is GRAS. To simplify the discussion in this document, in general,we refer to provisions of the 1997 proposed rule and issues for further comment from the perspective of the regulations that would be established in part 170 (21 CFR part 170). Unless we say otherwise, however, the issues discussed also apply to the corresponding provisions for part 570.
Under the proposed notification procedure, a GRAS notice would include: (1) A “GRAS exemption claim” in which a notifier would take responsibility for a GRAS determination; (2) information about the identity of the notified substance, including information about the method of manufacture (excluding any trade secrets); (3) information about any self-limiting levels of use; and (4) a comprehensive discussion of the basis for the GRAS determination. We would evaluate whether the notice provides a sufficient basis for a GRAS determination and would respond to the notifier in writing. We would immediately make available to the public the notice's “GRAS exemption claim” and our response to the notice, and disclose other releasable information in a notice in accordance with our regulations, in part 20 (21 CFR part 20), implementing the Freedom of Information Act.
We invited interested persons who determine that a use of a substance is GRAS to notify us of those determinations, under the framework of the 1997 proposed rule, during the interim between the proposed and final rules ( 62 FR 18938 at 18954). We said that we would determine whether our experience in administering such notices suggested that modifications to the proposed notification procedure were necessary ( 62 FR 18938 at 18954). During the period from February 1, 1999, through December 31, 2009 (the interim period), our Center for Food Safety and Applied Nutrition (CFSAN) received approximately 26 GRAS notices per year about substances intended for use in human food. The Center for Veterinary Medicine (CVM) established a pilot notification program only recently. ( See the Federal Register of June 4, 2010; 75 FR 31800 .)
The memorandum in reference 1 of this document describes CFSAN's experience (through December 31, 2009). In the remainder of this document, we refer to this memorandum as the “experience document.” Because CVM's pilot program began relatively recently, the experience document does not describe any experience under CVM's pilot notification program.
Also, from 2008 to 2010, the Government Accountability Office (GAO) conducted a study related to food ingredients determined to be GRAS and, in 2010, issued a report (Ref. 2, the GAO report) that included a number of recommendations for FDA's food ingredient program. FDA responded to the GAO's recommendations, and that response is also included in the GAO report.
Because of the length of time that has elapsed since publication of the 1997 proposed rule, we are interested in updating comments before issuing a final rule. In addition, based on CFSAN's experience with GRAS notices during the interim period, comments we received on the proposed rule, and GAO's recommendations, we have identified a number of issues within the scope of the proposed rule that may require further clarification. Specifically, these issues relate to the proposed revisions to § 170.30 (Issue 1), the proposed establishment of a notification procedure (Issues 2 through 16), and the effect of the proposed notification procedure on existing GRAS petitions (Issue 17). [2] Accordingly, we are requesting comments on the entire 1997 proposed rule as well as on the specific issues identified in this document.
Comments previously submitted to the Division of Dockets Management (previously the Dockets Management Branch), including comments submitted to the Division of Dockets Management after the comment period closed on July 16, 1997, but before December 28, 2010, do not need to be resubmitted in response to this notice because all such comments will be considered in any final rule based on the 1997 proposed rule and this document. [3]
A. Issue 1. Description of Common Knowledge Element and Related Definition of “Scientific Procedures” ?
In the 1997 proposed rule, we proposed to revise § 170.30 to broaden the description of the common knowledge element to clarify the types of technical evidence of safety that would form the basis of a GRAS determination, and to clarify the role of publication in satisfying the common knowledge element. Specifically, we proposed revising § 170.30(b) from “* * * ordinarily be based upon published studies which may be corroborated by unpublished studies and other data and information.” to “based upon generally available and accepted scientific data, information, methods, or principles, which ordinarily are published and may be corroborated by unpublished scientific data, information, or methods.” We also proposed a companion change to the definition of scientific procedures (§ 170.3(h)) from “Scientific procedures include those human, animal, analytical, and other scientific studies, whether published or unpublished, appropriate to establish the safety of a substance.” to “Scientific procedures include scientific data (such as human, animal, analytical, or other scientific studies), information, methods, and principles, whether published or unpublished, appropriate to establish the safety of a substance.”
Most of the comments addressing these proposed amendments supported the amendments. In general, these comments expressed the opinion that the proposed amendments would more accurately reflect the state of contemporary science than the provisions they would replace. One comment objected to the proposed amendment to § 170.30(b). This comment asserted that the proposed amendment would de-emphasize or eliminate the existing criterion for peer-reviewed studies. One comment objected to the proposed amendment to § 170.3(h) because, under the proposed amendment, an “unpublished principle” could inappropriately be considered a sufficient scientific procedure for demonstrating the safety of a food substance.
In light of these comments, we reviewed our proposed inclusion of scientific “principles” in the proposed amendments to §§ 170.3(h) and 170.30(b). “Principle” can be defined asa fundamental cause or basis of something; a primary element, force, or law determining a particular result; or a fundamental truth or proposition on which others depend (Shorter Oxford English Dictionary, 5th Edition, 2002). Thus, a principle is a different genre than data, information, and methods and is, by its very nature, generally available and accepted. An “unpublished principle” is a non-sequitur. Therefore, the adjectives “published” and “unpublished” should not modify scientific “principles.”
We also reviewed our use of the term “study” in the proposed companion change to the definition of scientific procedures. A procedure can be defined as a particular mode or course of action (Shorter Oxford English Dictionary, 5th Edition, 2002); a “study” can be defined as the devotion of time and attention to acquiring information or knowledge or as applying the mind to acquiring knowledge, especially devoting time and effort to this end (Id.). The terms “procedure” and “study” each carry the connotation of an action. However, “data and information” would be the outcome of a study or procedure and do not carry the connotation of an action. To be a “procedure,” data, information, methods or principles would need to be acquired or applied.
We are seeking comment on the use of those terms. For example, we are considering whether to revise the second sentence of § 170.30(b) to require that general recognition of safety through scientific procedures be based upon the application of generally available and accepted scientific data, information, or methods, which ordinarily are published, as well as the application of scientific principles, and may be corroborated by the application of unpublished scientific data, information, or methods. We also are considering whether to revise the definition of scientific procedures to include the application of scientific data (including, as appropriate, data from human, animal, analytical, and other scientific studies), information, and methods, whether published or unpublished, as well as the application of scientific principles, appropriate to establish the safety of a substance.
In the 1997 proposed rule, we used the terms “determine” and “determination” to describe the action of a person who informs us that the use of a food substance is GRAS under the proposed notification procedure. However, as discussed in the experience document, during the interim period CFSAN responded to approximately 5 percent of submitted GRAS notices with a letter informing the notifier that the notice did not provide a basis for a “GRAS determination” (Ref. 1). Clearly, in these cases it was CFSAN's view that the notifier had not “determined” GRAS status. To clarify that the submission of a GRAS notice reflects the view of the notifier and may not necessarily provide an adequate basis for a GRAS determination, we have tentatively concluded that the terms “conclude” and “conclusion” in lieu of “determine” and “determination” would be more appropriate, and therefore in this document we use the terms “conclude” and “conclusion.” We seek comment on these terms.
In the 1997 proposed rule, we did not propose definitions of terms that would be associated with the GRAS notification procedure. However, it would be consistent with the Plain Language Initiative for a final rule to include definitions of terms used in the rule. While the meanings of some terms (such as “notified substance”) were implicit in the discussion of the proposed notification procedure, to ensure the opportunity to comment on these definitions, we include them here. In addition, some terms not used in the 1997 proposed rule may be useful in light of comments already received. We seek comment on the definitions described in the following paragraphs.
(Issue 3a). “Amendment” and “supplement.” Several comments asked FDA to allow a notifier to address questions FDA had about a GRAS notice by submitting an amendment to the notice. As discussed in the experience document (Ref. 1), during the interim period several notifiers submitted one or more amendments to their GRAS notices. We would define “amendment” to mean any data or other information that you submit regarding a filed GRAS notice before we respond to the notice.
As discussed in the experience document (Ref. 1), during the interim period several notifiers submitted information to a GRAS notice after CFSAN responded to the notice. We would define “supplement” to mean any data or other information that you submit regarding a filed GRAS notice after we respond to the notice.
(Issue 3b) “Notified substance,” “notifier,” and “qualified expert.” We would define “notified substance” to mean the substance that is the subject of your GRAS notice. We would define “notifier” to mean the person who is responsible for the GRAS notice, even if another person (such as an attorney, agent, or qualified expert) prepares or submits the notice or provides an opinion about the basis for a conclusion of GRAS status. Consistent with section 201(s) of the FD&C Act ( 21 U.S.C. 321 (s)), we would define “qualified expert” to mean an individual who is qualified by scientific training and experience to evaluate the safety of substances added to food.
One comment requested that a notifier be permitted to reference a previously submitted GRAS notice to support a view that an additional use of the applicable substance is GRAS. In the comment's view, this process, known as “incorporation by reference,” would be administratively efficient. As discussed in the experience document (Ref. 1), during the interim period CFSAN encouraged notifiers to use a process such as that recommended in the comment.
We are therefore seeking comment on whether to include a provision in the final rule to expressly permit the notifier to incorporate by reference either data and information that were previously submitted by the notifier, or public data and information submitted by another party, when such data and information remain in our files, such as data and information contained in a previous GRAS notice, a food additive petition, or a food master file.
While the data and information in a previously submitted GRAS notice are generally publicly available, other data and information that have been submitted to us may be confidential. We do not anticipate that a notifier would have access to another party's confidential data or information.
We note that, regardless of whether a notifier incorporates by reference data or information, we may consider taking into account other relevant data or information that we have from other sources. As discussed in the experience document (Ref. 1), during the interim period CFSAN did review information that was available in its files but not available to the applicable notifier.
E. Issue 5. Request That FDA Cease To Evaluate a GRAS Notice ?
Several comments requested that the notification procedure provide for a notifier to withdraw a notice in light of our questions about the notice. These comments considered such a provision would provide the notifier with an opportunity to resubmit a notice addressing our questions.
Under § 20.29, no person may withdraw records submitted to FDA. While a notifier cannot withdraw a GRAS notice submitted to FDA, whenwe issued the proposed rule, we considered a request that FDA cease to evaluate a GRAS notice to be an implicit prerogative not needing explicit authorization in the rule. For GRAS notices that FDA has ceased to evaluate at the request of the notifier, the GRAS notices remain in our files and, thus, are available for public disclosure, subject to procedures established in part 20.
As discussed in the experience document (Ref. 1), at the request of the notifier, CFSAN ceased to evaluate approximately 16 percent of GRAS notices that came to closure by December 31, 2009. Persons who rely only on the provisions of proposed § 170.36, without referring to our letters responding to GRAS notices, may not be aware of the implicit prerogative to request that FDA cease to evaluate a GRAS notice.
Therefore, we are seeking comment on whether the rule should explicitly state that you may request in writing that we cease to evaluate your GRAS notice at any time during our evaluation of your GRAS notice.
