IRON MOUNTAIN MINES INSTITUTE
IRON MOUNTAIN MINES INSTITUTE
Release date: 09/23/2010
Contact Information: EPA Press Office, press@epa.gov, 202-564-6794
WASHINGTON – U.S. Environmental Protection Agency (EPA) Administrator Lisa P. Jackson will testify before the Senate Agriculture Committee today, September 23, 2010. The hearing will take place at 2:00 p.m. in room 328A of the Russell Senate Office Building.
Hearing details:
WHO: EPA Administrator Lisa P. Jackson
WHAT: Testifying before the Senate Agriculture Committee
WHEN: 2:00 p.m., Thursday, September 23
WHERE: 328A Russell Senate Office Building, Washington, D.C.
A District Court in California declined to remand the action to state court holding that the defendant is not bound to submit “summary-judgment-type evidence” as long as the jurisdictional amount was either “facially apparent” from the complaint or was shown to be “more likely than not” by the facts alleged in the removal petition.
Engineering researchers from Tufts University, the University of Wisconsin-Madison and Harvard University have demonstrated the low-temperature efficacy of an atomically dispersed platinum catalyst, which could be suitable for on-board hydrogen production in fuel-cell-powered vehicles of the future.
An alternative to copper, which under certain conditions can ignite spontaneously, the platinum-based catalyst is highly active and stable. The researchers' understanding of the structure and function of the new catalyst could help manufacturers design highly effective—but less costly—catalysts on standard, inexpensive support metal oxides.
Led by Maria Flytzani-Stephanopoulos, a Tufts University School of Engineering professor of chemical and biological engineering, and Manos Mavrikakis, a UW-Madison professor of chemical and biological engineering, the research team published its findings in the Sept. 24, 2010, issue of the journal Science .
Only small amounts of hydrogen occur naturally on Earth—yet, according to the U.S. Department of Energy, the country's demand for hydrogen is about 9 million tons per year.
Manufacturers produce about 95 percent of this hydrogen through steam reforming of natural gas, a catalytic process in which steam reacts with methane to yield carbon monoxide and hydrogen. This mixture is known as synthesis gas, or syngas, and is an intermediate in production processes for synthetic fuels, ammonia and methanol, among other compounds.
Another application for hydrogen is fuel for the hydrogen economy, an effort that aims to exploit high-energy-density hydrogen as a cleaner source of energy, particularly for low-temperature fuel-cell-powered devices, including vehicles.
Fuel cells use electrochemical processes to convert hydrogen and oxygen into water, producing direct current that powers a motor. Fuel cell vehicles require highly purified hydrogen, which is produced through a water-gas-shift reaction. This key step strips "residual" carbon monoxide from hydrogen generated through steam reforming of fossil fuels, such as natural gas. Water-gas-shift catalysts decrease the amount of carbon monoxide in hydrogen and increase the hydrogen content by harvesting hydrogen from water molecules.
Catalysts currently used in industry for hydrogen purification are copper-based, supported on zinc oxide and alumina. Because copper is pyrophoric (it could spontaneously ignite when exposed to air; air in fuel cell operation is relatively common), researchers have considered platinum as a substitute. However, platinum is costly and, says Flytzani-Stephanopoulos, researchers must prepare it in very fine particles on more "exotic" supports, such as the rare-earth oxide ceria, which makes it effective for a low-temperature water-gas-shift reaction.
However, while cerium is the most abundant of the rare-earth elements, this natural abundance occurs in just a few places around the world, and, says Mavrikakis, access to it may be limited for various reasons, including geopolitical.
The Tufts researchers initially discovered that sodium improves the platinum activity in the water-gas-shift reaction, which now can take place at low temperatures, even on inert materials like silica. They carried out detailed structural studies and found extra active oxygen species on the surface that helped the platinum complete the reaction cycle. They also found that the sodium or potassium ions helped to stabilize the catalytic site.
In later experiments, they saw their catalyst perform as well as platinum on ceria. Collaborator David Bell of Harvard University used atomic-resolution electron microscopy to view stabilized platinum clusters and atoms on the silica support—visual confirmation that the new catalyst operates like those on ceria supports.
Mavrikakis' team set out to understand why. The researchers drew on powerful computational resources, including the UW-Madison Division of Information Technology and the Center for High-Throughput Computing, as well as an ultrafast 10G data network, to model the new catalyst, atom by atom. "There is no experimental way that you can look at the atoms 'at work'—that is, while the reaction is happening," says Mavrikakis. "You need to start talking about individual atoms, which you can see with the highest-resolution electron microscopes—but not during the reaction. So you can only suggest that perhaps these atoms are active, but there is no way to substantiate it unless you put an atomic-scale quantum-mechanical model together and come up with a more realistic and well-founded suggestion about what is responsible for making this catalyst so active."
Although platinum is among the most expensive catalytic materials, the new catalyst contains only trace amounts of platinum, yet is robust and effective at low temperatures. Essentially, its structure is a series of small "clusters" comprising only a few atoms, each in a specific arrangement. Each cluster is composed of one or a few a platinum atoms surrounded by a mixture of oxygen, hydroxyl and potassium atoms and is "seated" on the standard aluminum or silica support.
The researchers say the advance is important in part because, through a combination of experiments and first-principles theory, the work reveals a new type of active site for a specific, very important chemical reaction. "Most of the time, people are happy to say, 'Well, we've found a material. It works for a given application,'" says Mavrikakis.
In this case, says Flytzani-Stephanopoulos, the team took the next step to determine how and why the catalyst works. "If we want to move to the next stage with cheaper materials that are doing the specific chemical transformations, we need to understand the fundamentals," she says.
###Other authors on the paper include UW-Madison postdoctoral associate Guowen Peng, PhD student Jeff Herron, and then-PhD students (now alumni) Peter Ferrin and Anand Nilekar; and Tufts University Research Professor Howard Saltsburg, postdoctoral associate Rui Si, PhD student Yanping Zhai and former PhD student Weiling Deng, and master's student Danny Pierre.
The U.S. Department of Energy and National Science Foundation provided primary funding for the research.
There are currently EPA Emissions Control Grants available to corporations across America to assist in the cost of converting and modifying their diesel powered truck fleets into less polluting sources of transportation.
At the federal level, there is a grant program that applications can be submitted for to help offset the cost of complying with the cleaner emission standards the federal government is enacting. The name of this program is the National Clean Diesel Campaign (NCDC).
The NCDC is a program the helps to offset the cost of retrofitting a diesel fleet with verifiable and certified diesel emission reduction devices.
This kind of program is not restricted to the federal government. Many states also are now providing EPA grants to help reduce the level of pollutants being emitted into the atmosphere by diesel power vehicles.
In California, the grant program is called the Carl Moyer program. They provide grants for the voluntary reduction of emission on heavy duty engines. This can be by retrofitting certified emission reduction devices, engine replacement and even the purchase of newer cleaner running vehicles.
In Pennsylvania, there is the PA Small Business Advantage Grant program that provides small businesses with grants starting at $7,500. This program is sponsored by the PA EPA.
Texas has two programs. The North Central Texas Council of Governments (NCTCOG) that has $10.7 million available grants for construction equipment, idle reduction technologies and for local government projects. The second is the Texas Emissions Reduction Plan (TERP) that provides grants to improve the air quality of Texas.
Wisconsin has the Wisconsin Diesel Truck Idling Reduction Grant Program that provides funding for freight haulers to install this new technology on their fleet trucks.
These are the major EPA Emissions Control Grants available across America at this time. The advancements in the technology for the reduction of diesel pollutants are advancing which will let all Americans breather easier. The grant programs allow for this to be used at a reduced cost to industries that use diesel power vehicles.
Click here to discuss your Diesel Clean Air Grants with an expert at Ward Clean Air Products , they will assist you with the grant application.
Click here to read more about how to Apply for a Grant .
Release date: 09/20/2010
Thursday, September 23, 2010 | 5:55 AM
by Cynthia Gordy
On Wednesday morning, Administrator Jackson added another layer to her EJ Mission by holding a meeting with several fellow Cabinet members; Attorney General Eric Holder , Interior Secretary Ken Salazar , HUD Secretary Shaun Donovan , and Transportation Secretary Ray LaHood -- as well as representatives from other federal agencies, including Health and Human Services, Education and Labor. It was the first time in more than a decade that the agencies have convened about environmental justice, in a body called the Interagency Working Group on Environmental Justice, despite a Clinton-era mandate establishing the group and requiring them all to tackle the issue.September 23, 2010
The National Association of Clean Water Agencies (NACWA) sent a letter ( http://www.nacwa.org/images/stories/public/2010-09-09adminltr.pdf) on September 9, 2010 to President Barack Obama commending his Administration for its support of increased funding for clean water programs over the last two years, including the passage of the American Recovery and Reinvestment Act (ARRA or stimulus package) and urging the inclusion of clean water funding in any proposed infrastructure package designed to put Americans back to work and to spur the economy.
The letter focused on the growing national funding gap and the proven ability of public clean water agencies to get shovels in the ground and put people to work as demonstrated by the ARRA. The U.S. Environmental Protection Agency (EPA) estimates that nearly $300B is needed for wastewater and stormwater Clean Water Act compliance projects over the next 20 years and a $500B gap between current investment and projected needs in water infrastructure needs more broadly over the next 20 years. At the same time, numerous studies show that every $1B invested in water infrastructure projects creates between 20,000 – 27,000 jobs as well as an economic ripple effect that adds $2.87 to $3.46B to the economy.
The letter was timed to follow the President's recent announcement that his Administration supports the passage of a $50B infrastructure package, which is clearly focused on aiding the transportation sector. NACWA will continue to ensure that clean water infrastructure funding is part of the discussion in Congress and the Administration as additional economic stimulus initiatives proceed.
NACWA represents the interests of more than 300 public agencies and organizations that have made the pursuit of scientifically based, technically sound and cost effective laws and regulations their objective. NACWA members serve the majority of the sewered population in the United States and collectively treat and reclaim more than 18 billion gallons of wastewater daily.
SOURCE: NACWA
LAFAYETTE, La. (AP) - A former Iberia Parish sheriff has pleaded guilty to violating the Clean Water Act by negligently operating a water treatment facility.
Sidney J. Hebert was part-owner and president of Environmental Compliance Solutions LLC when state regulators inspected a company facility in June 2009 and found wastewater bypassing the filtration system and flowing into the Port of Iberia's Commercial Canal.
Federal prosecutors said Wednesday that Hebert and the company have agreed to shut down the facility and pay a fine of $50,000.
Hebert faces a maximum prison sentence of 1 year. No sentencing date has been set.
1933 The California state legislature approved the Central Valley Project which included the Shasta and Friant Dams. It became a federally built water system to sustain California agriculture. The Friant dam was completed in 1944.
(SFC, 12/29/99, Z1 p.1)
1940-1949 During the 1940s the Associated Sportsmen of California repeatedly warned of damage to the salmon population near Redding and urged the government to release water from Shasta Lake to dilute the poisons from Iron Mountain.
(SFEC,11/2/97, p.A13)(SSFC, 8/29/10, p.A15)
1957 Iron Mountain mine owners blamed the federal government for fish kills. They held that the Shasta federal dam caused the buildup of pollutants and that previously flows from Spring Creek were rendered harmless by dilution in the Sacramento River.
(SFEC,11/2/97, p.A13)
1928 Water Policy -- Voters lay a legal cornerstone for water policy in their arid state, stating that water rights are subject to a requirement that water be used in a "reasonable" and "beneficial" manner. This for the first time establishes the legal principal of water conservation. (Constitutional amendment, proposed by the Legislature, approved by 77.2 percent of voters.)
1933 Central Valley Project - The Legislature authorizes construction of a state Central Valley Project, to consist of Shasta Dam on the upper Sacramento River near Redding, Friant Dam on the upper San Joaquin River near Fresno, and other dams and canals. Fifty-two percent of voters in a referendum uphold the Legislature's action in a December special election that attracts a light turnout of less than 900,000. (More than 2 million had come to the polls a year earlier.) In 1935 the financially strapped state, unable to sell bonds for a state Central Valley Project, surrenders the plan to the federal government, which authorizes construction as the federal Central Valley Project.
1935 Pollution Control - - The Dickey Water Pollution Act, the first of the modern clean-water laws, creates a State Water Pollution Control Board.
1959 State Water Project -- The Burns-Porter Act orders construction of the State Water Project, to consist of Oroville Dam on the Feather River , the California Aqueduct from the Sacramento-San Joaquin River Delta to Southern California , and other dams and canals. The following year, a narrow 51.5 percent majority of voters authorizes the $1.75 billion bond act that will finance the project. At the time it's the largest bond issue ever approved by a state. Support in more populous Southern California outweighs opposition in the north. Declares Governor Brown of the California Aqueduct: "We are going to build a river 500 miles long… to correct an accident of people and geography."
1969 Clean Water - - The Porter-Cologne Water Quality Control Act is adopted as one of the nation's strongest anti-pollution laws and becomes a model for the federal Clean Water Act of 1972.
1970 Environmental Impact Reports -- Reacting to an oil spill in the Santa Barbara Channel, lawmakers with Governor Reagan's signature enact the California Environmental Quality Act to require environmental impact reports before any project is undertaken that "could have a significant effect on the environment."
1972 Waste Management - Legislation creates the California Waste Management Board to oversee the safe disposal of California's growing waste. In 1989 the program is revamped and a new board, with the same name, charged with developing plans for reducing disposable waste through reuse and recycling. Goals are set for cutting waste in California's communities by 25 percent by 1995 and 50 percent by 2000. In 1989 the state has 35 municipal curbside recycling programs; by 1995 it has nearly 500.