F. Issue 6. Notifier's Responsibility for a GRAS Conclusion ?
(Issue 6a) Under proposed § 170.36(c)(1), the GRAS notice would be dated and signed by the notifier or by the notifier's attorney or agent or (if the notifier is a corporation) by an authorized official. As discussed in the experience document (Ref. 1), during the interim period CFSAN received some GRAS notices in which the combination of an illegible signature and the lack of a typed or printed name to accompany the signature made it impossible to identify the person who was signing the document. Therefore, we are seeking comment on how to best ensure that the identity and authority of the person who is signing the GRAS notice is made clear. For example, we are considering requiring that the GRAS notice state the name and the position or title of the person who signs it.
(Issue 6b) Under the GRAS affirmation petition process, a petitioner is required to submit a petition for GRAS affirmation under 21 CFR part 10 (§ 170.35(c)(1)(v)). As part of this petition, a petitioner is required to submit a statement that, “to the best of his knowledge, it [the GRAS affirmation petition] is a representative and balanced submission that includes unfavorable information, as well as favorable information, known to him and pertinent to the evaluation of the safety of the substance.” (§ 170.35(c)(1)(v)). We implicitly proposed this provision under proposed § 170.36(c)(4), which proposed to require, among other things, that a GRAS notice include a comprehensive discussion of any reports of investigations or other information that may appear to be inconsistent with the conclusion of GRAS status. We are seeking comment on whether the GRAS notification procedure should be as explicit on this point as the GRAS affirmation petition process it would replace.
We also are seeking comment on whether to require a notifier to certify to this statement, which would be consistent with the certification in item E. Certification in § 10.30(b). Such certification also would be consistent with the procedures established for another notification program in CFSAN, the premarket notification program for food contact substances. ( See § 171.101(e) and FDA Form No. 3480 (Ref. 4).)
G. Issue 7. Appropriately Descriptive Term for the Notified Substance ?
In the 1997 proposed rule, we proposed to require that the GRAS notice include the common or usual name of the notified substance (proposed § 170.36(c)(1)(ii)). We also advised that notifiers with questions concerning the common or usual name for a substance consult with CFSAN's Office of Food Labeling (now the Office of Nutrition, Labeling and Dietary Supplements) (for a substance that would be used in human food) or with CVM's Division of Animal Feeds (for a substance that would be used in animal food). [4] As discussed in the experience document (Ref. 1), in 2004, CFSAN began to routinely advise notifiers that its use of a particular term to identify the notified substance in a letter responding to a GRAS notice should not be considered an endorsement or recommendation of that term as an appropriate common or usual name for the purpose of complying with the labeling provisions of the FD&C Act.
A GRAS notice addresses sections 201(s) and 409 of the FD&C Act and does not address the labeling provisions of the FD&C Act or FDA's corresponding regulations. We are seeking comment on whether to revise proposed § 170.36(c)(1)(ii) to make this more clear. For example, instead of requiring that the GRAS notice include the common or usual name of the notified substance, we are considering requiring that the GRAS notice include the name of the notified substance, using an appropriately descriptive term. We note that this may be the same as the term which you may believe would be the common or usual name of the substance under 21 CFR parts 102 (human food) and 502 (animal food).
Under proposed § 170.36(f)(1), the elements listed in proposed § 170.36(c)(1)) would be immediately available for public disclosure on the date the notice is received. As a practical consequence of this proposed provision, the fact that we had received a GRAS notice ( i.e., the existence of the GRAS notice) would be immediately available to the public. As discussed in the experience document (Ref. 1), we have made this information readily accessible to the public. CFSAN currently is making a “GRAS Notice Inventory” available on its Internet site. CFSAN presents notice-specific information (such as the name and address of the notifier, the name of the notified substance, and the intended conditions of use) extracted from the information submitted under proposed § 170.36(c)(1). CFSAN expects that the ways by which we make this information readily accessible to the public will evolve over time.
Because, under proposed § 170.36(f)(1), the information submitted under proposed § 170.36(c)(1) would be immediately available for public disclosure, it is implicit in this provision that a person submitting information under proposed § 170.36(c)(1) should not include in this portion any non-public information such as trade secret information, confidential commercial or financial information, and personal privacy information. Based on our experience, notifiers did not identify any information in the information submitted under proposed § 170.36(c)(1) as being confidential. We are seeking comment on whether the final rule should explicitly require that the information submitted under proposed § 170.36(c)(1) exclude non-public information.
I. Issue 9. Including Confidential Information in a GRAS Notice ?
We proposed that the method of manufacture in a GRAS notice exclude any trade secrets (proposed § 170.36(c)(2)). However, we stated that a notifier who considers that certain information in a submission should not be available for public disclosure should identify as confidential the relevant portions of the submission for our consideration ( 62 FR 18938 at 18952). We further stated we would review the identified information, determinewhether that information is exempt from public disclosure under part 20 and release or protect the information in accordance with our determination. We advised that, in most cases, we would be likely to determine all information in a GRAS notice is available for public disclosure, because a conclusion of GRAS status must be based on generally available data and information.
We received several comments about whether confidential information should be included in a GRAS notice. In essence, these comments suggested that we both provide for the submission of trade secrets or other confidential information in a GRAS notice and protect the trade secrets or other confidential information from public disclosure, just as we would in the case of submissions such as food additive petitions.
As discussed in the experience document (Ref. 1), during the interim period CFSAN did accept some GRAS notices that included information identified by the notifier as confidential. When a GRAS notice included such information, in no case did CFSAN disclose the identified information. In some cases, including confidential information in a GRAS notice did not present a problem because it was corroborative information. However, in other cases CFSAN questioned whether there could be a basis for a conclusion of GRAS status if qualified experts generally did not have access to the confidential information.
In light of both the comments and CFSAN's experience, we are seeking comments relevant to including confidential information in a GRAS notice. We note that, while the decision to submit a GRAS notice would be voluntary, the provisions governing the GRAS notification procedure, including the information to be submitted, would be mandatory.
(Issue 9a) We are seeking comment on whether proposed § 170.36(c)(2) should stipulate that the method of manufacture exclude any trade secrets, as it was proposed.
(Issue 9b) We are seeking comment on whether to require that a notifier who identifies one or more trade secret(s), as defined in § 20.61(a), in the GRAS notice explain why it is trade secret information and how qualified experts could conclude that the intended use of the notified substance is GRAS without access to the trade secret(s).
(Issue 9c) We are seeking comment on whether to require that a notifier who identifies confidential commercial or financial information, as defined in § 20.61(b), in the GRAS notice explain why it is confidential commercial or financial information and how qualified experts could conclude that the intended use of the notified substance is GRAS without access to such information.
J. Issue 10. Describing the Identity of a Notified Substance ?
Under proposed § 170.36(c)(2), a GRAS notice would include “Detailed information about the identity of the notified substance, including, as applicable, its chemical name, Chemical Abstracts Service Registry Number, Enzyme Commission number, empirical formula, structural formula, quantitative composition, method of manufacture (excluding any trade secrets and including, for substances of natural biological origin, source information such as genus and species), characteristic properties, any content of potential human toxicants, and specifications for food-grade material.”
(Issue 10a) Based on our experience, we have found that when the source of a notified substance is a biological material ( e.g., a plant, animal, or microorganism), taxonomic information about genus and species may be insufficient to identify a biological source. The experience document (Ref. 1) provides examples of GRAS notices including information such as genus, species, variety, strain, part of a plant source (such as fruit, seeds or seed husks, expressed oil, flowers, roots, leaves, pulp, wood, or bark), and part of an animal source (such as fluid, muscle mass, egg, shells, or extracted oil). We note that some GRAS substances are derived from animal organs ( e.g., the enzyme preparation “catalase” is manufactured from cow's liver ( 21 CFR 184.1034 )) or tissue ( e.g., the enzyme preparation “animal lipase” is manufactured from edible forestomach tissue or from animal pancreatic tissue ( 21 CFR 184.1415 )). We request comment on what scientific information would be sufficient to identify the biological source.
(Issue 10b) Based on our experience, we have found that information about substances known to be toxicants is relevant regardless of the state of the science regarding the specific toxicity of the substance to humans. For example, during the interim period CFSAN evaluated a GRAS notice about a substance derived from a biological source that is known to contain mutagenic substances (Ref. 1). Therefore, we are seeking comment on whether to require that information about the identity of the notified substance specify any known toxicants that could be in the source.
(Issue 10c) Substances that have a small particle size often have chemical, physical, or biological properties that are different from those of their larger counterparts (Ref. 5) and, thus, particle size and associated chemical and physical properties may be relevant to the identity of the notified substance. GAO's recent recommendations also encouraged us to obtain more information about the use of engineered nanomaterials (Ref. 2). Therefore, we are seeking comment on whether the final rule should address, as part of identity, particle size and other chemical and physical properties that may be used to characterize engineered materials.
We proposed to require that a notice regarding a conclusion of GRAS status through scientific procedures include a comprehensive discussion of, and citations to, generally available and accepted scientific data, information, methods, or principles that the notifier relies on to establish safety, including a consideration of the “probable consumption of the substance and the probable consumption of any substance formed in or on food because of its use and the cumulative effect of the substance in the diet, taking into account any chemically or pharmacologically related substances in such diet” (proposed § 170.36(c)(4)(i)(A)). This proposed provision restated the statutory language of section 409(c)(5) of the FD&C Act regarding dietary exposure.
We proposed to require that a notice regarding a conclusion of GRAS status through experience based on common use in food include a comprehensive discussion of, and citations to, generally available data and information that the notifier relies on to establish safety, including evidence of a substantial history of consumption of the substance by a significant number of consumers [5] (proposed § 170.36(c)(4)(ii)(A)). This proposed provision was silent on the probable consumption of the substance by present-day consumers.
We are seeking comment on issues related to the proposed provisions for information about dietary exposure to a notified substance.
(Issue 11a) We are seeking comment on whether proposed § 170.36(c)(4)(i)(A) should continue to restate the statutory language of section 409(c)(5) of the FD&C Act or whether this provision should be stated more clearly, for example, by requiring information aboutdietary exposure ( i.e., the amount of the notified substance that consumers are likely to eat or drink as part of a total diet).
(Issue 11b) Over 50 years have passed since passage of the 1958 Food Additives Amendment establishing the requirements for food additives and the corresponding provisions for GRAS substances in food. In evaluating whether use of a substance is GRAS through experience based on common use in food, we rely on information documenting that the “common use in food” of a substance satisfies the definition in § 170.3(f) such that adverse health effects, if they occurred, could be noted. In other words, a substance is not eligible for GRAS status merely because it was used in food before January 1, 1958, if such use were not sufficiently widespread ( 62 FR 18938 at 18949). Therefore, we are seeking comment on whether a GRAS notice should be required to include information about dietary exposure to contemporary consumers regardless of whether the determination of GRAS status is through scientific procedures or through experience based on common use in food.
(Issue 11c) Some substances are administered to certain animal species through their drinking water. Section 201(f) of the FD&C Act defines food as “articles used for food or drink for man or other animals.” In the proposed rule, we utilized the terms, “foods” and “diet,” when addressing the intended use and safety evaluation of notified substances. We are seeking comment on whether it is necessary to clarify that the GRAS notification procedure is applicable to substances used in both food and drinking water of animals and, if so, whether it would be necessary to clarify this in the provisions of proposed § 570.36.
(Issue 11d) Under proposed § 570.36(c)(1)(iii), notifiers would submit information about the applicable conditions of use of the notified substance, including a description of the population expected to consume the substance. For substances added to animal food, the applicable population is the specific animal species intended to consume the substance. Animal species differ in their physical characteristics, digestive physiology, and metabolic pathways. Therefore, a substance that is safe for use in one animal species may not be safe for use in other species, and FDA would need to know the intended species in order to properly evaluate the notifier's safety assessment of the intended use of the substance. We are seeking comment on whether it is necessary to clarify proposed § 570.36(c)(1)(iii) to explicitly require submission of information about the animal species expected to consume the substance.
(Issue 11e) Proposed § 570.36(c)(2) would require that notifiers submit detailed information about the notified substance, including any content of potential human or animal toxicants. Additionally, proposed §§ 570.36(c)(4)(i)(A) and (c)(4)(ii)(A) would require that notifiers submit a comprehensive discussion of, and citations to, the information that the notifier relies on to establish safety. Where a substance is intended for use in the food of an animal used to produce human food, these sections of the proposed rule would require that the notifier include citations to information about both target animal ( i.e., the specific animal species that are fed the notified substance) and human safety. The information provided would need to be sufficient to show that the use of the substance is generally recognized among qualified experts to be safe for animals consuming food containing the substance as well as for humans consuming food derived from such animals ( i.e., under its intended conditions of use). A GRAS notice for a substance intended for use in the food of an animal used to produce human food submitted without such information would likely receive a response from FDA stating that FDA has identified questions regarding whether the intended use of the substance is GRAS. ( See the proposed rule ( 62 FR 18938 at 18950).) Therefore, we are seeking comment on whether it is necessary to clarify applicable sections of the proposed rule to explicitly require, for substances intended for use in the food of an animal used to produce human food, the submission of information about both target animal and human safety.
Some comments to the 1997 proposed rule recommended that we conduct a preliminary review of a submission, before we file it as a GRAS notice, to determine whether it appears, on its face, to meet the format requirements. Some comments suggested that we “decline to file” a notice that appears to be inadequate, e.g., because it lacks critical data or information. These comments considered that a preliminary review that resulted in a “filing decision” would be analogous to the current procedure whereby we review a GRAS affirmation petition to determine whether it appears, on its face, to meet the format requirements for the GRAS affirmation petition process.
As discussed in the experience document (Ref. 1), CFSAN routinely conducted such a preliminary review of each submitted GRAS notice. Based on our experience, it was the complete evaluation process that identified those data or information that are critical to establish GRAS status. Therefore, a decision on our part to file a submission as a GRAS notice has not reflected our judgment as to whether the notice addressed all issues or discussed all critical data or information.
We are seeking comment on whether we should make explicit the process by which FDA makes such a filing decision, including the factors we should use to determine whether to file a submission as a GRAS notice. Some potential factors could be the following:
• Whether your submission includes all required sections;
• Whether you provided all required copies;
• Where information provided is identified as being confidential, whether you explain the basis for your conclusion of GRAS status;
• Whether we still retain as a record any data or information that you ask us to incorporate by reference; and
• Whether the subject of your submission is: (1) Already authorized for use under our regulations or (2) a mixture of substances that are already authorized for use under our regulations. For example, if we receive a submission about a mixture of substances, each of which is affirmed as GRAS under 21 CFR part 184 for use as an antimicrobial in human food, and the intended use of the mixture is as an antimicrobial, we may treat the submission as general correspondence and inform the notifier that we do not devote resources to evaluating the use of such mixtures under the GRAS notification procedure.
M. Issue 13. Substances Intended for Use in Products Subject to Regulation by the U.S. Department of Agriculture ?
Subsequent to the 1997 proposal, we issued a final rule amending the GRAS affirmation petition process to provide for simultaneous review of a GRAS notice by FDA and the U.S. Department of Agriculture's (USDA's) Food Safety and Inspection Service (FSIS) when the intended use of the notified substance includes use in products subject to regulation by FSIS ( 65 FR 51758 , August 25, 2000). Under § 170.35(c)(3)(i), we forward a copy of a GRAS affirmation petition to FSIS for simultaneous review under the Poultry Products Inspection Act (PPIA) ( 21 U.S.C 451 et seq. ) or the Federal Meat Inspection Act (FMIA) ( 21 U.S.C. 601 et seq. ). Under§ 170.35(c)(3)(ii), we ask USDA to advise whether the proposed uses comply with the FMIA or PPIA or, if not, whether use of the substance would be permitted in products under USDA jurisdiction under specified conditions or restrictions. The provisions of this review process reflect interagency coordination to ease the burden on regulated industries and consumers.
In addition, as discussed in the experience document (Ref. 1), during the interim period CFSAN developed a Memorandum of Understanding (MOU) with USDA's FSIS ( 65 FR 33330 , May 23, 2000), which provides for the same coordinated review process for GRAS notices when the intended use of the notified substance includes use in products subject to regulation by FSIS. Under the terms of the MOU, CFSAN forwards a copy of an applicable GRAS notice to FSIS. CFSAN then simultaneously evaluates the basis for GRAS status while FSIS evaluates whether the intended use of the notified substance in meat or poultry products complies with the FMIA or PPIA or, if not, whether use of the substance would be permitted in products under FSIS jurisdiction under specified conditions or restrictions. In addition, during the interim period responsibility to administer the Egg Products Inspection Act (EPIA) ( 21 U.S.C. 1031 et seq. ) was transferred from the Agricultural Marketing Service of USDA to FSIS ( 69 FR 1647 ; January 12, 2004). In light of this transfer of responsibility, FSIS provided its review of the use of a notified substance in egg products when a GRAS notice that CFSAN sent to USDA for its review under the PPIA or the FMIA also described a use in egg products (Ref. 1).
As discussed in the experience document (Ref. 1), more than 25 percent of GRAS notices filed during the interim period included the use of the notified substance in products subject to regulation by FSIS under the FMIA or the PPIA, and FDA obtained FSIS review for these substances.
We are seeking comment on whether to make our coordinated review process with FSIS explicit in the final rule. We also are seeking comment on whether such a procedure should provide that a notifier who submits a GRAS notice for the use of a notified substance in products subject to regulation by FSIS provide an additional paper copy or an electronic copy of the GRAS notice that we could send to FSIS. This would improve the efficiency of a simultaneous review process. We note that FSIS, under statutes it administers, does not review the use of substances intended for use in food for animals and therefore there would be no need for a counterpart provision in proposed § 570.36 for substances intended for use in food for animals.
O. Issue 14. Timeframe for FDA's Evaluation of a GRAS Notice ?
Section 170.35 does not specify a timeframe for FDA to complete the rulemaking associated with a GRAS affirmation petition. However, we proposed to respond to a GRAS notice within 90 days to reflect both a commitment to operational efficiency and a belief that our evaluation of whether a notice provides a sufficient basis for a conclusion of GRAS status could likely be accomplished in such a period. We also considered whether the timeframe for our response should be longer than 90 days, and specifically requested comment on whether the proposed 90-day timeframe for an Agency response should be lengthened, e.g., to 120 days or 150 days. In addition, we noted that comments on the proposal may justify a longer timeframe for notifications concerning substances used in animal food.
Several comments favored a 90-day timeframe because a 90-day timeframe would provide an incentive for manufacturers to submit GRAS notices. Other comments questioned whether the proposed 90-day timeframe would allow sufficient time for us to adequately evaluate a GRAS notice and urged us to establish a realistic timeframe that we would hold ourselves accountable to.
As shown in the experience document (Ref. 1), during the interim period CFSAN responded to approximately 12 percent of GRAS notices within 90 days, and required more than 180 days to respond to more than 31 percent of GRAS notices. As discussed in the experience document (Ref. 1), the scientific challenges associated with the safety assessment conducted by the notifier were a factor in the time CFSAN needed to respond to a GRAS notice. We request comment on whether we should retain a set timeframe for us to respond to a GRAS notice, and, if so, whether it should be 90 days or another timeframe.
In the GAO report (Ref. 2), GAO noted that we have not issued any conflict of interest guidance that companies can use to help ensure that the members of their expert panels are independent. Further, GAO recommended that FDA develop a strategy to minimize the potential for conflicts of interest, including taking steps such as issuing guidance for companies on conflict of interest and requiring information in GRAS notices regarding expert panelists' independence. As discussed in the GAO report (Ref. 2), we consider that the use of an expert panel is one way to demonstrate consensus ( i.e., the common knowledge element of safety) and we do not consider the view of an expert panel alone to be determinative for establishing safety. We seek comment on whether companies would find it useful to have guidance on potential conflicts of interest of GRAS expert panelists. If such guidance would be useful, we seek comment on what companies currently do to mitigate such a conflict. We also seek comment on whether to require that GRAS notices include information regarding expert panelists' independence.
P. Issue 16. Additional Guidance on Documenting GRAS Conclusions ?
The GAO report recommended that FDA issue guidance on how to document GRAS conclusions (Ref. 2). In our response to GAO, we noted the guidance in the preamble to the GRAS proposal and the guidance on our Web site that answers common questions about the food ingredients classified as GRAS in the form of frequently asked questions (Ref. 6). We seek comment whether there is a need to clarify that this guidance also applies to a GRAS conclusion that is not submitted to FDA under the proposed notification procedure and whether there is a need for FDA to develop further guidance on documenting such a GRAS conclusion.
In the 1997 proposed rule, we proposed to presumptively convert any filed, GRAS affirmation petition that is pending on the effective date of the rule (hereinafter referred to as a “pending petition”) to a GRAS notice. The conversion would take place on the effective date of the final rule. Any person (hereinafter referred to as an “affected petitioner”) who had submitted a GRAS affirmation petition could amend the converted petition by submitting the dated and signed document that would be required under proposed § 170.36(c)(1). In essence, we would waive the requirement for an affected petitioner who submitted such a document to agree to provide us with access to applicable data and information upon request if the affected petitioner informed us that the complete record that supports the conclusion of GRAS status had been submitted in the applicable GRAS petition. The proposed procedures for our review and administration of a converted petition would be similar to those for a newlysubmitted GRAS notice. However, by 90 days after the effective date of the final rule, [6] we would inform any affected petitioner who had not submitted a certification that the converted petition was inadequate as a notice.
A few comments stated that the 1997 proposed rule did not discuss the fate of a pending petition if the petitioner elected not to submit a conversion amendment. These comments did not understand the implications of the proposed provisions which, in essence, would consider that the affected petitioner had not provided a basis for a conclusion of GRAS status.
Many comments objected to the proposed provisions regarding pending petitions. In general, these comments expressed the opinion that our proposal was fundamentally unfair to an affected petitioner because an affected petitioner had invested considerable time and resources in the petition process. Some comments suggested that we “grandfather” a pending petition ( i.e., complete the rulemaking that began under the petition process), as a matter of course, in those circumstances where we had completed our scientific review and had no outstanding scientific questions. Other comments suggested that such a “grandfather” provision be an option available to an affected petitioner rather than a matter of course. One comment recommended that the final rule provide a petitioner with a period of 180, rather than 90, days to submit the dated and signed document providing information in proposed § 170.36(c)(1). This comment argued that many of these petitions had been pending for years, that the subjects of the petitions had been marketed during those years, and that there would therefore be no urgency in closing the applicable files.