1980 Peripheral Canal -- The Legislature, with Jerry Brown's signature, authorizes construction of a canal around the periphery of San Francisco Bay to connect the Sacramento River with the California Aqueduct, rather than continuing to draw water through the Sacramento-San Joaquin River Delta. The Peripheral Canal is killed by voter referendum in 1982, rejected by 62.7 percent of voters.
1981 Cleanup of Toxic Wastes - A year after Congress creates the Superfund program, California establishes its own fund to clean up sites contaminated by toxic wastes. State and federal officials by 1994 identify 265 "high priority" cleanup sites in California.
1990 Cal EPA - - Governor Wilson creates the California Environmental Protection Agency, with cabinet status, to coordinate environmental regulatory programs. A Department of Pesticide Regulation is put under its jurisdiction.
1994 Incompetent Judges --Voters endorse a constitutional amendment offered by the Legislature to permit greater public oversight in disciplining corrupt, biased or incompetent judges. The Commission on Judicial Performance is given authority to remove or censure judges and its disciplinary hearings will be open to the public. (Approved by 63.7 percent of voters.)
The California Legislature authorized the future Central Valley Project as a state project in 1933. The act authorized the sale of "revenue" bonds not to exceed $170 million.
Even with the authorized revenue bonds, California found itself unable to finance the project. The state could not get the project approved for loans and grants under the National Recovery Act. Harry W. Bashore reported to Reclamation on the upper San Joaquin Relief Project that the State Engineer considered Kennett Reservoir the cornerstone for the entire Central Valley Project. California applied to the Federal Emergency Administration of Public Works (FEA) for grants and loans, and created the Water Project Authority. The Committee on Rivers and Harbors of the House of Representatives recommended $12 million of Federal money for construction of Kennett (Shasta) Dam because of the national benefits to navigation and flood control on the Sacramento River. After reviewing the investigations, the California Joint Federal-State Water Resources Commission, the United States Senate Committee on Irrigation and Reclamation, the Bureau of Reclamation, and the Army Corps of Engineers approved and recommended the plan.
California amended its application to the FEA in 1934, and the Water Project Authority became effective. President Franklin D. Roosevelt issued an executive allocation of $20 million, later reduced to $4.2 million, under the Emergency Relief Appropriation Act, for construction of the Central Valley Project on September 10, 1935. Apparently officials assumed the approval was valid under the Emergency Relief Appropriation Act of 1935. The Supreme Court case of the United States v. Arizona (295 U.S. 174) threatened the assumption. Before 1935, the government sometimes started irrigation projects using relief funds without conforming to the Reclamation Acts, but the court's decision said the Secretary of the Interior and the Federal Emergency Administrator of Public Works did not have the authority to construct Parker Dam, on the Colorado River, without the consent of Congress. The Supreme Court ruled that such an approach violated reclamation laws.
Authorization of the Central Valley Project could not take place at the time because there were no executive branch findings and approval of feasibility. The technical problems, however, did not stop authorization of the project. Active participation by Reclamation, in matters relating to the Central Valley, started in September 1935, at meetings in Sacramento and Berkeley. Reclamation Commissioner Elwood Mead, Chief Engineer Raymond F. Walter, Construction Engineer Walker R. Young, and State Engineer Edward Hyatt attended the meeting. Secretary of the Interior Harold Ickes sent the feasibility report to the President on November 26, 1935. Roosevelt approved Central Valley Project, including Kennett (Shasta), Friant, and Contra Costa (Delta) Divisions, on December 2, 1935.
The Rivers and Harbors Act of 1937, re-authorized the Central Valley Project, and authorized $12 million for it. The Rivers and Harbors Act listed improvement of navigation, regulation, and flood control of the Sacramento and San Joaquin Rivers as the first priorities of the Central Valley Project. Reclamation's primary purpose, supplying water for irrigation and domestic use followed these priorities, and power generation ended up the last priority on the list.
Construction of the Central Valley Project started in the late 1930s. By 1939, the CVP apparently gained more attention for Reclamation from Federal officials. Secretary of the Interior Harold Ickes was one of the officials who paid little attention to Reclamation and the CVP early in the 1930s. At one point during the decade, Ickes offered to trade Reclamation to the Department of Agriculture in return for the Forest Service. The trade never went through, but reveals the lack of interest the Interior Secretary had for the agency.
September 22, 2010
Commerce Secretary Gary Locke today announced six new Regional Integrated Sciences and Assessments (RISA) awards totaling $23.6 million over five years to research institutions, from Honolulu, Hawaii to Boston, Mass., to improve the nation's ability to anticipate and adapt to climate variability and change.
The six regional teams will work closely with natural resource managers and land planners, nongovernmental organizations and the private sector within each region to advance new research on how climate variability and change will impact the environment, economy, and society, and develop innovative ways to integrate climate information into decision-making.
“Climate change affects water supply and demand, coastal communities and ecosystems, energy, agriculture, infrastructure, human health and transportation,” said Mary Glackin, deputy under secretary of commerce for oceans and atmosphere. “The strength of these teams lies in their ability to address regional scale climate impacts and provide timely and relevant information to decision-makers dealing with multiple climate-impact issues and planning decisions.”
The six new RISA awards include:
All six awards have multiple institutions involved; only lead institutions are listed.
These awards were chosen competitively by an independent, expert review panel. NOAA has supported RISA teams for more than 15 years. RISAs represent an effective method to co-design and co-develop climate services and science through partnerships among scientists and decision makers. They will also contribute to research and assessment activities in direct support of the U.S. National Climate Assessment being undertaken by a range of federal entities. The RISA program will be a core component of the emerging Climate Service at NOAA.
In February, the Secretary of Commerce and the NOAA Administrator first announced the intent to establish a new NOAA Climate Service. This new line office will combine the agency's world-class climate science and technical capabilities, and leverage its partnerships, such as those with RISAs to evolve the capacity for sustained engagement with decision-makers to develop, deliver and communicate climate services. The concept of creating a NOAA Climate Service was strongly endorsed by the National Academy of Public Administration, which recently released a report for which Dr. Lubchenco issued a statement of thanks.
RISA teams work closely with NOAA's federal, state and local partners, and many will have strong connections with emerging federal initiatives such as the Department of Interior's Climate Science Centers and Landscape Conservation Cooperatives.
The new RISA partnerships join five ongoing RISAs including:
NOAA's mission is to understand and predict changes in the Earth's environment, from the depths of the ocean to the surface of the sun, and to conserve and manage our coastal and marine resources. Visit us on Facebook at http://www.facebook.com/usnoaagov .
The EJ CPS program requires selected applicants, or recipients, to use the Environmental Justice Collaborative Problem-Solving Model (EJ CPS Model) as part of their projects. The EJ CPS Model's purpose is to provide communities with information to help them develop proactive, strategic, and visionary approaches to address environmental justice issues, and to achieve community health and sustainability. Information on the EJ CPS Model can be found in the publication EPA's Environmental Justice Collaborative Problem-Solving Model PDF (44 pp, 1.5MB) . EPA's Office of Environmental Justice (OEJ) launched the Environmental Justice Collaborative Problem-Solving Cooperative Agreement (EJ CPS) program in 2003
On June 5, 2007, EPA announced $1 million in grants across the country for improving the environment in low-income communities. These grants were awarded on May 15, 2007.
In 2009, EPA selected five state projects to receive funding up to $160,000 each, totaling $800,000.
Alaska The Alaska Department of Environmental Conservation Tribal Participation Protocol Development Project is working with Alaska Native tribal organizations to establish an early notification protocol for the Alaska Pollution Disposal and Elimination System permitting program. The objective of this protocol is to increase community involvement in the permitting process. The project will provide the training and tools for implementing the protocol. The best practices resulting from this project will be applied in other Alaska Department of Environmental Conservation programs and potentially to other State permitting programs.
California The California Department of Toxic Substances Control (DTSC) is working with community representatives, and local, state, and federal regulatory agencies to coordinate multiple environmental pollution mitigation activities. The project will identify inspection and enforcement activities, targeting specific pollution sources, and develop effective strategies for reducing or eliminating these sources in the affected communities. DTSC will also create education programs for community residents and develop compliance assistance programs for small businesses located in selected communities. The initiative will also be exploring options for creating education and job opportunities for community members living in selected communities.
Illinois The East St. Louis Residential Lead Paint Outreach Collaborative will provide community outreach and training to educate and involve residents in lead abatement and paint contamination throughout the City of East St. Louis. The project includes conducting research on the health effects of exposure to residential lead contamination. The outreach plan and public education program will also focus on the hazards of lead contamination, prevention measures, lead blood screening and abatement services. The overall mission of the collaborative is to prevent and eliminate childhood lead poisoning.
Pennsylvania The Pennsylvania Department of Environmental Protection, the Chester Environmental Partnership, and the Crozer-Keystone Health System have come together in a partnership to address the issues of asthma triggers, solid waste disposal, and children's environmental health. This project will combine in-home remediation and education with community-based efforts to reduce exposure to air pollution and solid waste. The program will be implemented in three phases:
The U.S. Environmental Protection Agency has committed $1,000,000 to address environmental justice challenges in ten communities across the nation. The Agency is providing $100,000 per project over the next two years to help alleviate the environmental and human health challenges facing many American communities.
The Environmental Justice Showcase Communities effort brings together governmental and non-governmental organizations and pools their collective resources and expertise on the best ways to achieve real results in communities.
Each Region throughout the country has communities with Environmental Justice concerns including:
Therefore, EPA will work to improve collaboration in the delivery of services to support communities with environmental justice issues.
The successes and lessons learned in these demonstration projects will be used to help guide the design and implementation of future Environmental Justice projects and will help EPA increase its ability to address local environmental challenges in more effective, efficient, and sustainable ways.
This effort will build upon the existing targeted inspection and enforcement efforts of Cal EPA's DTSC. This collaborative approach will solicit input from the communities on environmental problems and concerns and work with federal, state, and local agencies to focus inspection and compliance efforts on the most heavily affected, highest-priority areas.
Fiscal Year 2009 marked the 15th anniversary of EPA's Environmental Justice Small Grants Program (EJSG). Since its inception in 1994, the Program has awarded more than $20 million in funding to 1,130 community-based organizations, and local and tribal organizations working with communities who are facing environmental justice issues.
The Environmental Justice Small Grants Program (EJSG), supports and empowers communities working on solutions to local environmental and public health issues. The Program assists recipients in building collaborative partnerships to help them understand and address environmental and public health issues in their communities. Successful collaborative partnerships involve not only well-designed strategic plans to build, maintain and sustain the partnerships, but also to work towards addressing the local environmental and public health issues.
EPA’s Role in Environmental Justice
On February 11, l994, the President issued Executive Order 12898, “Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations,” which identified three goals:
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To focus federal agency action on the environment and human health conditions in minority and low-income communities.
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To promote nondiscrimination in federal programs that substantially affect human health and the environment.
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To provide minority and low-income communities greater access to information on, and opportunities for public participation in, matters relating to human health and the environment.
The President encouraged federal agencies to reinvent the way the nation approaches environmental justice so that our day-to-day efforts would be more effective in protecting the public health and environment. EPA has a leadership role in helping federal agencies implement this executive order.
About the Small Grants Program
EPA recognized that community involvement was critical to environmental decision-making and made a commitment to invest resources in projects that would financially benefit affected communities. In fiscal year 1994, the Office of Environmental Justice established the Small Grants Program to provide financial assistance to eligible community groups (e.g., community-based grassroots organizations, churches, other nonprofit organizations, tribal governments) to address local environmental problems.
Each year, approximately $1 million are made available for the Environmental Justice Small Grants Program. These funds are divided equally among the 10 EPA regions, where the actual grants are awarded and managed. Awards range from $10,000 to $25,000 each. The amount awarded in a given year can vary depending on the availability of funds.
Grant proposals submitted for the Environmental Justice Small Grants Program are evaluated within the EPA region where the project is located through competitive review and evaluation. Award decisions are made based on established criteria, which include geographic balance, diversity of project recipients, and sustainability of benefits of projects after the grant is completed. The review criteria also require the applicant to demonstrate strong community involvement.
Goals
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Meaningfully involve and engage the community in planning the redevelopment and reopening.
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Build partnerships among community stakeholders through which environmental and other community issues concerning the former landfill site can be addressed.
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Ultimately, convert back into a useful community asset.
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Enhance the community’s understanding of environmental and public health information systems.
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Generate information about pollution in the community.
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Build community capacity for identifying local environmental justice problems.
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Involve the community in designing and implementing activities to address these concerns.
• Educate and train residents and youth to implement energy efficiency improvements in their neighborhoods.
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Facilitate information exchange among those who are affected by poisoning.
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Allow for the formation of an important partnership with Gardeners.
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Build community capacity to address environmental justice concerns by enabling community members to implement solutions to correct a local problem.
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Employ an environmental justice specialist to initiate community/grassroots/government interaction.
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Build capacity among youth to identify environmental justice problems, enhance problem-solving, and actively participate in solutions for affected communities.
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Hold the first Environmental Justice Awareness Conference.
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Train a core of neighborhood outreach leaders who live near the incinerator in the science and law of medical incineration, environmental networking, and grassroots organizing.
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Through these leaders, create a partnership between the community and the industry.
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Clean up trash, refuse, and other impacts to water quality in the Watershed.
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Identify wildlife and plants that grow in the Watershed.
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Identify riparian areas and possibly map these areas in the Watershed.
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Grow and develop relationships with tribal members and tribal entities.
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Learn more precisely the health and quality of life issues raised by living near freeways.
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Learn about air quality and mechanisms to protect the community from airborne toxins.
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Quantify, translate, and present the knowledge gained to the public in order to promote increased participation in environmental decision-making.
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Establish a working group of Americans familiar with NEPA training needs and challenges.