In light of the view of the comments that our proposed disposition of pending petitions was unfair, in this document we are seeking comments regarding pending petitions. Specifically, we seek comment on how to reduce the impact on affected petitioners while retaining the principle that we will not devote resources to pending petitions. We seek comment on whether an outcome of “withdrawal without prejudice” instead of “insufficient basis” would be more appropriate when an affected petitioner simply chooses not to have the pending petition considered under the GRAS notification procedure. We are seeking comment on whether an affected petitioner could request that we incorporate by reference a withdrawn GRAS affirmation petition into a GRAS notice, and if so, if any requirements of the GRAS notification procedure should be waived.
We also note that, as discussed in the experience document (Ref. 1), during the interim period we processed a pending petition as a food additive petition and issued a food additive regulation for the petitioned substance ( 21 CFR 172.780 ; 70 FR 8032 , February 17, 2005). We note that CVM has no pending GRAS petitions and thus, this discussion is not applicable to GRAS affirmation petitions for food for animals.
FDA requests comments on how the issues discussed in this document could affect the costs and benefits estimated in the 1997 proposed rule, e.g., whether these issues would result in costs or benefits that would be either greater than, or less than, those estimated in the 1997 proposed rule ( 62 FR 18938 at 18958).
The 1997 proposed rule contains information collection provisions that are subject to review by the Office of Management and Budget under the Paperwork Reduction Act of 1995 ( 44 U.S.C. 3501 -3520). Interested persons are requested to send comments regarding information collection to FDA ( see DATES and ADDRESSES ).
Interested persons may submit to the Division of Dockets Management ( see ADDRESSES ) either electronic or written comments regarding this document. It is only necessary to send one set of comments. It is no longer necessary to send two copies of mailed comments. Identify comments with the docket number found in brackets in the heading of this document. Received comments may be seen in the Division of Dockets Management between 9 a.m. and 4 p.m., Monday through Friday.
We have placed the following references on display in the Division of Dockets Management ( see ADDRESSES ). You may see them between 9 a.m. and 4 p.m., Monday through Friday. (FDA has verified the Web site addresses, but FDA is not responsible for any subsequent changes to Web sites after this document publishes in the Federal Register. )
1. Experience With GRAS Notices Under the 1997 Proposed Rule, Memorandum Dated November 4, 2010, from Linda S. Kahl of FDA to Docket No. FDA-1997-N-0020.
2. United States Government Accountability Office, Report to Congressional Requestors on Food Safety: FDA Should Strengthen Its Oversight of Food Ingredients Determined To Be Generally Recognized as Safe (GRAS), Report No. GAO-10-246, February 2010, Accessible at http://www.gao.gov/new.items/d10246.pdf , Accessed and printed on May 3, 2010.
3. Memorandum for the Heads of Executive Departments and Agencies, Dated June 1, 1998, Signed by President William J. Clinton, Accessible at http://www.plainlanguage.gov/whatisPL/govmandates/memo.cfm , Accessed and printed on July 14, 2008.
1 . As an error, the authority citation we listed for the proposed amendments to part 570 (21 CFR part 570) did not include an existing authority citation, i.e., section 408 of the Federal Food, Drug, and Cosmetic Act (the FD&C Act) ( 21 U.S.C. 346 a). Nothing in the 1997 proposed rule would alter the citation to section 408. Therefore, the authority citation for part 570 will continue to include section 408.
2 . With regard to GAO's recommendations, we are requesting comment on the recommendations that FDA obtain more information about the use of engineered nanomaterials (Issue 10(c)), that FDA strive to minimize the potential for conflict of interest (Issue 15), and that FDA issue guidance on how to document GRAS determinations (Issue 16). GAO also recommended that FDA develop a strategy to finalize the proposal to establish a notification program for GRAS ingredients, and this notice reopening the comment period is the first step of such a strategy. FDA is not seeking comment on the remaining GAO recommendations, that FDA request that any company conducting a GRAS determination provide the Agency with basic information about that determination, and that FDA develop a strategy to reconsider the safety of certain GRAS substances. We consider those recommendations, and any comments on them, to be beyond the scope of this comment request because they raise issues about matters other than how a notification program should be run.
3 . After we issued the 1997 proposed rule, a Presidential Memorandum dated June 1, 1998 (the Plain Language Memorandum) (Ref. 3) prescribed a government-wide initiative (the Plain Language Initiative, or “PLI”) to write regulations using “Plain Language.” As outlined in that memorandum, documents written in plain language use “you” and other pronouns. Any final rule based on the 1997 proposed rule and this document would use such pronouns.
4 . For example, a notifier may have a question about the common or usual name where it is not established by regulation.
5 . In this document, references to “consumers” for the purposes of part 170 are references to “animals” for the purposes of part 570.
6 . Proposed § 170.36(g)(3)(iii) stated that we would inform a petitioner who did not submit a conversion amendment that the notice was inadequate within 90 days of publication of the final rule, rather than within 90 days of the effective date of the final rule. This was an error.
Dear EarthTalk: What is happening to update and reform the Toxic Substances Control Act of 1976, which I understand is considerably outdated and actually permits the use of thousands of chemicals that have never been adequately tested for safety?
- Henry Huse, Norwalk, Conn.
According to the Natural Resources Defense Council (NRDC), a leading environmental research and advocacy organization, upwards of 80,000 chemicals commonly used in the United States have never been fully assessed for toxic impacts on human health and the environment. "Under the current law, it is almost impossible for the EPA (U.S. Environmental Protection Agency) to take regulatory action against dangerous chemicals, even those that are known to cause cancer or other serious health effects," reports the group.
1976's Toxic Substances Control Act (TSCA) was intended to protect people and the environment from exposure to dangerous chemicals. But the standards at that time dictated that only those chemicals deemed an "unreasonable risk" were subject to testing and regulation. When the law went into effect, some 62,000 chemicals escaped testing and most have remained on the market ever since. In the interim, however, we have learned that many of them have been linked to hormonal, reproductive and immune problems, cancer, and a plethora of environmental problems.
And since 1976, an additional 22,000 chemicals have been introduced without any testing for public or environmental safety. Some of the potentially worst offenders can be found in cleaning and personal care products, furniture, building materials, electronics, food and drink containers, and even kids' toys.
"The law is widely considered to be a failure and, most recently, the Environmental Protection Agency's own Inspector General found it inadequate to ensure that new chemicals are safe," reports NRDC, which is not the only group concerned about beefing up TSCA. The Safer Chemicals, Healthy Families Coalition includes more than 200 nonprofits - including Physicians for Social Responsibility, the U.S. Public Interest Research Group (USPIRG), the Environmental Defense Fund and the Lung Cancer Alliance, among many others - representing a collective membership of more than 11 million individual parents, health professionals, advocates for people with learning and developmental disabilities, reproductive health advocates, environmentalists and businesspersons from across the country.
By banding together, coalition leaders hope to convince Congress to fix the problem by finally updating TSCA and creating the "foundation for a sound and comprehensive chemicals policy that protects public health and the environment, while restoring the luster of safety to U.S. goods in the world market."
Specifically, the coalition is lobbying Congress to revamp TSCA so that the most dangerous chemicals are phased out or banned outright and that others are tested and regulated accordingly, all the while ensuring the public's right-to-know about the safety and use of chemicals in everyday products. Also, the coalition is calling for federal funding to expand research into greener alternative chemicals to replace those with known health hazards.
Cum homine de cane debeo congredi - [qui tam] - Excuse me. I've got to see a man about a dog -[
a private individual, or " whistleblower ,"]
Bella detesta matribus - Wars, the horror of mothers. (Horace) Bella gerant alii - Let others wage war Bellum omium contra omnes - Everyman's struggle against everyman. (Thomas Hobbes) Belua multorum es capitum - The people are a many-headed beast Bene legere saecla vincere - To read well is to master the ages. (Professor Isaac Flagg) Bene qui latuit, bene vixit - One who lives well, lives unnoticed. (Ovid) Bene, cum Latine nescias, nolo manus meas in te maculare - Well, if you don't understand plain Latin, I'm not going to dirty my hands on you Bene - Good Beneficium accipere libertatem est vendere - To accept a favour is to sell freedom. (Publilius Syrus) Bibere venenum in auro - Drink poison from a cup of gold
When the Constitutional Convention closed, the signers of the new Constitution returned to their states and began campaigning for the acceptance of a new, stronger, more centralized government. The active supporters for the new constitution came to be called Federalists. Three of them, John Jay, Alexander Hamilton and James Madison, published articles in local newspapers across the thirteen states; the essays carefully arguing for a new federal government were later called the Federalist papers. Opposition was very strong. The Americans had fought through the long revolution, lived through the painful recovering from a destructive war and were building a new economy; they did not want a strong, centralized government because they embraced self-government and hated dictatorial kings and tyrannical parliaments. The Federalists had to persuade the Americans that the new government would not diminish the sovereignty of the states and civil liberty would be fully protected. In each of the state conventions called to ratify or not to ratify the new Constitution, supporters promised a bill of rights added to the new constitution. New York was the required 11 th state to ratify the Constitution in July of 1788 and national elections were held in January of 1789. The new congress wrote the ten promised amendments to the Constitution in the same year. The original delegates had thought deeply about protecting civil liberties and had written fundamentals into the original body of the Constitution. They believed in natural rights, those called “unalienable Rights” granted to mankind by the Creator as stated in the Declaration of Independence (as elaborated by John Locke at an earlier time). The “the rights of Englishmen” are to be found in English law since the Magna Carta had been promulgated in 1215. This blocking of absolute rule was part of the very fabric of the delegates' beings. The unwritten English constitution, the common law and the forbidden of absolutism in central government had come to these shores with the colonists from the beginning. The formal establishment of “the rights of Englishmen” in the colonies had occurred with the creation of the Virginia House of Burgesses in 1619, continuing their protection against tyranny. More than anything else, their self-governance had set them apart from their Spanish and French neighboring colonists. By the time of the Revolution, the English colonists had outstripped all of their neighbors in population and wealth. Even so, some of the revolutionist generation were not confident that there were sufficient protections against tyranny in the Constitution, and the Bill of Rights was the consequence. Echoes of the Magna Carta and the “rights of Englishmen” over time are in the First Amendment, guaranteeing the freedom of religion, speech, the press and peaceable assembly and the right to petition. Reflections of relatively recent events to the founding generation can be seen in the Second Amendment. It guarantees the right to self-defense, the population keenly aware of the English government's establishment of a permanent army and the occupying army's mission to take arms, the freed Americans would never allow any government to disarm them. The Fifth Amendment protects the individual's right to property. The next three amendments are concerned with due process of law, as is the Fifth---the right to know what you are charged with, jury trials where you can answer charges, reasonable bail and protection from cruel and unusual punishments. The Ninth Amendment repeats and underlines the consensus that our rights are NOT limited to those protected by the Constitution; rights that are not written about or unnamed in the Constitution remain as real and as important as any of them mentioned or named in the Constitution. The Tenth Amendment, then, repeats, underlines and clearly restates the fact that powers not delegated to the United States nor prohibited to the states are reserved to the states or to the people. “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” The Tenth Amendment is Federalism; it is our final hope to save the American Republic. Federalism means that an individual lives under two systems of laws and two governmental structures. Each of us is a citizen of a state and of the United States. In federal, that is, in matters that are beyond intrastate matters, like interstate commerce and national defense and foreign trade and foreign treaties, federal law will prevail. Otherwise, intrastate laws govern our daily lives, as in the original Constitution. The founders of the Republic, including the majority of colonists who accepted this Constitution, took it granted that the Constitution limits government power and the local, that is, the states, would retain more governmental power than the created federal government had or would have. The Bill of Rights was intended to reassure the people that they and their states will not lose their freedom to the stronger, nationalized government created by this Constitution.
In Federalist #45, James Madison, the “father of the Constitution”, writes this:
“The powers delegated by the proposed Constitution to the federal government, are few and defined. Those which are to remain in the State governments are numerous and indefinite. The former will be exercised principally on external objects, as war, peace, negotiation, and foreign commerce, with which last the power of taxation will for the most part be connected. The powers reserved to the several States will extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people, and the internal order, improvement, and prosperity of the State.”
His purpose in #45 is to explain that “(t)he State government will have the advantage (over) the Federal government.” Unfortunately, the states' advantage over the Feds has been eroded through ceaseless overreaching by the central government for the last hundred years, and we are at the crisis point. I want to look at the encroaching on our self-governance and civil liberties over the past hundred years in Constitution Post 3 that I will try to post tomorrow. I will draw on a resource available at the website for The Texas Public Policy Foundation, www.texaspolicy.com , a think tank that I strongly urge you to support.
Pam Fowler
The Federalist No. 35
Concerning the General Power of Taxation (continued)
Independent Journal
Saturday, January 5, 1788
[Alexander Hamilton]
To the People of the State of New York:
BEFORE we proceed to examine any other objections to an indefinite power of taxation in the Union, I shall make one general remark; which is, that if the jurisdiction of the national government, in the article of revenue, should be restricted to particular objects, it would naturally occasion an undue proportion of the public burdens to fall upon those objects. Two evils would spring from this source: the oppression of particular branches of industry; and an unequal distribution of the taxes, as well among the several States as among the citizens of the same State.
Suppose, as has been contended for, the federal power of taxation were to be confined to duties on imports, it is evident that the government, for want of being able to command other resources, would frequently be tempted to extend these duties to an injurious excess. There are persons who imagine that they can never be carried to too great a length; since the higher they are, the more it is alleged they will tend to discourage an extravagant consumption, to produce a favorable balance of trade, and to promote domestic manufactures. But all extremes are pernicious in various ways. Exorbitant duties on imported articles would beget a general spirit of smuggling; which is always prejudicial to the fair trader, and eventually to the revenue itself: they tend to render other classes of the community tributary, in an improper degree, to the manufacturing classes, to whom they give a premature monopoly of the markets; they sometimes force industry out of its more natural channels into others in which it flows with less advantage; and in the last place, they oppress the merchant, who is often obliged to pay them himself without any retribution from the consumer. When the demand is equal to the quantity of goods at market, the consumer generally pays the duty; but when the markets happen to be overstocked, a great proportion falls upon the merchant, and sometimes not only exhausts his profits, but breaks in upon his capital. I am apt to think that a division of the duty, between the seller and the buyer, more often happens than is commonly imagined. It is not always possible to raise the price of a commodity in exact proportion to every additional imposition laid upon it. The merchant, especially in a country of small commercial capital, is often under a necessity of keeping prices down in order to a more expeditious sale.
The maxim that the consumer is the payer, is so much oftener true than the reverse of the proposition, that it is far more equitable that the duties on imports should go into a common stock, than that they should redound to the exclusive benefit of the importing States. But it is not so generally true as to render it equitable, that those duties should form the only national fund. When they are paid by the merchant they operate as an additional tax upon the importing State, whose citizens pay their proportion of them in the character of consumers. In this view they are productive of inequality among the States; which inequality would be increased with the increased extent of the duties. The confinement of the national revenues to this species of imposts would be attended with inequality, from a different cause, between the manufacturing and the non-manufacturing States. The States which can go farthest towards the supply of their own wants, by their own manufactures, will not, according to their numbers or wealth, consume so great a proportion of imported articles as those States which are not in the same favorable situation. They would not, therefore, in this mode alone contribute to the public treasury in a ratio to their abilities. To make them do this it is necessary that recourse be had to excises, the proper objects of which are particular kinds of manufactures. New York is more deeply interested in these considerations than such of her citizens as contend for limiting the power of the Union to external taxation may be aware of. New York is an importing State, and is not likely speedily to be, to any great extent, a manufacturing State. She would, of course, suffer in a double light from restraining the jurisdiction of the Union to commercial imposts.
So far as these observations tend to inculcate a danger of the import duties being extended to an injurious extreme it may be observed, conformably to a remark made in another part of these papers, that the interest of the revenue itself would be a sufficient guard against such an extreme. I readily admit that this would be the case, as long as other resources were open; but if the avenues to them were closed, HOPE, stimulated by necessity, would beget experiments, fortified by rigorous precautions and additional penalties, which, for a time, would have the intended effect, till there had been leisure to contrive expedients to elude these new precautions. The first success would be apt to inspire false opinions, which it might require a long course of subsequent experience to correct. Necessity, especially in politics, often occasions false hopes, false reasonings, and a system of measures correspondingly erroneous. But even if this supposed excess should not be a consequence of the limitation of the federal power of taxation, the inequalities spoken of would still ensue, though not in the same degree, from the other causes that have been noticed. Let us now return to the examination of objections.
One which, if we may judge from the frequency of its repetition, seems most to be relied on, is, that the House of Representatives is not sufficiently numerous for the reception of all the different classes of citizens, in order to combine the interests and feelings of every part of the community, and to produce a due sympathy between the representative body and its constituents. This argument presents itself under a very specious and seducing form; and is well calculated to lay hold of the prejudices of those to whom it is addressed. But when we come to dissect it with attention, it will appear to be made up of nothing but fair-sounding words. The object it seems to aim at is, in the first place, impracticable, and in the sense in which it is contended for, is unnecessary. I reserve for another place the discussion of the question which relates to the sufficiency of the representative body in respect to numbers, and shall content myself with examining here the particular use which has been made of a contrary supposition, in reference to the immediate subject of our inquiries.
The idea of an actual representation of all classes of the people, by persons of each class, is altogether visionary. Unless it were expressly provided in the Constitution, that each different occupation should send one or more members, the thing would never take place in practice. Mechanics and manufacturers will always be inclined, with few exceptions, to give their votes to merchants, in preference to persons of their own professions or trades. Those discerning citizens are well aware that the mechanic and manufacturing arts furnish the materials of mercantile enterprise and industry. Many of them, indeed, are immediately connected with the operations of commerce. They know that the merchant is their natural patron and friend; and they are aware, that however great the confidence they may justly feel in their own good sense, their interests can be more effectually promoted by the merchant than by themselves. They are sensible that their habits in life have not been such as to give them those acquired endowments, without which, in a deliberative assembly, the greatest natural abilities are for the most part useless; and that the influence and weight, and superior acquirements of the merchants render them more equal to a contest with any spirit which might happen to infuse itself into the public councils, unfriendly to the manufacturing and trading interests. These considerations, and many others that might be mentioned prove, and experience confirms it, that artisans and manufacturers will commonly be disposed to bestow their votes upon merchants and those whom they recommend. We must therefore consider merchants as the natural representatives of all these classes of the community.
With regard to the learned professions, little need be observed; they truly form no distinct interest in society, and according to their situation and talents, will be indiscriminately the objects of the confidence and choice of each other, and of other parts of the community.
Nothing remains but the landed interest; and this, in a political view, and particularly in relation to taxes, I take to be perfectly united, from the wealthiest landlord down to the poorest tenant. No tax can be laid on land which will not affect the proprietor of millions of acres as well as the proprietor of a single acre. Every landholder will therefore have a common interest to keep the taxes on land as low as possible; and common interest may always be reckoned upon as the surest bond of sympathy. But if we even could suppose a distinction of interest between the opulent landholder and the middling farmer, what reason is there to conclude, that the first would stand a better chance of being deputed to the national legislature than the last? If we take fact as our guide, and look into our own senate and assembly, we shall find that moderate proprietors of land prevail in both; nor is this less the case in the senate, which consists of a smaller number, than in the assembly, which is composed of a greater number. Where the qualifications of the electors are the same, whether they have to choose a small or a large number, their votes will fall upon those in whom they have most confidence; whether these happen to be men of large fortunes, or of moderate property, or of no property at all.
It is said to be necessary, that all classes of citizens should have some of their own number in the representative body, in order that their feelings and interests may be the better understood and attended to. But we have seen that this will never happen under any arrangement that leaves the votes of the people free. Where this is the case, the representative body, with too few exceptions to have any influence on the spirit of the government, will be composed of landholders, merchants, and men of the learned professions. But where is the danger that the interests and feelings of the different classes of citizens will not be understood or attended to by these three descriptions of men? Will not the landholder know and feel whatever will promote or insure the interest of landed property? And will he not, from his own interest in that species of property, be sufficiently prone to resist every attempt to prejudice or encumber it? Will not the merchant understand and be disposed to cultivate, as far as may be proper, the interests of the mechanic and manufacturing arts, to which his commerce is so nearly allied? Will not the man of the learned profession, who will feel a neutrality to the rivalships between the different branches of industry, be likely to prove an impartial arbiter between them, ready to promote either, so far as it shall appear to him conducive to the general interests of the society?
If we take into the account the momentary humors or dispositions which may happen to prevail in particular parts of the society, and to which a wise administration will never be inattentive, is the man whose situation leads to extensive inquiry and information less likely to be a competent judge of their nature, extent, and foundation than one whose observation does not travel beyond the circle of his neighbors and acquaintances? Is it not natural that a man who is a candidate for the favor of the people, and who is dependent on the suffrages of his fellow-citizens for the continuance of his public honors, should take care to inform himself of their dispositions and inclinations, and should be willing to allow them their proper degree of influence upon his conduct? This dependence, and the necessity of being bound himself, and his posterity, by the laws to which he gives his assent, are the true, and they are the strong chords of sympathy between the representative and the constituent.
There is no part of the administration of government that requires extensive information and a thorough knowledge of the principles of political economy, so much as the business of taxation. The man who understands those principles best will be least likely to resort to oppressive expedients, or sacrifice any particular class of citizens to the procurement of revenue. It might be demonstrated that the most productive system of finance will always be the least burdensome. There can be no doubt that in order to a judicious exercise of the power of taxation, it is necessary that the person in whose hands it should be acquainted with the general genius, habits, and modes of thinking of the people at large, and with the resources of the country. And this is all that can be reasonably meant by a knowledge of the interests and feelings of the people. In any other sense the proposition has either no meaning, or an absurd one. And in that sense let every considerate citizen judge for himself where the requisite qualification is most likely to be found.