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Conduct a NEPA training needs assessment.
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Compile and assess existing NEPA training materials.
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Develop a simple resource brochure that covers the basics of the effects of the indoor environment on respiratory health, written for low-literacy understanding and produced in English and Spanish.
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Host a meeting for community leaders to learn about the environmental justice issues surrounding asthma and other respiratory illness.
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Disseminate information packages to all day care centers and elementary schools in the target neighborhood. Send packets to 80 pediatricians and respiratory specialists who might treat patients in the target area.
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Educate communities about the issues of sewage lagoons and the impacts these lagoons might have on the environment and human health.
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Participate in a health fair to further disseminate information to the public about clean water and solid waste disposal.
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Work with the Community Environmental Health Assessment Team to educate the affected counties and to demonstrate the benefits of using alternative solutions to sewage lagoons.
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Revive a lake monitoring database and collect more information.
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Initiate community-based partnerships.
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Create opportunities for future collaborative efforts in protecting surface water and ground water from polluted runoff.
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Utilize data to monitor interstate pollution and to develop regional strategies for reducing air pollution.
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Detect, assess, and evaluate the effects on and risks to human health related to hazardous substances.
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Survey, research, collect, and analyze data, which will be used to expand scientific knowledge and the community’s understanding of the effects of exposure to asbestos.
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Acquire contact information for as many of the identified individuals as possible to establish baseline.
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Detect, assess, and evaluate the effects on and risks to human health from hazardous substances.
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Ensure that the research relates to “hazardous substances,” as defined by the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) 101(14).
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Research, collect, and analyze data, which will be used to expand the scientific knowledge and understanding of hazardous substances being transported.
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Expand the communities’ scientific knowledge and understanding of hazardous substance issuese.
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Train youth in approved research techniques.
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Publish a report documenting research results and outlining appropriate measures the community
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Train project participants to make presentations and assist them in facilitating the delivery of workshops and demonstrations that illustrate methods and resources related to healthy air, water, and soil.
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Perform hands-on environmental restoration work.
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Disseminate relevant information at all project events and make pertinent information available at project sites in English, Spanish, and Tongan.
• Use research to analyze and understand how air quality affects local low-income and minority communities.
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Inform rural residents about the health hazards associated with the improper management and/or storage of waste materials on their properties.
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Use outreach and education to facilitate the collection and recycling of waste products.
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Reduce the negative health impacts associated with incinerating and stockpiling waste on rural properties.
• Conduct onsite assessments of qualifying low-income residents referred by home-care workers and housing officials.
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Hold formal, classroom-style presentations featuring lectures, slides, posters, props, brochures, and pamphlets.
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Educate residents and the communities about the correlation between indoor quality and their health.
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Estimate particulate matter (PM) emission levels from heavy-duty mobile sources in the area.
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Monitor the concentrations of PM from those sources present in indoor air to better understand the levels of pollution to which residents are exposed.
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Help residents and environmental community workers to better organize and advocate for environmental justice rights, to identify sources of diesel pollution, and to bring together residents and business to improve environmental conditions.
• Produce a report that reveals new information about hazardous air pollutant emissions.
• In the same report, evaluate the risks exposure to hazardous air pollutants pose to the respiratory health
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Improve communications among native peoples and communities on oil and gas issues.
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Enhance native community capacity to identify and address environmental justice issues related to oil and gas development.
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Promote and enhance the native communities’ understanding of information needed to address oil and gas issues.
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Promote safe fishing and fish preparation.
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Organize community participation in cleanup initiatives.
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Encourage more aggressive actions to limit future discharge of toxins into the river.
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Increase community awareness about contaminated sites and sources of industrial air pollution.
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Educate the general public and policymakers about disproportionate environmental health risks.
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Increase community involvement in the Community Coalition for Environmental Justice’s (CCEJ’s) outreach, education, and advocacy efforts on environmental justice issues.
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Transfer oversight responsibilities from government agencies to community leaders within the community.
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Foster the framework and relationships necessary to address environmental justice issues through community outreach and the recruitment of stakeholders within the community.
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Expand the scope of environmental education.
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Assist in integrating volunteers into the Program.
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Conduct outreach presentations to low-income youth and families.
•
Increase community understanding about environmental issues related to clean air and recycling.
•
Conduct a comprehensive outreach campaign via public radio.
•
Encourage public participation in protecting the environment.
•
Provide printed information in Spanish.
•
Create a process by whichyouth and their parents will become better educated and more involved with the environmental, programs and projects.
•
Increase the capacity of youth and their parents to recognize and participate in finding solutions to the community problems of litter, dumping in the sea and on land, and improper disposal of household hazardous waste.
| Air, indoor air, radiation, ozone, global warming, emissions trading | Office of Air and Radiation Wil Wilson (wilson.wil@epa.gov) |
6101A | 202-564-1954 | 202-564-1549 |
| Native American, indigenous peoples, Alaskan Natives | American Indian Environmental Office Jill Nogi (nogi.jill@epa.gov) |
4104 | 202-564-0804 | |
| Title VI | Office of Civil Rights Helena Wooden-Aguilar (wooden-aguilar.helena@epa.gov) |
1201-A | 202-343-9681 | |
| Enforcement, compliance, federal facilities, criminal enforcement (all media) | Office of Enforcement and Compliance Assurance Loan Nguyen (nguyen.loan@epa.gov) |
2201A | 202-564-4041 | 202-501-0701 |
| Legal | Office of General Council David Coursen (coursen.david@epa.gov) OGC legal advice is only available to EPA program offices, not to the public. |
2322-A | 202-564-0781 | 202-564-5541 |
| Toxic chemicals, pesticides, farmworkers, toxics release inventory | Office of Prevention, Pesticides & Toxic Substances Fred Jenkins (jenkins.fred@epa.gov) |
7409M | 703-308-9597 | |
| Research, technology development | Office of Reseach and Development Jason Edwards (edwards.jason@epa.gov) |
8104-R | 202-564-5568 | 202-565-2925 |
| Hazardous waste, land fills, Superfund, brownfields, spills | Office of Solid Waste and Emergency Response Pat Carey (carey.pat@epa.gov) |
5101T | 202-566-0199 | |
| Water, non-point sources, water discharges | Office of Water Alice Walker (walker.alice@epa.gov) |
4102T | 202-529-7534 | 202-269-3597 |
| Grants & contracts | Office of Admin. & Resources Mgt. Leo Gueriguian (gueriguian.leo@epa.gov) |
3102A | 202-564-0388 | 202-564-1887 |
| Information management | Office of Environmental Information Lorena Romero-Cedeno (romero-cedeno.lorena@epa.gov) |
2812T | 202-566-0978 | 202-566-0977 |
| Policy analysis | Office of Policy, Economics & Innovation Kelly Maguire (maguire.kelly@epa.gov) |
1807T | 202-564-2273 | 202-566-2220 |
| Congressional liaison | Office of Congressional & Intergovernmental Relations Carolyn Levine (levine.carolyn@epa.gov) |
1301A | 202-564-1859 | 202-501-1550 |
| Public affairs | Office of Public Affairs Doretta Reaves (reaves.doretta@epa.gov) |
1702A | 202-564-7829 | 202-501-1773 |
| Environmental justice | Office of Environmental Justice Jasmin Muriel (muriel.jasmin@epa.gov) |
2201A | 202-564-4287 | 202-501-0740 |
REGION 1 (CT, ME, MA, NH, RI, VT)
REGION 2 (NJ, NY, PR, VI)
REGION 3 (DE, DC, MD, PA, VA, WV)
REGION 4 (AL, FL, GA, KY, MS, NC, SC, TN)
REGION 5 (IL, IN, MI, MN, OH, WI)
REGION 6 (AR, LA, NM, OK, TX)
REGION 7 (IA, KS, MO, NE)
REGION 8 (CO, MT, ND, SD, UT)
REGION 9 (AZ, CA, HI, NV, AS, GU)
REGION 10 (AK, ID, OR, WA)
| (CT, ME, MA, NH, RI, VT) US EPA, REGION 1 Amy Braz One Congress Street, 11th Floor Boston, MA 02203-0001 E-mail: braz.amy@epa.gov |
617-918-1346 | 617-918-0346 |
| (NJ, NY, PR, VI) US EPA, REGION 2 Terry Wesley 290 Broadway, Room 2637 New York, NY 10007 E-mail: wesley.terry@epa.gov |
212-637-5027 | 212-637-4943 |
| (DE, DC, MD, PA, VA, WV) US EPA, REGION 3 Reginald Harris 1650 Arch St. (MC-3ECOO) Philadelphia, PA 19103 E-mail: harris.reggie@epa.gov |
215-814-2988 | 215-814-2905 |
| (AL, FL, GA, KY, MS, NC, SC, TN) US EPA, REGION 4 Cynthia Peurifoy 61 Forsyth Street Atlanta, GA 30303 E-mail: peurifoy.cynthia@epa.gov |
404-562-9649 | 404-562-9664 |
| (IL, IN, MI, MN, OH, WI) US EPA, REGION 5 Lara Lasky 77 West Jackson Blvd. C-14J Chicago, IL 60604-3507 E-mail: lasky.lara@epa.gov |
312-353-5614 | 312-582-5538 |
| (AR, LA, NM, OK, TX) US EPA, REGION 6 Shirley Augurson Fountain Place, 12th Floor 1445 Ross Ave., (6RA-D) Dallas, TX 75202-2733 E-mail: augurson.shirley@epa.gov |
214-665-7401 | 214-665-6648 |
| (IA, KS, MO, NE) US EPA, REGION 7 Althea Moses 901 North 5th Street (ECORA) Kansas City, KS 66101 E-mail: moses.althea@epa.gov |
913-551-7649 | 913-551-9649 |
| (CO, MT, ND, SD, UT) US EPA, REGION 8 Art Palomares 1595 Wynkoop St. Denver, CO 80202-1129 E-mail: palomares.art@epa.gov |
303-312-6053 |
303-312-6191 |
| (AZ, CA, HI, NV, AS, GU) US EPA, REGION 9 Deldi Reyes 75 Hawthorne Street (CED-1) San Francisco, CA 94105 E-mail: reyes.deldi@epa.gov |
415-972-3795 | 415-947-8026 |
| (AK, ID, OR, WA) US EPA, REGION 10 Running Grass 1200 Sixth Avenue (CRE-164) Seattle, WA 98101 E-mail: grass.running@epa.gov |
206-553-2899 | 206-553-7176 |
Release date: 09/03/2010
Contact Information: Dawn Harris-Young, (404) 562-8327, harris-young.dawn@epa.gov
(ATLANTA – Sept. 3, 2010) – The U.S. Environmental Protection Agency (EPA) directed the state of Florida to take specific measures to restore water quality to levels that protect the Everglades. This action, known as an “Amended Determination,” complies with a decision by Judge Alan Gold of the U.S. District Court – Southern District of Florida following lawsuits by the Miccosukee Tribe of Indians and the Friends of the Everglades.
The District Court's April 14 decision directed EPA to give clear and comprehensive instructions to Florida by September 3, 2010.
“With this action, EPA is complying with the law and acknowledging that we must do more together to restore clean water to the Everglades,” said Stan Meiburg, Acting Regional Administrator for EPA's southeastern region. “The State of Florida and the South Florida Water Management District have done much good work already and we hope to build on that by meeting both the substance and the spirit of Judge Gold's decision with this plan, and to achieve clean water standards as soon as possible.”
As required by the court's decision, EPA has notified Florida that clean water standards for phosphorus are not being achieved in all parts of the Everglades and that further reductions of phosphorus pollution are needed in the area south of Lake Okeechobee. Phosphorus is a naturally-occurring nutrient that, in excess, causes chemical and biological changes that degrade natural systems, such as wetlands, lakes and coastal areas. Excess phosphorus is being released into the Everglades as runoff primarily from farms to the north.
EPA has identified a comprehensive set of actions and milestones needed to meet clean water standards in the Everglades including a significant expansion of marsh treatment areas that decrease phosphorus levels in the runoff water before it is released to the Everglades. There are currently about 60,000 acres of these marsh treatment systems already in place or under construction. EPA's actions call for another 42,000 acres of treatment area. EPA believes that this expansion can largely be accommodated using existing land currently in State ownership, together with additional land the South Florida Water Management District recently agreed to purchase from the U.S. Sugar Corporation.
The Amended Determination spells out several actions which the State of Florida and the District will need to take, with the first deadlines coming in the next 60 days. An important short-term action is to amend existing permits for the discharges to the Everglades so they conform to Judge Gold's decision and incorporate discharge limits in the amended determination. Longer term actions include conducting environmental assessments, preparing engineering designs, and constructing new marsh treatment areas. The determination includes a detailed set of milestones for completing these tasks as soon as possible. Judge Gold has scheduled a hearing for October 7 on the amended determination.
| General Docket United States Court of Appeals for the Ninth Circuit |
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| 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., Defendants, and T. W. ARMAN, Defendant - Appellant. |
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Judge: EPA chief must show up in court over Everglades cleanup
Read more: http://www.miamiherald.com/2010/09/22/1835996/judge-reaffirms-order-for-epa.html#ixzz10JlCzm5B
CONTACT:
Jalil Isa
isa.jalil@epa.gov
202-564-3226
202-564-4355
FOR IMMEDIATE RELEASE
September 22, 2010
EPA Hosts Historic Meeting on Environmental Justice
Obama administration cabinet members show commitment to healthy environment and strong economy for all Americans
WASHINGTON – Today, for the first time in more than a decade, U.S. Environmental Protection Agency Administrator Lisa P. Jackson and White House Council on Environmental Quality Chair, Nancy Sutley, reconvened the Interagency Working Group on Environmental Justice (EJ IWG) in a meeting held at the White House. The meeting, attended by five cabinet members, demonstrates the Obama administration's dedication to ensuring all Americans have strong federal protection from environmental and health hazards. Pollution like dirty air and contaminated water can have significant economic impacts on overburdened and low-income communities, driving away investment in new development and new jobs and exposing residents to potentially costly health threats. This historic gathering marks a recommitment to advancing the mandate of Executive Order 12898, “ Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations , ” which states that each agency, with the law as its guide, should make environmental justice part of its mission.