President Obama sidestepped Senate Republicans Wednesday and appointed an independent consultant to the bailed-out American International Group as deputy attorney general.
Mr. Obama, vacationing in Hawaii with his family, appointed James Cole and five other officials, mostly ambassadors to foreign nations, using his authority to do so while the Senate is in recess.
Cole was nominated during the spring for the No. 2 post at Justice, but Alabama Sen. Jeff Sessions, the ranking Republican on the Judiciary Committee, opposed the nomination.
Cole's nomination came up in talks between Senate Majority Leader Harry Reid and Minority Leader Mitch McConnell during the closing days of the lame-duck Congress last week, when Republicans agreed to let at least 19 non-controversial judicial nominees win confirmation. Democrats will have a smaller majority when the new Senate meets next week.
Cole worked as an independent consultant for AIG before its collapse in 2008. Senate Republicans complained that confidentiality agreements blocked them from getting answers about what Cole did for the company, The Associated Press reported.
Cole won't be a stranger at Justice. The White House said he worked there for 13 years, including working as deputy chief of the department's Public Integrity Section, before entering private practice in 1992.
His appointment will last through the end of 2011, when the new Congress finishes the first half of its term.
Mr. Obama's other appointments Wednesday were:
William Boarman as public printer of the United States
Just how did we get to where we are when Justice Horace Gray even goes as far as to contradict himself when, after he quotes passages from the debates to support his position, he writes that "[T]he debates in Congress are not admissible as evidence to control the meaning of those words. But the statements above quoted are valuable as contemporaneous opinions of jurists and statesmen upon the legal meaning of the words themselves" .
So let us first take a look at what other members of Congress said in regards to what "subject to the jurisdiction thereof" meant.
Senator Jacob Howard was pretty clear This amendment which I have offered is simply declaratory of what I regard as the law of the land already, that every person born within the limits of the United States, and subject to their jurisdiction, is by virtue of natural law and national law a citizen of the United States. This will not, of course, include persons born in the United States who are foreigners, aliens who belong to the families of ambassadors or foreign ministers accredited to the Government of the United States, but will include every other class of persons. It settles the great question of citizenship and removes all doubt as to what persons are or are not citizens of the United States. This has long been a great desideratum in the jurisprudence and legislation of this country.
-Congressional Globe, Senate, 39th Congress, 1st Session Page 2890 As was Senator Lyman Trumbull The provision is, that "all persons born in the United States, and subject to the jurisdiction thereof, are citizens." That means "subject to the complete jurisdiction thereof."... What do we mean by "complete jurisdiction thereof?" Not owing allegiance to anybody else. That is what it means.
-Congressional Globe, Senate, 39th Congress, 1st Session Page 2893 Senator Howard later agreed with Senator Trumbull's definition of the word. I concur entirely with the honorable Senator from Illinois, in holding that the word "jurisdiction," as here employed, ought to be construed so as to imply a full and complete jurisdiction on the part of the United States, whether exercised by Congress, by the executive, or by the judicial department; that is to say, the same jurisdiction in extent and quality as applies to every citizen of the United States now.
-Congressional Globe, Senate, 39th Congress, 1st Session Page 2895 To further support the contention that Justice Gray got it wrong, Congress, on April 9, 1866, passed a law which established "That all persons born in the United States, and not subject to any foreign power, excluding Indians not taxed are hereby declared to be citizens of the United States;" (39th Congress, Session 1, Chapter 31) which later became Section 1992 of the US Revised Statutes in 1873. Now you argue that by choosing different language for the 14th Amendment, Congress changed it's mind but remember, this law was passed only a month after the amendment was proposed and Representative John Bingham, who co-wrote the citizenship clause said this regarding chapter 31 in the debate. I find no fault with the introductory clause, which is simply declaratory of what is written in the Constitution, that every human being born within the jurisdiction of the United States of parents not owing allegiance to any foreign sovereignty is, in the language of your Constitution itself, a natural born citizen.
-Congressional Globe, House of Representatives, 39th Congress, 1st Session Page 1291 So we have here the Congressional record that clarifies "subject to the jurisdiction thereof", now can we find any other reference by the government as to what it means? Well in 1873 the US Attorney General George Henry Williams issued this opinion concerning the 14th Amendment which according to the current DOJ website, "Under the Judiciary Act of 1789, the Attorney General was authorized to render opinions on questions of law when requested by the President and the heads of Executive Branch departments." "The word 'jurisdiction' must be understood to mean absolute and complete jurisdiction, such as the United States had over its citizens before the adoption of this amendment. Aliens, among whom are persons born here and naturalized abroad, dwelling or being in this country, are subject to the jurisdiction of the United States only to a limited extent. Political and military rights and duties do not pertain to them."
-14 U.S. Attorney General Opinions 300 Interestingly enough Justice Gray uses the previous opinions of Attorney Generals to support his opinion while omitting one that came just a year before Elk v. Wilkins where he himself also wrote similar words in the majority opinion, The persons declared to be citizens are "all persons born or naturalized in the United States, and subject to the jurisdiction thereof." The evident meaning of these last words is not merely subject in some respect or degree to the jurisdiction of the United States, but completely subject to their political jurisdiction and owing them direct and immediate allegiance. And the words relate to the time of birth in the one case, as they do to the time of naturalization in the other. Persons not thus subject to the jurisdiction of the United States at the time of birth cannot become so afterwards except by being naturalized, either individually, as by proceedings under the naturalization acts, or collectively, as by the force of a treaty by which foreign territory is acquired. With the history lesson being over on what the intent of just what was meant by "subject to the jurisdiction thereof" you have to ask yourself, how did Justice Gray arrive at this opinion in US v Wong Kim Ark just 14 years later, and especially after citing Elk? The foregoing considerations and authorities irresistibly lead us to these conclusions: the Fourteenth Amendment affirms the ancient and fundamental rule of citizenship by birth within the territory, in the allegiance and under the protection of the country, including all children here born of resident aliens, with the exceptions or qualifications (as old as the rule itself) of children of foreign sovereigns or their ministers, or born on foreign public ships, or of enemies within and during a hostile occupation of part of our territory, and with the single additional exception of children of members of the Indian tribes owing direct allegiance to their several tribes. The Amendment, in clear words and in manifest intent, includes the children born, within the territory of the United States, of all other persons, of whatever race or color, domiciled within the United States. Every citizen or subject of another country, while domiciled here, is within the allegiance and the protection, and consequently subject to the jurisdiction, of the United States. His allegiance to the United States is direct and immediate , and, although but local and temporary, continuing only so long as he remains within our territory... It can hardly be denied that an alien is completely subject to the political jurisdiction of the country in which he resides. What is presented as the opinion in Kim Ark is a pretty ironclad case for birthright citizenship regardless of the legal status of the parents. This is further cemented by a little nugget from Justice William Brennan in Plyler v Doe and makes it impossible to get around without an amendment or a SCOTUS ruling that settles the question once and for all. "[B]y principles of sovereignty and allegiance, no plausible distinction with respect to Fourteenth Amendment "jurisdiction" can be drawn between resident aliens whose entry into the United States was lawful, and resident aliens whose entry was unlawful."
I, like others, have cited that the feds lose cases only rarely. Some sources estimate a fed conviction rate of over 95%. Well lightening struck in a Florida federal court last week and the home team lost one. In a trial that lasted six (6) days, real estate developer Glenn Straub and his company Palm Polo Holdings, Inc, were found not guilty on violations of the Clean Water Act.
It seems Mr. Straub had engaged a contractor to remove Melaleuca trees and Brazilian Pepper trees from two of his properties under development. While the State of Florida recognizes these plants as invasive and having a negative impact on wetlands, the feds saw it as a violation of the Clean Water Act, 33 USC 1319. The case was brought in the Southern District of Florida (guess there must be a shortage of white-collar crime and drug cases in the Miami area these days). Had Straub been found guilty, the violation could have resulted in both fines and imprisonment.
What is rare is that the government lost a case, which is why I bring it to the attention of Forbes readers. What is worth noting also is that this loss is NOT worth noting at all. When are we going to see more prosecution of those individuals responsible for the losses at our financial institutions over the past 3 years. Operation Broken Trust, announced by U.S. attorney general Eric Holder earlier this month, was supposed to be part of a larger crackdown on white-collar crime. However, criticism about the lack of big names in that offensive has been noted throughout the media. This week, Andrew Cuomo New York's attorney general, even took on Ernst & Young for its role in the downfall of Lehman Brothers. I did not see Richard Fuld's (former Lehman Chairman & CEO) name on any indictment, federal or state.
On another note, the feds did win one in New York last week. Former Army Captain Bryant Williams was found guilty of an Honest Services fraud ( see Jeff Skilling appeal ) for taking bribes in his role as a procurement officer for the 101 st Airborne while stationed in Iraq. Let's hope this one holds up.
BECKLEY — Coal operators and environmentalists have been pondering the value of a name since the revelation that the coal industry may push for “rebranding” surface mining as “mountaintop development” instead of “mountaintop removal.”
The process of blasting the top of a mountain to obtain its underground coal reserves instead of digging a mine has been a much easier target for environmentalists since it has become known as mountaintop removal. However, coal industry executives say the term “mountaintop development” would paint a more accurate picture of the practice.
“In my mind, mountaintop ‘removal' implies the site is mined and then left barren, lifeless and flattened. This couldn't be further from the truth,” said Chris Hamilton of the West Virginia Coal Association.
He points to the mining permit requirement that forces miners to restore the mines to their approximate original contour or to configure the land for an “alternate use.”
Restoring the land occurs in about 90 percent to 95 percent of former surface mines, Hamilton said.
“We rebuild the mountain peak, resculpting it to approximately as close as possible to the original premining topography of the land, then we reseed it with grasses and trees,” Hamilton said. “We also rebuild the drainage channels, putting in sediment and erosion-control structures to prevent potential downstream impacts.”
One example of land that was developed for alternative use, Hamilton said, is a 900-acre plot in Mingo County donated for use as a regional airport. Cooperation of local officials, he said, has allowed coal companies to be a part of community development, postmining.
“Mingo County is doing some marvelous things through their Mingo County Redevelopment Authority,” Hamilton said. “This organization is partnering with the coal industry to include surface mining in its county master land use plan and to enlist the coal industry as an active partner in the process of building a new, diversified, sustainable economy for the region. This should be the model for the entire state, and we believe it is becoming so.”
He said across West Virginia, the benefits of redeveloped surface mine lands are apparent.
“Every day, you see news of this or that site, often it goes unnoticed that it was a former mine site, but the reality is that we have many former surface mine sites around the state already being used for economic development. The FBI Center in Bridgeport, with 3,000 jobs, spun off an entire technology corridor in Fairmont and Clarksburg,” Hamilton said. “In Wheeling, there is the Cabela's Shopping Center and basically 80 percent of the town of Weirton is on former surface mine lands, including the city hospital.”
Hamilton said West Virginia's natural contours are not necessarily the best for land development, and the cost of reshaping that land for development makes many potential sites cost-prohibitive.
“Southern West Virginia, in fact most of West Virginia, can be characterized like this: a valley floor between 100 feet and a half-mile wide, with a road, a river and a railroad running through it,” Hamilton explained. “On either side of the valley are mountains with slopes approaching 60 degrees. The valley floor is mostly taken up by the road, river (or stream) and railroad, and what little land remains is usually on the 20-year floodplain. Clearly, there is little readily developable land available for economic development or community development, recreational development or housing.”
The only solution, Hamilton points out, is build something on the floodplain and endangering the structure, carving a notch in the mountainside or paying for the access, utilities and site preparation to build directly on the mountaintop.
Coal operators can become a valuable partner in developing land for use, and could take the burden to do so off the taxpayer, Hamilton said.
“Frankly, I see a very symbiotic relationship — bringing together the coal industry, which is willing to move the earth to get at the resource it needs, and the economic/community development team that needs the site prepared for downstream development,” Hamilton said. “Would I like to see more done with these sites? Absolutely, but the coal industry is responsible to its stockholders to mine coal. We can be an incredible resource in the effort to build a new, sustainable economy for our region, but we cannot lead that effort.”
According to a West Virginia Public Broadcasting story, the term “mountaintop development” caught the eye of West Virginia coal industry executives when Tyler Phipps, a junior at the University of Kentucky, submitted a letter to the school's newspaper in which he suggested the term as a more accurate description of the mining practice.
However, Vivian Stockman, an organizer for the Ohio Valley Environmental Coalition, told West Virginia Public Broadcasting that a flyover of the southern West Virginia coalfields suggests little development on former surface mine sites.
“If they're hoping to, you know, create shopping malls on some of these, I don't know where they're going to get all the shoppers,” she said. “All the communities around these areas have been driven away.”
She added that the notion that West Virginia needs more flat land is a myth.
“Back in 2002 we had some volunteers create some maps for us,” she said. “There were just massive amounts of land that are not, in any way, shape or form, developed.”
Researchers from the Natural Resources Defense Council found that about 1.2 million acres and about 500 mountains were flattened by surface mining in central Appalachia. An aerial imagery analysis by NRDC found that about 90 percent of mountaintop removal sites were not converted to economic uses. Only about 4 percent of West Virginia and Kentucky mountaintops had been redeveloped, NRDC found.
“We watch our Appalachian communities being destroyed every day with the false promise of reclamation,” Lorelei Scarbro, with Coal River Mountain Watch, told NRDC. “We, the citizens living at ground zero, are losing our way of life and our history with every mountain they take. I am heartbroken to think what my grandchildren will have left when they grow up if we don't stop this rogue mining.”
While many cite grim imagery in the southern coalfields, Hamilton says surface mining is not as prevalent as a lot of numbers would suggest on first glance.
“I love mountains as well,” Hamilton said. “And I would point out that only 1 percent of the surface area of our state has been touched by surface mining. Some opponents of coal are prone to exaggeration...”
Hamilton acknowledges that not every site is located in an area where population is dense enough to sustain long-term development. However, there are some valuable uses for the land, he said.
“Is it feasible to expect Toyota or Ford to build an auto plant on top of every mountain in southern West Virginia? Can we put an industrial park on each one and expect it to thrive? Of course not,” Hamilton said. “No one is suggesting that.”
He said he would suggest that the sites be developed into things like recreational facilities such as the YMCA Soccer Complex in Beckley or in Morgantown at Mylan Park. He said homes and communities could be built outside floodplains to provide safe, modern housing, schools and hospitals, shopping centers, airports and industrial parks.
A survey of the West Virginia Department of Commerce found that 13,000 jobs were created on 43 former surface mining sites in 12 counties.
“With some areas of our state having little flat land for development, the use of surface-mined lands has been critically important to providing land for new industry and facilities for use by the general public,” Division of Energy Director Jeff Herholdt said. “In addition to the flat land, many projects are able to take advantage of infrastructure, roads, and electric service used during coal mining.”
The release pointed to the FBI Complex, Weirton Medical Center and the home of the new National Boy Scout Jamboree in Fayette County as successful post-mining land development.
Ken Ward, the author of the Charleston Gazette blog “Coal Tattoo,” points out a few problems with the report.
Ward wrote that about 42 percent of the jobs are seasonal, part-time, or temporary construction work. Two-thirds of the sites are outside southern West Virginia, and the FBI Center accounts for about a third of the jobs touted in the release.
“And some of these sites apparently involved little coal mining at all — only removal of coal that was ‘incidental' to the development and did not require a mining permit,” Ward wrote. “Others were mined and fully reclaimed, and development projects came much later and independently of the mining.”
Further, Ward writes, much of the information on the past of these sites is not well-documented by the Commerce Department.
“To be clear about this, post-mining development of these sites isn't supposed to be something that happens much later than mining,” Ward wrote. “It's not supposed to be something that a bunch of local folks come up with long after the mining operation is closed. Mine operators are not supposed to be able to just flatten the land, and hope somebody comes and builds a factory or a mall someday.”
Hamilton said surface mining is often pictured in black-and-white, but the reality is much more complex.
“Look, again, let's go to the math — the coal industry provides 60,000 jobs today at an average salary of $68,500 per year. The industry pays more than $3.4 billion each year in payroll and pumps some $26 billion into the state's economy. That is no small contribution. It is the very bedrock of our state's economy.
“About 45 percent of that impact comes from surface mining, and it is important to note that often the existence of a surface mine provides the economic support that allows affiliated underground mines to exist in an area. If you remove the surface mine component, you will likely make some underground mining facilities un-economic to operate.”
Due to early regulation and enforcement standards, Hamilton said, West Virginia is one of the most forested states in the nation. He said the need for greater diversity and development is now in demand and the future of West Virginia depends on development.
“I actually see these sites, with a properly developed mechanism to identify and market them, as one of our most important resources for building this new West Virginia,” Hamilton said. “With proper planning and coordination, I see these sites leading the way in the effort. And I see the coal industry as one of the most important resources our state has — both for today and for the future.”
GLORIA DEI EST CELARE VERBUM. AMEN. -
Proverbs 25:2 -
It is the glory of God to conceal a thing: (but the honour of kings is to search out a matter.)
Bill Text
111th Congress (2009-2010)
S.787.RS
S.787
Clean Water Restoration Act (Reported in Senate - RS)
SEC. 7. REGULATIONS.
(a) Promulgation- Not later than 18 months after the date of enactment of this Act, the Administrator of the Environmental Protection Agency and the Secretary of the Army shall promulgate such regulations as are necessary to implement this Act and the amendments made by this Act.
(b) Rules of Construction- Subject to the exclusions in paragraph (25)(B) of section 502 of the Federal Water Pollution Control Act (33 U.S.C. 1362) (as amended by section 4), the term `waters of the United States' shall be construed consistently with--
(1) the scope of Federal jurisdiction under that Act, as interpreted and applied by the Environmental Protection Agency and the Corps of Engineers prior to January 9, 2001 (including pursuant to the final rules and preambles published at 53 Fed. Reg. 20764 (June 6, 1988) and 51 Fed. Reg. 41206 (November 13, 1986)); and
(2) the legislative authority of Congress under the Constitution.
Calendar No. 685
111th CONGRESS 2d Session
S. 787
[Report No. 111-361]
A BILL
To amend the Federal Water Pollution Control Act to clarify the jurisdiction of the United States over waters of the United States.
Jan 5, 2011 10:39 AM, BY ROBERT P. MADER Of CONTRACTOR's staff
The following are Tenth Amendment Center model bills and resolutions which are intended to reaffirm the proper role of government under the Constitution. Activists, we encourage you to send them to your state senators and representatives – and ask them to introduce the legislation in your state.
More model legislation is forthcoming…Please don't hesitate to Contact Us with questions or suggestions.
10th Amendment Resolution
WHEREAS, the people of the State of __________ are not united with the People of the other forty-nine states that comprise the United States of America on a principle of unlimited submission to their federal government
Federal Health Care Nullification Act
An Act to render null and void certain unconstitutional laws enacted by the Congress of the United States, taking control over the health insurance industry and mandating that individuals purchase health insurance under threat of penalty.
Defend the Guard
For the purpose of requiring the Governor to withhold or withdraw approval of the transfer of this State's National Guard to federal control in the absence of an explicit authorization adopted by the Federal Government in pursuance of the powers delegated to the Federal Government in Article I, Section 8, Clause 15 of the U.S. Constitution.
Freedom from Registration Act
To make findings of the General Assembly in regard to a person's right to keep and bear arms, to provide that no federal official or agent may require registration of purchasers of firearms or ammunition within the boundaries of the state, and to provide penalties for violation of this act which is a felony.
Intrastate Commerce Act
Provides that all goods manufactured or made in (STATE) and all services performed in (STATE), when such goods or services are held, maintained, or retained in (STATE), shall not be subject to the authority of the Congress of the United States under its constitutional power to regulate commerce.
10th Amendment Commission
coming soon!
Hemp Freedom Act
To authorize the production of industrial hemp; to amend (SUBSECTION AND CODE) of the (STATE) Code, relating to the definition of noxious weed seeds; and to nullify certain acts of the Federal Government of the United States purporting to be laws and regulations resulting in the prohibition of industrial hemp farming in the state of (STATE).
Environmental Preservation Act
Any federal law, rule, order, or other act by the federal government violating the provisions of this act is hereby declared to be invalid in this state, is not recognized by and is specifically rejected by this state, and is considered as null and void and of no effect in this state.
Constitutional Tender Act
The General Assembly finds and declares that sound, constitutionally based money is essential to the livelihood of the people of this state and to the stability and growth of the economy of this state and region and vitally affects the public interest. The General Assembly further finds that Article I, Section 10 of the United States Constitution provides that no state shall make any thing but gold and silver coin a tender in payment of debts.
Controlled Substances Nullification Act
An Act to render null and void certain unconstitutional laws enacted by the Congress of the United States, prohibiting the sale, production, possession and consumption of certain products and substances under threat of penalty.
Uniform Enumerated Powers Act
A Bill to require the federal government to specify the source of authority under the United States Constitution for the enactment of laws, and for other purposes.
Matthew 7
1 Judge not, that ye be not judged.
2 For with what judgment ye judge, ye shall be judged: and with what measure ye mete, it shall be measured to you again.
3 And why beholdest thou the mote that is in thy brother's eye, but considerest not the beam that is in thine own eye?
4 Or how wilt thou say to thy brother, Let me pull out the mote out of thine eye; and, behold, a beam is in thine own eye?
5 Thou hypocrite, first cast out the beam out of thine own eye; and then shalt thou see clearly to cast out the mote out of thy brother's eye.
6 Give not that which is holy unto the dogs, neither cast ye your pearls before swine, lest they trample them under their feet, and turn again and rend you.
7 Ask, and it shall be given you; seek, and ye shall find; knock, and it shall be opened unto you:
8 For every one that asketh receiveth; and he that seeketh findeth; and to him that knocketh it shall be opened.
9 Or what man is there of you, whom if his son ask bread, will he give him a stone?
10 Or if he ask a fish, will he give him a serpent?
11 If ye then, being evil, know how to give good gifts unto your children, how much more shall your Father which is in heaven give good things to them that ask him?