The role of the EJ IWG is to guide, support and enhance federal environmental justice and community-based activities. By coordinating the expertise and resources of federal government agencies, the EJ IWG will work to identify projects where federal collaboration can support the development of healthy and sustainable communities. The EJ IWG will also seek opportunities to provide green jobs training in communities in need and promote a clean energy economy.
Attendees at the meeting included Attorney General Eric Holder, Department of Justice; Secretary Ken Salazar, Department of Interior; Secretary Shaun Donovan, Department of Housing and Urban Development; Secretary Ray LaHood, Department of Transportation; Administrator Martha Johnson, General Services Administration; Carol Browner, senior advisor to the president on energy and climate change; John Holdren, director of the White House Office of Science and Technology Policy; Melody Barnes, director of the White House Office of Domestic Policy; and representatives from the following federal agencies: Labor, Health and Human Services, Energy, Education, Homeland Security, Commerce, Army, Agriculture and Defense, among others.
“Environmental challenges in low-income and minority communities are barriers to opportunity. Dirty air, polluted water and contaminated lands degrade health and the environment while discouraging investments and economic growth,” said EPA Administrator Lisa P. Jackson. “We believe that the burdens these communities face are best approached with collaborative efforts, built on the strengths brought by a team of different federal agencies. Revitalizing this workgroup creates an important chance to work together on environmental justice issues that have held back the prosperity of overburdened communities for far too long.”
“This country was built on the promise of equal opportunity for all of us, yet low-income families and minority communities shoulder a disproportionate amount of pollution and environmental degradation. We cannot and will not ignore these disparities,” said Nancy Sutley, chair of the White House Council on Environmental Quality. ”As the chair of the Council on Environmental Quality, I am committed to ensuring that environmental justice isn't just an afterthought - it's an integral part of our mission.”
“In too many areas of our country, the burden of environmental degradation falls disproportionately on low-income and minority communities – and most often, on the children who live in those communities,” Attorney General Eric Holder said. “Our environmental laws and protections must extend to all people, regardless of race, ethnicity, or socioeconomic status which is why the Department of Justice is committed to addressing environmental justice concerns through aggressive enforcement of federal environmental laws in every community.”
“At the Department of Transportation, one of our top priorities has been promoting livable communities in collaboration with HUD and EPA,” said U.S. Transportation Secretary Ray LaHood. “Through coordinated investments that improve access to affordable and sustainable housing and transportation opportunities, together we can improve the quality of life for communities across America .”
“As stewards of our natural resources and history, the Department of Interior has a special obligation to protect and promote our nation's resources for all communities and all persons,” said Secretary of the Interior Ken Salazar. “Every American deserves a healthy environment in which they can live, learn and play.”
“HUD joins with our colleagues in the Obama administration to make an unprecedented commitment to combating environmental justice discrimination that all too often affect disadvantaged communities,” said HUD Secretary Shaun Donovan. “At HUD we are committed to providing equal access to housing, mitigating risks to communities in disaster-prone areas, ensuring homes are free of health hazards, and working to create sustainable and inclusive communities across America so that a family's success is not determined by the zip code they live in.”
During the meeting, some immediate next steps for the EJ IWG group were identified; these include:
· Hold monthly EJ IWG meetings, including assigning senior officials from each agency to coordinate EJ activities.
· Organize regional listening sessions in 2011.
· Hold follow-up EJ IWG Principals Meetings in April and September 2011.
· Each agency will be tasked to develop or update their EJ strategy by September 2011.
· Plan a White House forum for EJ leaders and stakeholders on environmental justice.
Administrator Jackson highlighted examples of EPA's environmental justice efforts:
· Plan EJ 2014 —A four-year roadmap to help EPA develop stronger community relationships and increase the agency's efforts to improve environmental and health conditions in overburdened communities. The plan includes three main sections: Cross-cutting Agency Strategies, Tools Development, and Program Initiatives.
· EJ in Rulemaking Guidance —The “Interim Guidance on Considering Environmental Justice During the Development of an Action” is a step-by-step guide that helps EPA staff consider environmental justice at key points in the rulemaking process.
· Sustainable Communities Partnership —A collaborative Department of Housing and Urban Development, Department of Transportation, and EPA partnership to improve access to affordable housing, more transportation options, and lower transportation costs while protecting the environment in communities nationwide.
The principles of environmental justice uphold the idea that all communities overburdened by pollution – particularly minority, low income and indigenous communities – deserve the same degree of protection from environmental and health hazards, equal access to the decision-making process and a healthy environment in which to live, learn, and work. EPA serves as the lead for environmental justice issues in the federal government.
More information on the Interagency Working Group on Environmental Justice:
http://www.epa.gov/environmentaljustice/interagency/index.html
View photos from the meeting:
http://blog.epa.gov/administrator/2010/09/22/epa-hosts-historic-meeting-on-environmental-justice/
Subpart E--Procurement Standards of this part. Sec. 1274.902 Purpose (XXX 1995)
The purpose of this cooperative agreement is to conduct a shared resource project that will lead to REMINERALIZATION OF DEPLETED CROP LANDS .
This cooperative agreement will advance the technology developments and research which have been performed on IRON MOUNTAIN MINE . The specific objective is to OPTIMIZE AVAILABILITY OF MINERALS IN SOIL FOR CROPS .
This work will culminate in BETTER AND SAFER FOOD . Sec. 1274.903
Responsibilities (XXX 1995). (a) This cooperative agreement will include substantial [ EPA, DOJ, NOAA, NASA, DOE, DOI, FEMA, FWS, CALIFORNIA] _____________participation during performance of the effort. _______ and the Recipient agree to the following Responsibilities, a statement of cooperative interactions to occur during the performance of this effort . ??? and the Recipient shall exert all reasonable efforts to fulfill the responsibilities stated below. (b) ??? Responsibilities. Since ??? contractors may obtain certain intellectual property rights arising from work for ??? in support of this agreement, ??? will inform Recipient whenever ??? intends to use ??? contractors to perform technical engineering services in support of this agreement. The following responsibilities are hereby set forth with anticipated start and ending dates, as appropriate: ------------------------------------------------------------------------ Responsibility Start End ------------------------------------------------------------------------ ------------------------------------------------------------------------ (c) Recipient Responsibilities. The Recipient shall be responsible for particular aspects of project performance as set forth in the technical proposal dated ____________, attached hereto (or Statement of Work dated ____________, attached hereto.) The following responsibilities are hereby set forth with anticipated start and ending dates, as appropriate: ------------------------------------------------------------------------ Responsibility Start End ------------------------------------------------------------------------ ------------------------------------------------------------------------ Sec. 1274.904 Resource Sharing Requirements (XXX 1995). (a) NASA and the Recipient will share in providing the resources necessary to perform the agreement. ??? funding and non-cash contributions (personnel, equipment, facilities, etc.) and the dollar value of the Recipient's cash and/or in-kind contribution will be on a ________ ( ??? ) - ________ (Recipient) basis.
WASHINGTON, D.C. - The Congressional Oversight Panel today released its September oversight report, "Assessing the TARP on the Eve of Its Expiration." The Panel found that, although the Troubled Asset Relief Program (TARP) provided critical support to the financial markets at a time when market confidence was in freefall, the program has been far less effective in meeting its other statutory goals, such as supporting home values, retirement savings, and economic growth.
Under its original authorization, the TARP would have expired at the end of 2009. Late last year, however, the Secretary of the Treasury exercised his legal authority to extend the program until October 3, 2010, the latest date authorized by statute. This month, in anticipation of the final expiration of the TARP's most significant authorities, the Panel explored the program's overall effectiveness. The Panel found that:
Although the TARP quelled the financial panic in the fall of 2008, severe economic weaknesses remain even today. Since the TARP was authorized in October of 2008, 7.1 million homeowners have received foreclosure notices. Since their pre-crisis peaks, home values have dropped 28 percent, and stock indices -- which indicate the health of many Americans' most significant investments for college and retirement -- have fallen 30 percent. Given that Treasury was mandated by law to use the TARP to address these measures of the economy, their lingering weakness is cause for concern.
The TARP's extension served primarily to extend the implicit guarantee of the financial system. When the Secretary extended the TARP, he stated that any new use of funds would be limited to providing mortgage foreclosure relief, extending capital to small and community banks, and supporting the securitization market. He also noted that extending the TARP would preserve his authority to intervene swiftly in the event of another financial crash -- essentially prolonging the government's "implicit guarantee" of the financial system. In practice, this second justification proved by far the more significant, as Treasury did not add any additional funding to any programs intended to address the specific economic weaknesses identified by the Secretary.
The TARP's "stigma" has grown and may prove an obstacle to future financial stability efforts. Treasury's policy choices have been increasingly constrained by public anger about the TARP. For example, the TARP is today so widely unpopular -- due in part to shortcomings in Treasury's transparency and its implementation of TARP programs -- that some banks refused to participate in the Capital Purchase Program for fear of losing customers. The unpopularity of the TARP may mean that the government will not authorize similar policy responses in the future. Thus, the TARP's greatest consequence may be that the government has lost some of its ability to respond to financial crises.
Economists surveyed by the Panel raised severe concerns about moral hazard. The Panel sought the input of four prominent economists on the effectiveness of the TARP. These experts generally agreed both that the TARP was necessary to stabilize the financial system and that it had been mismanaged and could pose significant costs far into the future. Further, the economists unanimously felt that the program created significant moral hazard. TARP offered its funding on relatively generous terms, without requiring participating institutions to enter liquidation or receivership, remove failed managers, or wipe out existing shareholders. The fact that the government chose not to impose such stringent costs meant that the TARP's moral hazard costs were much greater than necessary.
The full report is available at http://cop.senate.gov/. The Congressional Oversight Panel will continue to issue monthly reports evaluating the TARP until the Panel's statutory authority expires on April 3, 2011.
The Congressional Oversight Panel was created to oversee the expenditure of the Troubled Asset Relief Program (TARP) funds authorized by Congress in the Emergency Economic Stabilization Act of 2008 (EESA) and to provide recommendations on regulatory reform. The Panel members are: J. Mark McWatters; Richard H. Neiman, Superintendent of Banks for the State of New York; Damon Silvers, Policy Director and Special Counsel for the AFL-CIO; Kenneth Troske, William B. Sturgill Professor of Economics at the University of Kentucky; and Elizabeth Warren, Leo Gottlieb Professor of Law at Harvard Law School.
Over the weekend of May 1, 2010, Nashville, Tennessee and surrounding areas experienced what is being called a 1000 year flood.
Lives were lost. Homes were damaged, businesses were shut down, precious people and habitats and dwellings were swept away.
Amidst devastation and tragedy, we held together and found the blessing of each other: neighbor helping neighbor, congregations and grassroots groups springing into action while the national news hadn't quite caught up.
We are Nashville .
Our 5th Annual Mother's Day Peace Parade was preempted by flood relief. Instead, here we have the virtual Pennies & Prayers Parade.
We are Nashville. And all who love her. You are warmly encouraged to participate in action -- a) collect pennies with our children, turn them in to soon to be designated collection spots across town, and / or donate through paypal using the button here, or by emailing penniesandparades@gmail.com . Bridge Builders, a peace and social justice club for children of all ages and their caregivers will make a lump sum donation of all funds taken in to the Community Foundation of Middle Tennessee. b) upload your photo and INTERFAITH prayer(s) or inspirational text here on parade by emailing to paigelabab.penniesandprayers@blogger.com.
Rainbow
I Know where this rainbow's pot of gold is. It's this wonderful city, county, state, and all the amazing people who live here. Even after all the destruction, there is still beauty and hope.
By David Lawder
WASHINGTON | Tue Sep 21, 2010 7:46pm EDT
WASHINGTON (Reuters) - The top bailout cop said evidence of fraud among banks that sought taxpayer funds was on the rise, and some of his investigations involve amounts exceeding $550 million.
Neil Barofsky, the special inspector general for the Troubled Asset Relief Program, told the Reuters Washington Summit on Tuesday that his office has 120 open investigations of banks that "reflect the full array of banks that applied for and received TARP funding."
These cases are likely to lead to criminal charges for more bank executives and founders, Barofsky said.
"I just see those numbers going up," he added.
Investigations by the SIGTARP, as his operation is known, so far have led to charges against eight bank executives, including Lee Farkas, former head of bankrupt mortgage lender Taylor, Bean and Whitaker.
Farkas is facing federal charges related to his participation in a scheme to fraudulently obtain $553 million in TARP funds for Montgomery, Alabama-based Colonial Bancshares. The investigation prevented the funds from being disbursed, and Colonial subsequently failed.
Barofsky said that some cases could top the Colonial case in terms of the dollar amount of attempted or actual theft from taxpayers. "We have investigations in, above, and below that range," he added.
The SIGTARP operation is expanding its staff and has opened branch offices in New York, Atlanta, Los Angeles and San Francisco to pursue these investigations, even as the $700 billion bailout program is set to cease new investments on October 3.
Barofsky, who rides around Washington in a black "plainclothes" Chevrolet Impala equipped with a siren and emergency lights, said SIGTARP will hit its peak staff and activity in the next two years, roughly trailing TARP's peak activity by about a year.
The operation will stay in business until the last dollar of bailout investments is repaid or written off, and because some programs could last 10 years, SIGTARP may have another eight to run. But Barofsky said it would likely scale back within a few years as investments are exited.
Barofsky also said he will audit the General Motors Co GM.UL initial public offering soon after it is completed, with the aim of correcting any deficiencies in the process to aid the government's exit from other investments, such as Chrysler Group, insurer American International Group ( AIG.N ) and automotive lender GMAC Financial Services.
AIG PROBE CONTINUING
Barofsky also said his staff is deep into an investigation of the New York Federal Reserve Bank's disclosures about controversial taxpayer-funded payments to AIG counterparty banks as part of the insurer's massive bailout.
Last January, the U.S. House of Representatives Committee on Oversights and Investigations, subpoenaed hundreds of thousands of pages of Fed documents involving the $62 billion in payments to Wall Street and foreign bank to liquidate credit default swap contracts written by AIG. However, the Fed did not provide the same documents to SIGTARP for a previous audit it conducted on the same bank payments.
Disclosure of the payments, often referred to as a "back door bailout" for banks, came months after they were made and fueled public anger over the $180 billion AIG rescue. Treasury Secretary Timothy Geithner, who ran the New York Fed at the time, denied any involvement in the disclosure decisions, but faced calls in Congress to resign over the controversy.
IRON MOUNTAIN MINE CATALYST BREAKSDOWN PESTICIDE RESIDUES ,SOIL HAZARD DETOX - SDH - $895/TON/ $50 per 5 gal. plus shipping fax to 530-275-4559
Christ Statue and Spiritual Sanctuary MR. T.W. "TED" ARMAN, OWNER OF IRON MOUNTAIN MINE, LTD., PRESIDENT, CHAIRMAN, CEO OF IRON MOUNTAIN MINES, INC. OWNER OF IRON MOUNTAIN MINE, IRON MOUNTAIN, THE COPPER MOUNTAIN MINING CO., MOUNTAIN COPPER CO., IRON MOUNTAIN INVESTMENT CO., THE ARMAN CONSOLIDATED MINES, THE ARMAN CONSOLIDATED MINING CLAIMS, THE ARMAN MINES EQUITABLE TRUSTS, THE ARMAN SOVEREIGN WAR ON POVERTY FUND, THE ARMAN MINES CHARITABLE FOUNDATION, THE ARMAN MINES MINISTRY OF NATURAL RESOURCES FEDERATION, THE ARMAN LOST CONFIDENCE MINE, THE ARMAN AGRICULTURAL COLLEGE, 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.
OLD WORLD MIX - MINERALS & METALS, PAINTS & STAINS, CATALYSTS & NANOMATERIALS, GRANITE & PORPHYRY, AGGREGATES & BUILDING STONE, COPPER, ZINC, SILVER, & GOLD
CALIFORNIA - EPA DELISTING IRON MOUNTAIN MINE! PROCLAMATION TERMINATING THE NATIONAL EMERGENCY
"the revised PHG of 300 g/L is two orders of magnitude greater than the applicable numeric chemical-specific standards identified in ROD 5 for the protection of freshwater aquatic life." Rick Sugarek, EPA project manager for Iron Mountain Mine Superfund cleanup, 2008 5 year review. (How much is two orders of magnitude damages?)
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;
EPA has not yet implemented ICs (Institutional Controls) as required at the IMM Superfund Site in the five signed RODs
(EPA, 1986; EPA, 1992; EPA, 1993; EPA, 1997; EPA, 2004)
Christ Statue and Spiritual Sanctuary
CERCLA
allows PRPs to seek contribution from one another in order to
apportion response costs equitably. But CERCLA bars contribution
claims against PRPs that have obtained administratively
or judicially approved settlements with the government.
CERCLA thus provides an incentive for PRPs to settle by
leaving non-settling PRPs liable for all of the response costs
not paid by the settling PRPs.
We consider a question that has split the federal courts:
May a non-settling PRP intervene in litigation to oppose a
consent decree incorporating a settlement that, if approved,
would bar contribution from the settling PRP? We join the
Eighth and Tenth Circuits in holding that the answer is “yes.”
NU Online News Service, Sept. 16, 3:26 p.m. EDT
WASHINGTON — American International Group (AIG) still relies largely on government funding for capital and liquidity, and “most observers” expect that the AIG Investment Program will generate “significant losses” to U.S. taxpayers, according to a new government report.
The Congressional Oversight Panel's September report on the Troubled Asset Relief Program (TARP)—called “Assessing the TARP on the Eve of Its Expiration”— also carries other distressing news.
It acknowledges that the program provided “critical support” to the financial markets at a time when market confidence was in freefall, but it states the program has been far less effective in meeting its other statutory goals, such as supporting home values, retirement savings, and economic growth.
And, because it failed to stem the decline in value of the assets of Americans, especially their securities and homes, the report says the TARP program is very unpopular amongst the public.
“Thus, the greatest consequence of the TARP may be that the government has lost some of its ability to respond to financial crises,” the report notes.
It adds that since TARP was authorized in October of 2008, 7.1 million homeowners have received foreclosure notices.
“Since their pre-crisis peaks, home values have dropped 28 percent, and stock indices—which indicate the health of many Americans' most significant investments for college and retirement—have fallen 30 percent,” the report states.
“Given that Treasury was mandated by law to use the TARP to address these measures of the economy, their lingering weakness is cause for concern,” according to the report.
The COP report was released on the “eve of the expiration of the program,” which is scheduled to end Oct. 3.
“Popular anger remains high about taxpayer support of America's largest banks, and that anger has only intensified in light of the continuing economic turmoil,” the report states.
The TARP's unpopularity may mean that, unless the program's effectiveness can be convincingly demonstrated, the government will not authorize similar policy responses in the future, according to the report.
Regarding AIG, it says the latest estimates by the Congressional Budget Office, the Office of Management and Budget and the Treasury project losses in the amount of $36 billion, $50 billion, and $45 billion, respectively, although the estimated losses have steadily decreased since the inception of the credit facility.
The report notes that Treasury's ability to recoup its investment depends on the value of AIG's common stock at the time Treasury sells its interests.
Therefore, the report states, the value of Treasury's substantial investment in AIG and the size of any gain or loss are dependent on many external variables, and “the protracted investment in AIG continues to create significant risks to taxpayers.”
The report adds that Treasury has invested approximately $47.5 billion in TARP funds in AIG. This investment is comprised of non-cumulative preferred stock in the amount of $40 billion and an equity capital facility under which AIG has drawn down $7.5 billion.
Including the $1.6 billion in unpaid dividends, AIG's outstanding TARP assistance equals $49.1 billion, the report explains.
In addition, AIG must repay $79.1 billion in outstanding debt to the Federal Reserve Bank of New York.
“The timing of Treasury's exit is complicated by the fact that AIG is not permitted to repay Treasury until it has fully repaid FRBNY,” the report states.
Treasury, the Federal Reserve, and AIG have stated that they are confident that AIG will fully repay FRBNY in the near future without “jeopardizing its financial viability,” according to the report.
"All our constitutional laws and our system of government are based upon the fact that the government is not permitted to do anything that violates this system... but if the government is in a position to increase the quantity of money, all these provisions become absolutely meaningless and useless." — Ludwig von Mises
American International Group Inc. still owes the federal government about $128.2 billion, and the Troubled Asset Relief Program's Congressional Oversight Panel has issued a report suggesting it's still hard to say whether that taxpayer investment will pay for itself.
"Whether Treasury will be able to exit its investments in AIG without substantial losses turns on AIG's ability to produce strong operating results and demonstrate that it is capable of functioning as a stand-alone investment-grade company without government support," the report said.
An attempt to reach AIG (NYSE: AIG) for comment on the TARP report wasn't immediately successful.
"AIG still relies largely on government funding for capital and liquidity, although there are recent indications that AIG is planning to issue bonds," the report said. "Treasury's ability to recoup its investment depends on the value of AIG's common stock at the time Treasury sells its interests. Therefore, the value of Treasury's substantial investment in AIG and the size of any gain or loss are dependent on many external variables, and the protracted investment in AIG continues to create significant risks to taxpayers."
The company's outstanding TARP help equals $49.1 billion, while its debt to the Federal Reserve Bank of New York is $79.1 billion. AIG has to repay FRBNY before it can turn to settling its debt with the Department of the Treasury.
In general, the report reflected increasing optimism in the federal agencies that AIG may recover, but it points out the company has offered no concrete time line for debt repayment.
"At this time, AIG cannot afford to divert the cash it is generating through its insurance operations towards repaying FRBNY, because it is still quite weak financially," the report said. "Both the timing of the government's exit from its involvement with AIG and the ultimate return on its investment are difficult to predict with confidence."
The panel's report also included views from academic experts. It quoted Alan Blinder, a professor of economics and public affairs at Princeton University, as saying that "regarding stabilizing institutions like AIG, one has to count TARP as a huge success." He said it threw a "security blanket around every large entity. This is not something you'd want to do under normal circumstances but was appropriate at the time. And the net cost to the taxpayers for this part of the program will, in the end, be very small. In that sense, TARP looks like a bargain."
Because Treasury will sell off the remaining warrant positions it holds in Hartford Financial Services Group Inc. and Lincoln National Corp., ending the financial connection between the two major insurers and the federal government, that leaves AIG as the only insurance company financially connected to TARP (BestWire, Sept. 9, 2010).
TARP is nearing its statutory expiration on Oct. 3.
AIG stock was trading at $36.67 on the afternoon of Sept. 20, up 2.89% from the previous close. Most AIG insurers have current Best's Financial Strength Ratings of A (Excellent).
ARMAN, TED W 2010-0021996 RESCISSION 7/22/2010
A Rule by the Environmental Protection Agency on 09/17/2010
EPA is issuing significant new use rules (SNURs) under section 5(a)(2) of the Toxic Substances Control Act (TSCA) for two chemical substances which were the subject of Premanufacture Notices (PMNs). The two chemical substances are identified generically as multi-walled carbon nanotubes (MWCNT) (PMN P-08-177) and single-walled carbon nanotubes (SWCNT) (PMN P-08-328). This action requires persons who intend to manufacture, import, or process either of these two chemical substances for a use that is designated as a significant new use by this final rule to notify EPA at least 90 days before commencing that activity. EPA believes that this action is necessary because these chemical substances may be hazardous to human health and the environment. The required notification would provide EPA with the opportunity to evaluate the intended use and, if necessary, to prohibit or limit that activity before it occurs. Show citation box
Significant New Use Rule (SNUR); Chemical-Specific SNURs To Extend Provisions of Section 5(e) Orders
21 actions from June 6th, 1994 to December 2010
Release date: 08/27/2010
“EPA today denied a petition submitted by several outside groups for the agency to implement a ban on the production and distribution of lead hunting ammunition. EPA reached this decision because the agency does not have the legal authority to regulate this type of product under the Toxic Substances Control Act (TSCA) – nor is the agency seeking such authority.
“EPA is taking action on many fronts to address major sources of lead in our society, such as eliminating childhood exposures to lead; however, EPA was not and is not considering taking action on whether the lead content in hunting ammunition poses an undue threat to wildlife.
“As there are no similar jurisdictional issues relating to the agency's authority over fishing sinkers, EPA – as required by law – will continue formally reviewing a second part the petition related to lead fishing sinkers.
“Those wishing to comment specifically on the fishing tackle issue can do so by visiting http://www.regulations.gov . EPA will consider comments that are submitted by September 15.”
The mayor of Pebbleton announces that, since the
colored flowers are so rare and valuable, they are
going to be used as money, with petals for change.
Is this a good idea? What qualities does a good
form of money have? Why? Which of these qualities
do flowers have and which do they lack? What
would happen to Pebbleton’s economy if someone
then discovered a new sunlit cavern with thousands
of flowers growing in it? Should someone control
the growth of those flowers? Who?
CONTACT:
Stacy Kika
Kika.stacy@epa.gov
202-564-0906
202-564-4355
Cathy Milbourn
Milbourn.cathy@epa.gov
202-564-7849
202-564-4355
FOR IMMEDIATE RELEASE
September 20, 2010
EPA Launches Green Power Community Challenge Nationwide
Local governments expand use of green power
WASHINGTON – The U.S. Environmental Protection Agency is kicking off its national “Green Power Community Challenge,” a year-long campaign to encourage cities, towns, villages, and Native American tribes to use renewable energy and fight climate change. Purchases of green power help to prevent greenhouse gas emissions and also help accelerate the development of new renewable energy capacity across the United States .
To participate in the challenge, a local government must join EPA's Green Power Partnership and use green power in amounts that meet the program's purchase requirements. The local government must also conduct a campaign to encourage local businesses and residents to collectively buy or produce green power on-site in amounts that meet EPA requirements.
More than 30 cities and towns in Alaska, California, Colorado, Connecticut, Maryland, Oregon, Pennsylvania, Texas, Utah, Washington, and Wisconsin have become green power communities, and are collectively buying more than 900 million kilowatt-hours (kWh) of green power annually, equivalent to the carbon dioxide emissions (CO2) from the electricity use of nearly 80,000 average American homes.
The campaign is designed to expand upon the successes of the program, aiming to double the total aggregate amount of green power used by EPA Green Power Communities. As part of the national campaign, communities will compete to see which one can use the most green power and which one can achieve the highest green power percentage of total electricity use. There will be a separate award for each category with national recognition and special attention from EPA. The winners will be announced in September 2011.
During the challenge, from Sept. 20, 2010, to Sept. 1, 2011, communities will be ranked for the two award categories on EPA's website on a quarterly schedule; EPA will also provide technical assistance to help participants increase their green power usage.