12 Therefore all things whatsoever ye would that men should do to you, do ye even so to them: for this is the law and the prophets.
13 Enter ye in at the strait gate: for wide is the gate, and broad is the way, that leadeth to destruction, and many there be which go in thereat:
14 Because strait is the gate, and narrow is the way, which leadeth unto life, and few there be that find it.
15 Beware of false prophets, which come to you in sheep's clothing, but inwardly they are ravening wolves.
16 Ye shall know them by their fruits. Do men gather grapes of thorns, or figs of thistles?
17 Even so every good tree bringeth forth good fruit; but a corrupt tree bringeth forth evil fruit.
18 A good tree cannot bring forth evil fruit, neither can a corrupt tree bring forth good fruit.
19 Every tree that bringeth not forth good fruit is hewn down, and cast into the fire.
20 Wherefore by their fruits ye shall know them.
21 Not every one that saith unto me, Lord, Lord, shall enter into the kingdom of heaven; but he that doeth the will of my Father which is in heaven.
22 Many will say to me in that day, Lord, Lord, have we not prophesied in thy name? and in thy name have cast out devils? and in thy name done many wonderful works?
23 And then will I profess unto them, I never knew you: depart from me, ye that work iniquity.
24 Therefore whosoever heareth these sayings of mine, and doeth them, I will liken him unto a wise man, which built his house upon a rock:
25 And the rain descended, and the floods came, and the winds blew, and beat upon that house; and it fell not: for it was founded upon a rock.
26 And every one that heareth these sayings of mine, and doeth them not, shall be likened unto a foolish man, which built his house upon the sand:
27 And the rain descended, and the floods came, and the winds blew, and beat upon that house; and it fell: and great was the fall of it.
28 And it came to pass, when Jesus had ended these sayings, the people were astonished at his doctrine:
29 For he taught them as one having authority, and not as the scribes.
Donna nobis pacem - Grant us peace :
Fide, non armis - By faith, not arms
In the memory of virtue when it is present, people imitate it, and they long for it when it has gone;
for their fruit will be useless, not ripe enough to eat, and good for nothing.
..a blameless life is ripe old age.
They will come with dread when their sins are reckoned up, and their lawless deeds will convict them to their face.
The salvation of the righteous, one another in repentance, and in anguish of spirit they will groan, and say,
‘These are persons whom we once held in derision and made a byword of reproach—fools that we were!
We thought that their lives were madness and that their end was without honour.
So it was we who strayed from the way of truth,
‘All those things have vanished like a shadow, and like a rumour that passes by; like a ship that sails through the billowy water, and when it has passed no trace can be found, no track of its keel in the waves; or as, when a bird flies through the air,
no evidence of its passage is found; the light air, lashed by the beat of its pinions and pierced by the force of its rushing flight,
is traversed by the movement of its wings, and afterwards no sign of its coming is found there; or as, when an arrow is shot at a target, the air, thus divided, comes together at once, so that no one knows its pathway.
So we also, as soon as we were born, ceased to be, and we had no sign of virtue to show, but were consumed in our wickedness.'
Because the hope of the ungodly is like thistledown carried by the wind, and like a light frost driven away by a storm;
it is dispersed like smoke before the wind, and it passes like the remembrance of a guest who stays but a day.
Therefore they will receive impartial justice as an invincible shield,
and sharpen stern wrath.
Listen therefore, and understand;
learn, O judges of the ends of the earth.
2 Give ear, you that rule over multitudes,
and boast of many nations.
3 For your dominion was given you from the Lord,
and your sovereignty from the Most High;
he will search out your works and inquire into your plans.
4 Because as servants of his kingdom you did not rule rightly,
or keep the law, or walk according to the purpose of God,
5 he will come upon you terribly and swiftly,
because severe judgement falls on those in high places.
6 For the lowliest may be pardoned in mercy,
but the mighty will be mightily tested.
7 For the Lord of all will not stand in awe of anyone,
or show deference to greatness;
because he himself made both small and great,
and he takes thought for all alike.
8 But a strict inquiry is in store for the mighty.
9 To you then, O monarchs, my words are directed,
so that you may learn wisdom and not transgress.
10 For they will be made holy who observe holy things in holiness,
and those who have been taught them will find a defence.
11 Therefore set your desire on my words;
long for them, and you will be instructed.
12 Wisdom is radiant and unfading,
and she is easily discerned by those who love her,
and is found by those who seek her.
13 She hastens to make herself known to those who desire her.
14 One who rises early to seek her will have no difficulty,
for she will be found sitting at the gate.
15 To fix one's thought on her is perfect understanding,
and one who is vigilant on her account will soon be free from care,
16 because she goes about seeking those worthy of her,
and she graciously appears to them in their paths,
and meets them in every thought.
17 The beginning of wisdom is the most sincere desire for instruction,
and concern for instruction is love of her,
18 and love of her is the keeping of her laws,
and giving heed to her laws is assurance of immortality,
19 and immortality brings one near to God;
20 so the desire for wisdom leads to a kingdom.
21 Therefore if you delight in thrones and sceptres, O monarchs over the peoples,
honour wisdom, so that you may reign for ever.
22 I will tell you what wisdom is and how she came to be,
and I will hide no secrets from you,
but I will trace her course from the beginning of creation,
and make knowledge of her clear,
and I will not pass by the truth;
23 nor will I travel in the company of sickly envy,
for envy does not associate with wisdom.
24 The multitude of the wise is the salvation of the world,
and a sensible king is the stability of any people.
25 Therefore be instructed by my words, and you will profit.
7 I also am mortal, like everyone else,
a descendant of the first-formed child of earth;
and in the womb of a mother I was moulded into flesh,
2 within the period of ten months, compacted with blood,
from the seed of a man and the pleasure of marriage.
3 And when I was born, I began to breathe the common air,
and fell upon the kindred earth;
my first sound was a cry, as is true of all.
4 I was nursed with care in swaddling cloths.
5 For no king has had a different beginning of existence;
6 there is for all one entrance into life, and one way out.
7 Therefore I prayed, and understanding was given me;
I called on God, and the spirit of wisdom came to me.
8 I preferred her to sceptres and thrones,
and I accounted wealth as nothing in comparison with her.
9 Neither did I liken to her any priceless gem,
because all gold is but a little sand in her sight,
and silver will be accounted as clay before her.
10 I loved her more than health and beauty,
and I chose to have her rather than light,
because her radiance never ceases.
11 All good things came to me along with her,
and in her hands uncounted wealth.
12 I rejoiced in them all, because wisdom leads them;
but I did not know that she was their mother.
13 I learned without guile and I impart without grudging;
I do not hide her wealth,
14 for it is an unfailing treasure for mortals;
those who get it obtain friendship with God,
commended for the gifts that come from instruction.
15 May God grant me to speak with judgement,
and to have thoughts worthy of what I have received;
for he is the guide even of wisdom
and the corrector of the wise.
16 For both we and our words are in his hand,
as are all understanding and skill in crafts.
17 For it is he who gave me unerring knowledge of what exists,
to know the structure of the world and the activity of the elements;
18 the beginning and end and middle of times,
the alternations of the solstices and the changes of the seasons,
19 the cycles of the year and the constellations of the stars,
20 the natures of animals and the tempers of wild animals,
the powers of spirits * and the thoughts of human beings,
the varieties of plants and the virtues of roots;
21 I learned both what is secret and what is manifest,
22 for wisdom, the fashioner of all things, taught me.
The Nature of Wisdom
There is in her a spirit that is intelligent, holy,
unique, manifold, subtle,
mobile, clear, unpolluted,
distinct, invulnerable, loving the good, keen,
irresistible,
23 beneficent, humane,
steadfast, sure, free from anxiety,
all-powerful, overseeing all,
and penetrating through all spirits
that are intelligent, pure, and altogether subtle.
24 For wisdom is more mobile than any motion;
because of her pureness she pervades and penetrates all things.
25 For she is a breath of the power of God,
and a pure emanation of the glory of the Almighty;
therefore nothing defiled gains entrance into her.
26 For she is a reflection of eternal light,
a spotless mirror of the working of God,
and an image of his goodness.
27 Although she is but one, she can do all things,
and while remaining in herself, she renews all things;
in every generation she passes into holy souls
and makes them friends of God, and prophets;
28 for God loves nothing so much as the person who lives with wisdom.
29 She is more beautiful than the sun,
and excels every constellation of the stars.
Compared with the light she is found to be superior,
30 for it is succeeded by the night,
but against wisdom evil does not prevail.
Bnei Ravrevaya
The raiser shall cease evils and wickedness, for thy commit falsehood, stranger.
When you shall go, that the judgment might be all your shields gone.
I will spread my net upon you, I will bring you down as the fowls of Heaven; I will chastise you, as your congregation has heard.
For I know your manifold transgressions afflicting the just and poor in the gate from his right.
Love the good and establish your judgment in the gate for perverting the balance of deceit.
Ye are cursed with a curse, for ye have robbed me, even this whole nation.
And I will rebuke the devourer for your sake.
We shall return, and discern between the righteous and the wicked, between him that serves God, and he that serves not.
Deo, Patriae, Tibi. Capitales justiciarii proprias regis causas terminant, ideo consideratum est per Curiam. Ex calce liberatus!
Mr. T.W. Arman; radix & vertex imperii; absolute Patent Title owner, Iron Mountain Mine & Agricultural College grantee
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With the price of gold hitting record highs and equity prices lagging behind, Bob Moriarty, founder of 321gold.com, says it's time to gather some precious metals as insurance against hyperinflation or deflation-whichever may be coming our way-and to stock up on junior resource stocks. Prudent picks, he suggests in this exclusive interview with The Gold Report, stand a good chance of yielding returns up to 500%. 
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An architectural firm's proposal for a new retractable-dome capitol.
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Countries everywhere are facing debt crises today, precipitated by the credit collapse of 2008. Public services are being slashed and public assets are being sold off, in a futile attempt to balance budgets that can't be balanced because the money supply itself has shrunk. Governments usually get the blame for excessive spending, but governments did not initiate the crisis. The collapse was in the banking system, and in the credit that it is responsible for creating and sustaining. 
Contrary to popular belief, most of our money today is not created by governments. It is created by private banks as loans. The private system of money creation has grown so powerful over the centuries that it has come to dominate governments globally. The system, however, contains the seeds of its own destruction. The source of its power is also a fatal design flaw. 
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Given that the defendant's burden was “not daunting” and was simply to prove “more likely than not” that the damages would exceed $5 million, the Court found that the defendant had met its burden of proving the requisite amount in controversy by a preponderance of the evidence. The Court maintained that a declaration or affidavit may satisfy the burden, and the defendant need not produce extensive business records to prove or disprove liability and/or damages with respect to plaintiff or the putative class members. 
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2 comments:
Pure Rhetoric for the gullible...
Deeds speak louder than words....
There is a huge gap between what this family says and does for generations....despite the changing of the "Guard".... no one is fooled by the "niceties" and utter contradictions....
I believe in the integrity of this guy because I have no good reason not to. Those conspiracy thinkers really annoy me, please people is you are frustrated with your life go find another job or something.
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