Green power is generated from renewable resources such as solar, wind, geothermal, biomass, biogas, and low-impact hydropower. Green power resources produce electricity with an environmental profile superior to conventional power technologies, and produce no net increase of greenhouse gas emissions.
More information on EPA's Green Power Community Challenge: http://www.epa.gov/greenpower/gpcchallenge
More information about EPA's Green Power Communities:
http://epa.gov/greenpower/communities/index.htm
September 20th, 2010 02:15am
By Dan Verel, Business Journal Staff Reporter
September 15, 2010 by admin
Zinc Air, Incorporated out of Montana has licensed the rights for a zinc air fuel cell developed by a retired chemist at the Lawrence Livermore National Laboratory (LLNL). The good news for hydrogen hybrid vehicle makers it that zinc is seen as a replacement for expensive platinum in fuel cells and not so environmentally friendly imported lithium in lithium-ion batteries.
According to the LLNL website, “The technology enables safe, lower-cost, clean, quiet, reliable and environmentally friendly power generation. Zinc Air Fuel Cell (ZAFC) products combine atmospheric oxygen from the air we breathe with zinc metal pellets as the fuel to generate electricity.
“In operation, the fuel cell consumes all of the zinc and is operationally quiet, providing instantaneous electrical energy with no greenhouse gas emissions . It also doesn't contain any of the toxic elements found in lithium batteries or other battery chemistries.”
Here is a high resolution image that shows how the zinc pellets are recycled in an environmentally friendly manner. Using zinc would mean less reliance on foreign countries for both platinum for fuel cells and lithium for the hybrid batteries.
According to Zinc Air Inc. President Dave Wilkins, “At the moment, most in the auto industry are currently looking to lithium batteries as the power solution for electric vehicles , but those batteries are manufactured primarily outside of the United States and are not cost effective for widespread use. There is enough readily available zinc just in the United States to produce billions of these batteries.”
So, using zinc instead of platinum or lithium would solve four problems:
1. First, replacing higher costing materials with lower costing zinc
2. Second, less environmental impact if zinc is used
3. Third, more reliance on U. S. resources for zinc rather than other countries for the other materials already listed
4. More U. S. jobs for mining zinc and manufacturing fuel cells and batteries
The proverbial ball is in Zinc Air's court. Now, let's see if they run with it.
Battery using a metal particle bed electrode
Abstract
A zinc-air battery in a case including a zinc particle bed supported adjacent the current feeder and diaphragm on a porous support plate which holds the particles but passes electrolyte solution. Electrolyte is recycled through a conduit between the support plate and top of the bed by convective forces created by a density of differential caused by a higher concentration of high density discharge products in the interstices of the bed than in the electrolyte recycle conduit.
| Inventors: | Evans; James V. (Piedmont, CA) , Savaskan; Gultekin (Albany, CA) |
| Assignee: | The Regents of the University of California (Oakland, CA) |
| Appl. No.: | 07/433,475 |
| Filed: | November 8, 1989 |
Additional Applications
Solid Zinc Strip has a unique set of attributes that make it perfect for a variety of applications.
For instance, Braille printing plates made from
Solid Zinc Strip create avery pronounced embossing that will not tear or stain paper during the printing process. The self-annealing properties of solid zinc strip allow these plates to be used for many years. Finning pads are made from solid zinc strip and are used to polish eyeglass lens.
All you have to do is look at Zinc's unique set of attributes to know that its uses are wide and varied and provide some very innovative solutions.
EPA Marks 20 th Anniversary of the Pollution Prevention Act of 1990
WASHINGTON — This year during Pollution Prevention Week, September 19-25, the U.S. Environmental Protection Agency marks the 20 th anniversary of the Pollution Prevention Act of 1990. The act laid the groundwork for reducing pollution at its source and protecting children and families from exposure to harmful pollutants, as well as significantly reducing the amount of contaminants released into the environment. EPA Administrator Lisa P. Jackson is urging the public to recommit to the goal of pollution prevention in their everyday lives.
"Protecting public health and the environment begins with pollution prevention. We're taking proactive steps that minimize pollution at the source and keep environmental threats from reaching our communities," said EPA Administrator Lisa P. Jackson. "The Pollution Prevention Act of 1990 gave our nation a strong start in this direction. Twenty years later, we must work with our government and industry partners to foster clean innovations and sustainable strategies that expand and enhance pollution prevention across the country."
EPA is focused on integrating of pollution prevention goals into all its programs and has already achieved results in many agency programs:
· In 2009 alone, Americans with the help of Energy Star saved $17 billion dollars on their energy bills and reduced greenhouse gas emissions equivalent to those of 29 million cars.
· WasteWise celebrated 15 years of environmental results in 2009, with 2,860 members contributing to the prevention and recycling of more than 160 million tons of waste (or 320 billion pounds).
· Since the program began in 2003, Plug-In To eCycling partners have recycled more than 360 million pounds of electronics, including televisions, computers and cell phones.
· WaterSense has helped consumers save 46 billion gallons of water and $343 million in water and sewer bills since the program's inception in 2006.
· Green electronics, Green Chemistry and Green Engineering, and the Design for the Environment (DfE) programs have reduced the use of toxic materials in everyday items like computers and household cleaners and give consumers the choice to use safer products since the programs began in 2006, 1995 and 1992 respectively. To day, more than 2,000 products carry the DfE label.
EPA has also been working closely with states, local governments, international organizations, environmental groups and industry to identify pollution prevention opportunities. One example is the Economy, Energy and Environment (E3) Program, which is helping manufacturers reduce costs and become more efficient, competitive and sustainable in a global market.
More information on Pollution Prevention Week and what you can do: http://epa.gov/p2week/
Participate in Pollution Prevention Week webinars—Journey to Sustainability: http://epa.gov/p2week/#web
Pollution Prevention Week radio actualities: http://www.epa.gov/ocspp/soundbites.html
Posted on September 22, 2010 | Filed Under: Clean Water , Protecting Rivers , Global Warming
Jenny Hoffner
Director, Water Supply
Posted by Brian Allmer on September 21, 2010
The National Mining Association on Friday filed a second lawsuit in federal district court to block implementation of tougher EPA water-quality ?guidelines for “mountaintop removal” and other coal-mining practices in six Appalachian states.
The group is arguing the court should suspend the guidelines because of their economic damage to the coal states. It is the second lawsuit NMA has filed in district court against the guidelines. In an initial filing in July, the group argued the guidelines violated federal law by circumventing requirements for public notice and comment and receiving a peer review.
“There's an illicit policy being implemented based on bogus science which is already having real economic consequences,” said National Mining Association spokesman Luke Popovich. “It is, in effect, in our view, contributing to the delays that we've seen in getting permits approved and therefore adding to the stress throughout the coal communities in the six states they apply to.”
The guidelines were issued in draft form April 1. EPA is taking publi comment until Dec. 1 and will issue final guidelines by next April. But the agency is already using the released guidelines to clarify how? future Clean Water Act permits are being issued for coal-mining practices in the six states.
NMA is also arguing the guidelines meet “all the legal definitions of regulations” and should be treated to the same process before they become final and are actually used, Popovich said.
Coal-state lawmakers from both parties have joined the fight, as well.
A bipartisan group of 15 House lawmakers — led by Rep. Hal Rogers (R-Ky.) and including five Democrats — has so far backed a bill introduced last week to block funding next year for EPA to implement the guidelines.
In addition, Popovich said one coal-state Democratic senator has had “serious discussions” about offering a companion bill, which could? come up in this fall's spending debate. The issue was raised at a pro-coal rally attended by House and Senate coal-state lawmakers from both parties on Capitol Hill last week.
EPA has countered that the guidelines are based on sound science. EPA Administrator Lisa Jackson in a statement when they were released said that the “people of Appalachia shouldn't have to choose between a clean, healthy environment in which to raise their families and the jobs they need to support them.”
As reported by the U.S.-based Waste Business Journal ( www.wastebusinessjournal.com ), a settlement resolving litigation over the U.S. Environmental Protection Agency's (EPA's) controversial definition of solid waste (DSW) rule is expected soon.
Lisa Feldt, deputy assistant administrator for EPA's Office of Solid Waste and Emergency Response, told the Environmental Council of the States' annual meeting on August 30, 2010 that "we are in settlement talks and hope to have an announcement soon."
The current rule, which dates from the Bush administration, provides exemptions for the management of certain wastes under Resource Conservation & Recovery Act requirements in an effort to promote recycling.
In its lawsuit, Sierra Club alleges that the exemptions go too far and will lead to dangerous "sham" recycling at facilities located disproportionately near low-income and minority communities.
Sierra Club also filed a petition for reconsideration with EPA urging the agency to repeal the rule.
Last year, EPA said it was considering more precisely defining how industry must "contain" recyclable materials and that it would require more elaborate notification by companies seeking exemptions.
In January, EPA released a draft methodology for analyzing the rule's impacts on low income and minority communities.
Monday, September 20, 2010
PORTLAND, Ore. (AP) -- An environmental group is challenging the way the U.S. Army Corps of Engineers is developing gravel mining regulations for rivers in Oregon.
The Northwest Environmental Defense Center filed a lawsuit Monday in U.S. District Court in Portland alleging the corps kept salmon advocates out of meetings to develop standards for taking gravel out of the Chetco River in southwestern Oregon.
The complaint claims the corps failed to heed environmental concerns raised by state and federal agencies.
The lawsuit also seeks to overturn a NOAA Fisheries Service finding that mining in the Chetco under terms of a proposed permit would not push threatened coho salmon closer to extinction.
Spokespeople for the agencies said they could not comment on the lawsuit.
The plan shifts the fire authority to our public safety group. That change won't cost the county money. The described public safety group includes the sheriff's department as a better fit for the fire authority. "The ability to have one person making decisions is absolutely critical,"
Due Process and the EPA's Enforcement of CERCLA: The Problem with Big Business Challenges to a Small Business Problem
Scott Corley
affiliation not provided to SSRN
April 15, 2010
Abstract:
In the past few years, a number of challenges have been mounted against the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). Specifically a challenge mounted by the General Electric Company has asserted that the Environmental Protection Agency's (EPA) pattern and practice of enforcing CERCLA violates due process under the Ex Parte Young and Mathews v. Eldridge tests.
Using an assertion that constitutional challenges to CERCLA are only likely to succeed when (1) the property interest infringed by the government is not strictly monetary; (2) the statute calls for a complete lack of pre-deprivation procedures; and (3) the statute's purported delay of review actually results in the complete preclusion of review, this paper argues that the EPA's enforcement of CERCLA raises serious constitutional concerns when it is applied against small businesses, but not when it is enforced against large corporations. This is because large corporations like GE will be able to bear the decontamination costs associated with CERCLA and still mount judicial challenges at the end of the process while smaller businesses will lose financing due to potentially astronomical environmental cleanup costs and penalties that can escalate at a rate of nearly $1 million per month. The result is that the statute's purported delay of review actually completely precludes review for smaller businesses but not for large corporations.
For this reason, the strongest argument that can be made concerning the constitutionality of the EPA's enforcement of CERCLA arises when environmental liabilities are imposed on small businesses. Ultimately, this context provides the clearest evidence that certain provisions of CERCLA have been enforced in a way that has violated the due process rights of certain potentially responsible parties (PRPs).
Keywords: EPA, CERCLA, Pattern and Practice, Due Process, General Electric v. Jackson, PRPs, UAOs, Mathews v. Eldridge, Ex Parte Young
Working Paper SeriesEPA 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.
This is our report on the subject evaluation conducted by the Office of Inspector General (OIG) of the U.S. Environmental Protection Agency (EPA). This report contains findings that describe the problems the OIG has identified and corrective actions the OIG recommends. This report represents the opinion of the OIG and does not necessarily represent the final EPA position. Final determinations on matters in this report will be made by EPA managers in accordance with established audit resolution procedures.
The estimated cost of this report – calculated by multiplying the project’s staff days by the applicable daily full cost billing rates in effect at the time and adding travel costs – is $660,519.
Action Required
In accordance with EPA Manual 2750, you are required to provide a written response to this report within 90 calendar days. You should include a corrective actions plan for agreed-upon actions, including milestone dates. Your response will be posted on the OIG’s public Website, along with our comments on your response. Your response should be provided in an Adobe PDF file that complies with the accessibility requirements of section 508 of the Rehabilitation Act of 1973, as amended. If your response contains data that you do not want to be released to the public, you should identify the data for redaction. We have no objections to the further release of this report to the public. This report will be available at http://www.epa.gov/oig.
If you or your staff have any questions regarding this report, please contact Wade Najjum at (202) 566-0832 or najjum.wade@epa.gov, or Dan Engelberg at (202) 566-0830 or engelberg.dan@epa.gov.
EPA’s Enforcement Performance Has Been Questioned
In 2005, EPA initiated the State Review Framework, a formal process using standardized criteria, collaboratively developed by OECA, EPA regions, States, and the Environmental Council of the States, to gauge State performance in compliance assurance and enforcement. EPA wanted to increase its oversight inspections and other direct actions in the States. EPA reviewed State data, inspection and enforcement files, negotiated commitments, management discussions with the State, and other existing assessments. Through its reviews, EPA identified four programmatic deficiencies in State enforcement: data quality, identification of significant violations, the timeliness of enforcement actions, and penalties.
In October 2009, the EPA Administrator testified before the House Transportation and Infrastructure Committee that EPA was falling short of expectations for effective and fair enforcement of the CWA:
Data available to EPA shows that, in many parts of the country, the level of significant non-compliance with permitting requirements is unacceptably high and the level of enforcement activity is unacceptably low. For example, one out of every four of the largest Clean Water Act dischargers had significant violations in 2008. Many of these violations were serious effluent violations or failure to comply with enforcement orders. The government’s enforcement response to these violations is uneven across the country. For example, a violation in one State results in the assessment of mandatory minimum penalties, while in another State, no enforcement action is taken for the same violation. This situation creates a competitive disadvantage for States that are enforcing the law. We need to change this. Strong and fair compliance and enforcement across the country is vital to establishing a level playing field for industrial facilities, preventing some regions from attempting to achieve an economic advantage over others.
Both GAO and the EPA OIG have frequently reported on problems with the EPA-State enforcement relationship, noting key issues such as data quality, identification of violations, issuing enforcement penalties and other enforcement actions in a timely and appropriate manner, and general oversight issues. See Appendix B for a list of reports on these issues.
In its October 2009 testimony before the House Transportation and Infrastructure Committee, GAO reported that longstanding issues impact EPA and State enforcement efforts.2 For example, findings from a GAO enforcement report in 2000 demonstrated that local variations among EPA’s regional offices led to inconsistencies in the actions they take to enforce environmental requirements.3 In 2004, the EPA OIG responded to a congressional request to review the Region 3 NPDES program.4 In part, the OIG found that the MOAs between the States and Region 3 were all more than 10 years old at the time and included outdated requirements. These MOAs had not been revised as of the date of this report.
1 Testimony of Lisa P. Jackson, Administrator, U.S. Environmental Protection Agency, Before the Committee on Transportation and Infrastructure, U.S. House of Representatives, October 15, 2009. http://www.epa.gov/ocir/hearings/testimony/111_2009_2010/2009_1015_lpj.pdf.
MOAs Are Missing Key Regulatory Requirements
MOAs were missing key requirements of Title 40 CFR 123.24. MOA documents also lacked MOA-specific program regulations contained in Title 40 CFR 123.26 and 123.27. For each of the 46 criteria, OIG rated the MOA as a “0” (does not address this element), “1” (addresses the element in some way), or “2” (addresses the element verbatim or in synonymous language). Figure 2-1 shows that across all regulatory criteria, MOAs did not contain 39 percent of the criteria, and that 61 percent of regulatory criteria are either not addressed or only partially addressed. EPA should define the requirements for management control of a nationally consistent enforcement program, and then review each State MOA to determine which MOAs are adequate and which MOAs need to be revised.
MOAs did not address key regulatory requirements for MOA documents. For example, the CFR requires that States establish data management systems to support their compliance evaluation activities. Twenty percent of the MOAs did not contain any language about a data management system. This does not mean the State does not have such a system or that the system is not discussed in another document. However, because the primary, required document, the MOA, does not mention it, EPA cannot readily determine whether there is nationwide uniformity in data management systems.
MOAs also did not include a number of the additional regulatory program requirements contained in Title 40 CFR 123.26 and 123.27. These additional requirements correspond to the programmatic deficiencies that OECA identified in its first-round State Review Framework evaluations (data quality, identification of significant violations, the timeliness of enforcement actions, and penalties). For example, the CFR requires that States establish minimum civil penalty policies, such as the ability to assess at least a $5,000 penalty per day for each NPDES violation. The State Review Framework identified penalty calculation as a comprehensive weakness. Fifty-four percent of MOAs did not include any language about minimum civil penalty standards (i.e., received a score of “0” for this element). Only 1 of the 46 MOAs specified that the minimum penalty per day, per violation, would be $5,000 (a score of “2”).
MOAs most comprehensively addressed the MOA-specific regulations (CFR 123.24), containing these requirements 77 percent of the time. MOAs contained fewer requirements in the non-MOA-specific monitoring and inspections section (65 percent for CFR 123.26) and fewest in the enforcement section (36 percent for CFR 123.27). For example, 63 percent of the MOAs did not include language verifying that no other State enforcement agreement could override the MOA, as required by CFR 123.24(c). Eighty percent of MOAs did not note whether the State had the authority to enter any permitted facility (123.26(c)). Figure 2-2 shows how the percentage of missing regulations varied according to the CFR section under review.
EPA Could Establish a National Baseline for CWA Implementation with an MOA Template
EPA faces a significant challenge: to implement a nationally consistent enforcement program that offers equal protection from pollution to all Americans. By renegotiating outdated or inconsistent MOAs according to a national template, EPA can establish a current baseline for national consistency. A national template could also ease the MOA negotiation process. EPA should identify the key requirements that should be delineated in MOAs, including the other programmatic concerns disclosed through the CFR and issues uncovered during OECA’s State Review Framework, and incorporate them into a national template.
The officials of OECA, EPA regions, and State organizations we spoke with agree that MOAs are out of date and should be renegotiated, but OECA also pointed out that the process could face State resistance because it might require considerable resources. Enforcement managers and officials in two of the four regions we spoke with indicated that MOA renegotiation would be a low priority for them and would require them to remove resources from other enforcement activities. However, in our opinion, the management control benefit justifies the resource requirement. For example, as a result of renegotiating MOAs, Region 4 enforcement staff reported that they improved baseline management control over EPA-State enforcement relationships. In the face of a disagreement over responsibilities, regional staff said they show State program staff where an enhanced requirement is written in the updated MOA, and the State program staff then carry out the requirement.
Staff from each region we interviewed and other stakeholders agreed that an EPA Headquarters model MOA would be beneficial in determining MOA adequacy.
Region 4 developed a regional template for use in its MOA renegotiations. Regional enforcement officials reported that the template did not change much between the beginning and end of negotiations. A Region 10 enforcement program manager suggested that a model MOA that would serve as a foundational reference document could help to clarify the core oversight responsibilities. Region 10 staff stated that a model MOA could identify EPA and State expectations with respect to inspection, timely follow-up, data quality, transparency, and adequate response. In addition, the Environmental Council of the States said its member States would be interested in discussing a model MOA.
Conclusion
The current state of the MOAs means that EPA cannot assure it has effective management control over State programs that assures the public that CWA objectives are being achieved. EPA has not established a national template defining the key requirements necessary for current, robust MOAs. In addition, EPA has not developed a periodic review system to determine which MOAs remain adequate and which need to be revised to remain current with changing regulations. MOAs should establish the foundations for nationally consistent enforcement, defining the baseline roles and responsibilities for EPA and States. MOAs should also be the basis for assessing States’ ability and commitment to administer EPA’s NPDES program in accordance with the CWA. The CFR requires MOAs to outline the basic parameters of the EPA-State relationship and ensure CWA goals are being met through State-authorized programs. To ensure that MOAs fulfill their intended function, EPA must put in place a system that maintains and oversees consistent management controls over State programs. To ensure transparency and accountability, EPA should maintain a publicly available MOA repository, making these documents available to all States, EPA regions, and the public.
Recommendations
We recommend that the Deputy Administrator:
2-1 Develop a national MOA template including essential requirements derived from the updated CWA, CFR requirements, and State Review Framework findings.
2-2 Develop a systematic approach to identify which States have outdated or inconsistent MOAs; renegotiate and update those MOAs using the MOA template; and secure the active involvement and final, documented concurrence of Headquarters to ensure national consistency.
2-3 Establish a process for reviewing MOAs on a regular basis, taking into account legislative and management changes that affect the adequacy of the MOA.
2-4 Maintain a publicly available repository of MOAs.
Agency Response and OIG Comment
EPA’s Deputy Administrator provided the Agency response, coordinating comments from OECA and OW. The Deputy Administrator generally agreed with these recommendations and provided an outline of corrective actions that he would take in response to the recommendations.
The Deputy Administrator agreed with recommendations 2-1, 2-3, and 2-4.
In response to recommendation 2-2, the Deputy Administrator stated that renegotiating MOAs with States can be time consuming and may not be always be the best use of EPA resources. Deficiencies in State enforcement programs may be better addressed through other solutions and approaches. The Deputy Administrator proposed that OECA and OW integrate MOA assessment into a coordinated State program review process to identify and correct MOAs that present the greatest barriers to State program performance.
The OIG responds by noting that the draft report and the final report both make mention of the other mechanisms EPA uses to manage programs, even noting that there is a layered system of management controls (see page 2, for example). However, the report emphasizes that while EPA uses other mechanisms, the only required mechanism is the authorization MOA. The way in which EPA regions and States use other mechanisms varies, but the MOA is the only document that each State must have. For this reason, it is important that authorization MOAs be up to date and compliant with the CFR.
While acknowledging EPA’s need to maintain flexibility, the OIG believes that MOAs are a critical building block of State enforcement programs. Depending on how it is constructed, a systematic State program review process that contains a strategy for updating outdated or inconsistent MOAs could address our recommendation. We will list the status of recommendation 2-2 as “undecided,” and list the other recommendations as “open.” We look forward to a detailed strategy and timeline for implementation in the Agency’s 90-day response to this final report.
List of CFR Criteria for MOA Assessment1
CFR
Criterion
1
123.24(a)
MOA executed by the State Director and the Regional Administrator and approved by Administrator
2
MOA meets all requirements of paragraph (b)
3
MOA has no provisions restricting EPA’s statutory oversight responsibility
4
123.24(b)
Provisions for prompt transfer from EPA to the State of pending permit applications and any other relevant program operation information
5
MOA contain procedure for transfer of any existing permits for administration
6
MOA contain specific procedure for transfer of administration if a State lacks administration authority for permits issued by Federal government
7
MOA contain provisions specifying classes and categories of permit applications, draft permits, and proposed permits for Regional Administrator review
8
MOA contain provisions specifying the frequency and content of reports, documents and other information which the State is required to submit to EPA
9
MOA contain provisions allowing EPA to routinely review State records, reports, and files relevant to the administration and enforcement of the approved program
10
MOA contain provisions for coordination of compliance monitoring activities by the State and by EPA and EPA inspection of select facilities or activities within State
11
MOA contain procedures to assure coordination of enforcement activities
12
MOA contain provisions, when appropriate, for joint processing of permits by the State and EPA for facilities or activities which require permits from both EPA and the State under different programs per § 124.4
13
MOA contain provisions for modification of the MOA in accordance with this part
14
123.24(c)
MOA, the annual program grant and the State/EPA Agreement should be consistent. If the State/EPA Agreement indicates that a change is needed in the Memorandum of Agreement, the Memorandum of Agreement may be amended through the procedures set forth in this part.
15
State/EPA Agreement cannot override MOA
16
123.24(d)
MOA specify the extent to which EPA will waive its right to review, object to, or comment upon State-issued permits under section 402(d)(3), (e) or (f) of CWA
17
123.26(a)
State programs shall have procedures for receipt, evaluation, retention and investigation for possible enforcement of all notices and reports required of permittees and other regulated persons (and for investigation for possible enforcement of failure to submit these notices and reports).
18
123.26(b)
State programs shall have inspection and surveillance procedures to determine, independent of information supplied by regulated persons, compliance or noncompliance with applicable program requirements.
19
The State shall maintain a program which is capable of making comprehensive surveys of all facilities and activities subject to the State Director's authority to identify persons subject to regulation who have failed to comply with permit application or other program requirements. Any compilation, index or inventory of such facilities and activities shall be made available to the Regional Administrator upon request;
20
The State shall maintain a program for periodic inspections of the facilities and activities subject to regulation.
1 MOA assessment excludes the review of 123.24(b)(ii) and 123.27(e) as noted within the Scope and Methodology.
18
10-P-0224
CFR
Criterion
21
These inspections shall be conducted in a manner designed to: Determine compliance or noncompliance with issued permit conditions and other program requirements;
22
These inspections shall be conducted in a manner designed to: Verify the accuracy of information submitted by permittees and other regulated persons in reporting forms and other forms supplying monitoring data; and
23
These inspections shall be conducted in a manner designed to: Verify the adequacy of sampling, monitoring, and other methods used by permittees and other regulated persons to develop that information;
24
The State shall maintain a program for investigating information obtained regarding violations of applicable program and permit requirements; and
25
The State shall maintain procedures for receiving and ensuring proper consideration of information submitted by the Public about violations. Public effort in reporting violations shall be encouraged, and the State Director shall make available information on reporting procedures.
26
123.26(c)
The State Director and State officers engaged in compliance evaluation shall have authority to enter any site or premises subject to regulation or in which records relevant to program operation are kept in order to copy any records, inspect, monitor or otherwise investigate compliance with the State program including compliance with permit conditions and other program requirements. States whose law requires a search warrant before entry conform with this requirement.
27
123.26(d)
Investigatory inspections shall be conducted, samples shall be taken and other information shall be gathered in a manner (e.g., using proper “chain of custody” procedures) that will produce evidence admissible in an enforcement proceeding or in court.
28
123.26(e)
Maintaining a comprehensive inventory of all sources covered by NPDES permits and a schedule of reports required to be submitted by permittees to the State agency;
29
Initial screening (i.e., pre-enforcement evaluation) of all permit or grant-related compliance information to identify violations and to establish priorities for further substantive technical evaluation;
30
When warranted, conducting a substantive technical evaluation following the initial screening of all permit or grant-related compliance information to determine the appropriate agency response;
31
Maintaining a management information system which supports the compliance evaluation activities of this part; and
32
Inspecting the facilities of all major dischargers at least annually.
33
123.27(a)
To restrain immediately and effectively any person by order or by suit in State court from engaging in any unauthorized activity which is endangering or causing damage to public health or the environment;
34
Note: This paragraph (a)(1) requires that States have a mechanism (e.g., an administrative cease and desist order or the ability to seek a temporary restraining order) to stop any unauthorized activity endangering public health or the environment.
35
To sue in courts of competent jurisdiction to enjoin any threatened or continuing violation of any program requirement, including permit conditions, without the necessity of a prior revocation of the permit;
36
To assess or sue to recover in court civil penalties and to seek criminal remedies, including fines, as follows:
37
Civil penalties shall be recoverable for the violation of any NPDES permit condition; any NPDES filing requirement; any duty to allow or carry out inspection, entry or monitoring activities; or, any regulation or orders issued by the State Director. These penalties shall be assessable in at least the amount of $5,000 a day for each violation.
19
10-P-0224
CFR
Criterion
38
Criminal fines shall be recoverable against any person who willfully or negligently violates any applicable standards or limitations; any NPDES permit condition; or any NPDES filing requirement. These fines shall be assessable in at least the amount of $10,000 a day for each violation.
39
Criminal fines shall be recoverable against any person who knowingly makes any false statement, representation or certification in any NPDES form, in any notice or report required by an NPDES permit, or who knowingly renders inaccurate any monitoring device or method required to be maintained by the Director. These fines shall be recoverable in at least the amount of $5,000 for each instance of violation.
40
123.27(b)
The maximum civil penalty or criminal fine (as provided in paragraph (a)(3) of this section) shall be assessable for each instance of violation and, if the violation is continuous, shall be assessable up to the maximum amount for each day of violation.
41
The burden of proof and degree of knowledge or intent required under State law for establishing violations under paragraph (a)(3) of this section, shall be no greater than the burden of proof or degree of knowledge or intent EPA must provide when it brings an action under the appropriate Act;
42
123.27(c)
A civil penalty assessed, sought, or agreed upon by the State Director under paragraph (a)(3) of this section shall be appropriate to the violation.
43
Procedures for assessment by the State of the cost of investigations, inspections, or monitoring surveys which lead to the establishment of violations;
44
In addition to the requirements of this paragraph, the State may have other enforcement remedies. The following enforcement options, while not mandatory, are highly recommended:
45
123.27(d)
Any State administering a program shall provide for public participation in the State enforcement process by providing either:
46
Authority which allows intervention as of right in any civil or administrative action to obtain remedies specified in paragraphs (a)(1), (2) or (3) of this section by any citizen having an interest which is or may be adversely affected; or (2) Assurance that the State agency or enforcement authority will: (i) Investigate and provide written responses to all citizen complaints submitted pursuant to the procedures specified in §123.26(b)(4); (ii) Not oppose intervention by any citizen when permissive intervention may be authorized by statute, rule, or regulation; and (iii) Publish notice of and provide at least 30 days for public comment on any proposed settlement of a State enforcement action.
Catalyst for Improving the Environment
Method for smelting noble metal
Abstract
A method for refining noble metals has a silver treating process including a nitric acid leaching step of silver, a purification step of the leaching solution, an electrolytic decomposition step of silver, and a recycling step after the electrolytic decomposition, wherein in the purification step, lime is added in order to precipitate the metallic impurities, such as selenium, tellurium, bismuth, and copper, by neutralization of the leaching solution, and in the recycling step, sulfuric acid is added to the solution after electrolytic decomposition to regenerate nitric acid for recycling use by precipitation of calcium in the solution as gypsum . Preferably, the refining method has a gold recovery process, as well as the silver treating process, wherein the residue of the nitric leaching of the crude silver is dissolved by chlorination and gold is recovered from the leaching solution by solvent extraction or reductive precipitation. High purity gold and silver can be readily obtained, and the refining time for gold is significantly shorter than that in conventional methods.
| Inventors: | Okada; Satoshi (Omiya, JP ) , Mochida; Hiromi (Omiya, JP ) |
| Assignee: | Mitsubishi Materials Corporation (Tokyo, JP ) |
| Appl. No.: | 09/180,272 |
| Filed: | January 15, 1999 |
| PCT Filed: | June 04, 1998 |
| PCT No.: | PCT/JP98/02479 |
| 371 Date: | January 15, 1999 |
| 102(e) Date: | January 15, 1999 |
| PCT Pub. No.: | WO98/58089 |
| PCT Pub. Date: | December 23, 1998 |
AUGUST 31 - ADMINISTRATIVE REVIEW OF IRON MOUNTAIN MINE REMEDIATION BEGINS IN NINTH CIRCUIT COURT
"the proposed government cannot be deemed a national one; since its jurisdiction extends to certain enumerated objects only, and leaves to the several states a residuary and inviolable sovereignty over all other objects." Madison wrote this before adoption of the 10th Amendment, which restates, "the powers not delegated to the United States by the Constitution ... are reserved to the states respectively, or to the people." This restriction of powers was intended to be the single greatest bulwark of American liberty.
September 16, 2010 by senatus
Senator Dianne Feinstein (D-CA) — who “oversees the Appropriations panel's subcommittee overseeing Interior Department and Environmental Protection Agency spending — said debate on the appropriations bill in the committee is indefinitely postponed, in part over concerns about efforts to delay EPA climate regulations,” The Hill reports.
“It's off the calendar,” Feinstein told reporters Thursday. “A decision will have to be made about whether it goes back on or out.”
San Francisco is in line to receive another $86 million in federal funds to further the cleanup of the former Hunters Point Naval Shipyard, a Superfund site being converted into one of the largest development projects in the city's history.
The new funding is still subject to congressional approval, but Mayor Gavin Newsom and his administration are optimistic the money will come through once the federal budget is passed, possibly after the November election.
The latest tranche would bring to $800 million the total spent on cleanup at Hunters Point over the last 10 years. This year, $92 million in federal funds were allocated for the cleanup, with about $82 million the year before. Newsom largely credits House Speaker Nancy Pelosi and U.S. Sen. Dianne Feinstein with securing the funds for their home city.
San Francisco officials estimate the federal cleanup efforts, being done in sections, are about 70 percent complete. A handful of local groups say the cleanup plans are inadequate, although officials note the land won't be turned over for development until federal, state and local authorities sign off on its safety.
The 702-acre project on a base closed in 1974 calls for 10,500 residential units, along with 320 acres of parks and open space. The plan calls for retail and entertainment facilities, a green technology campus and possibly an NFL football stadium if the 49ers decide to remain in San Francisco.
Another $86 million on tap to clean up Hunters Point San Francisco is in line to receive another $86 million in federal funds to further the cleanup of the former Hunters Point Naval Shipyard, a Superfund site being converted into one of the largest...
newsom claims everything but oil spills and murders
Newsom also largely credits the sun for illuminating the day.
$800mm to clean up 702 acres, and the job's not yet done? Over a million dollars an acre and more is needed?? Nobody needs to ask anymore why our government and all its agencies are broke.
Considering the Hunter Point Shipyard's history, it's kind of surprising it can be cleaned up at any price. Remember this expensive lesson when crying about environmental regulations driving out business - it's pay now to keep the industrial sites clean in the first place - or pay massive amounts in the future (for further instruction see "Iron Mountain").
what's interesting about this article is what it doesnt say--what the cleanup is for and why its necessary. the HP naval shipyard area has the #1 and #2 EPA-designated Superfund sites in the country. the level of radiation is worse than Chernobyl. radioactive materials brought back from the Bikini Atoll a-bomb tests have been combined with other toxic waste and seeped into the ground, contaminating the soil and making it doubtful that it can ever be truly "cleaned up". more likely, contained and/or moved somewhere else. nevertheless, i wouldnt want to live somewhere with potential radiation poisoning issues, no matter how nice the view.
Itsmymoneytoo might look into why this cleanup is so expensive. The navy spent decades polluting Hunter's Point with just about every toxic industrial product known from asbestos to radioactive junk. One little peculiarity our military enjoys to this day is a sweeping exemption from environmental regulations. I.e. they aren't held responsible no matter how gross their messes may be. Sure, our military has essential work to do, but it could be done with far less collateral damage. Back when much of the mess at Hunter's Point was made, we really didn't know much better. Now we've learned.
The government took tax payer dollars and ruined this property while it was occupied and used by the government and now will take tax payer money to clean it up and Newsom claims all this a victory?????
and just wait until we find out how much of this money has been and contin ues to be wasted. OMG our government spending is so completly out of control while our elected officials continue to pat themselves on the back for spending OUR money. Over a million dollars and acre? OMG! Something smells with this 'black hole' project. Who is overseeing how our money is being spent here? Anybody?
Keep in mind the true purpose of this "development" project which is the largest in SF history......keeping the 49ers in SF. This is how this whole project originated. First it started with remodelling Candlestick, then it was proposed by Eddie Debartolo ( when he was still owner of the 49ers ) and Willie Brown, to build a new stadium and redevelop the entire area. The ballot measure passed but Eddie soon had to give up the team to his sister.....seems the Yorks are deadset on keeping the Niners in Santa Clara, but you never know....
Institutional controls are non-engineered instruments, such as administrative and legal controls, that help minimize the potential for human exposure to contamination and/or protect the integrity of the remedy. Although it is EPA's expectation that treatment or engineering controls will be used to address principal threat wastes and that groundwater will be returned to its beneficial use whenever practicable, ICs play an important role in site remedies because they reduce exposure to contamination by limiting land or resource use and guide human behavior at a site. For instance, zoning restrictions prevent site land uses, like residential uses, that are not consistent with the level of cleanup.
Often, ICs are a critical component of the cleanup process and are used by the site manager to ensure both the short- and long-term protection of human health and the environment. For this reason it is important to understand what constitutes an IC. Specifically for EPA, ICs:
. are non-engineered instruments such as administrative and/or legal controls that minimize the potential for human exposure to contamination by limiting land or resource use;
. are generally to be used in conjunction with, rather than in lieu of, engineering measures such as waste treatment or containment;
. can be used during all stages of the cleanup process to accomplish various cleanup-related objectives; and,
. should be “layered” (i.e., use multiple ICs) or implemented in a series to provide overlapping assurances of protection from contamination.
ICs are vital elements of response alternatives because they simultaneously influence and supplement the physical component of the remedy to be implemented. On the one hand, the right mix of ICs can help ensure the protectiveness of the remedy; on the other, limitations in ICs may lead to reevaluation and adjustment of the remedy components, including the proposed ICs. At some sites, remedy contingencies may protect against uncertainties in the ability of the ICs to provide the required long-term protectiveness. These points illustrate how important it is for site managers to evaluate ICs as thoroughly as the other remedy components in the Feasibility Study (FS) or Corrective Measures Study (CMS), when looking for the best ICs for addressing site-specific circumstances. Adding ICs on as an afterthought without carefully thinking about their objectives, how the ICs fit into the overall remedy, and whether the ICs can be realistically implemented in a reliable and enforceable manner, could jeopardize the effectiveness of the entire remedy.
Often ICs are more effective if they are layered or implemented in series. Layering means using different types of ICs at the same time to enhance the protectiveness of the remedy. For example, to restrict land use, the site manager may issue an enforcement tool [e.g., Unilateral Administrative Order (UAO)]; obtain an easement; initiate discussions with local governments about a potential zoning change; and enhance future awareness of the restrictions by recording them in a deed notice and in a state registry of contaminated sites. Also, the effectiveness of a remedy may be enhanced when ICs are used in conjunction with physical barriers, such as fences, to limit access to contaminated areas.
ICs may also be applied in series to ensure both the short- and long-term effectiveness of the remedy. For example, the site manager may use an enforcement tool to require the land owner to obtain an easement from an adjacent property owner in order to conduct ground water sampling or implement a portion of the active remedy. This easement may not be needed for the long-term effectiveness of the remedy and is terminated when the construction is complete. At another site, the site manager may use an Administrative Order on Consent (AOC) or permit condition to prohibit the land owner from developing the site during the investigation. Later, the site manager may add a provision to the Consent Decree (CD) or the permit requiring the land owner to notify EPA if the property is to be sold and to work with the local government to implement zoning restrictions on the property.
CERCLA as amended by SARA, the NCP and RCRA support the use of ICs in remediation of a site:
CERCLA—Section 121(d)(2)(B)(ii)(III) refers to the use of enforceable measures (e.g., ICs) as part of the remedial alternative at sites. EPA can enforce the implementation of ICs, but not necessarily their long term maintenance. For example, the local government with zoning jurisdiction may agree to change the zoning of the site to prohibit residential land uses as part of the remedy, but the local government retains the authority to change the zoning designation in the future. EPA is authorized, under CERCLA section 104(j), to acquire (by purchase, lease or otherwise) real property interests, such as easements, needed to conduct a remedial action provided that the state in which the interest is to be acquired is willing to accept transfer of the interest following the remedial action. Transfers of contaminated Federal property are subject to special deed requirements under CERCLA sections 120(h)(3)(A)(iii) and 120(h)(3)(C)(ii)(I) and (II).
NCP—the NCP provides EPA’s expectations for developing appropriate remedial alternatives, including ICs under CERCLA. In particular, it states that EPA expects to use treatment to address the principal threats posed by sites; engineering controls for wastes that pose relatively low risk or where treatment is impracticable; and a combination of the two to protect human health and the environment [40 CFR 300.430(a)(1)(iii)(A), (B), and (C)]. In appropriate situations, a combination of treatment, containment, and ICs may be necessary. The NCP also emphasizes the use of ICs to supplement engineering controls during all phases of cleanup and as a component of the completed remedy, but cautions against their use as the sole remedy unless active response measures are determined to be impracticable [40 CFR 300.430(a)(1)(iii)(D)]. In the case where ICs are the entire remedy, the response to comments section of the preamble to the NCP states that special precautions must be made to ensure the controls are reliable (55 Federal Register, March 8, 1990, page 8706). Recognizing that EPA may not have the authority to implement such controls, the NCP requires that (for fund financed sites) the state assure that the ICs implemented as part of the remedial action are in place, reliable, and will remain in place after the initiation of operation and maintenance [40 CFR 300.510(c)(1)]. Lastly, for Superfund financed and private sites, the NCP also requires the state to hold any interest in property that is acquired (once the site goes into O&M) to ensure the reliability of ICs [40 CFR 300.510(f)].
RCRA—RCRA requirements are imposed through legal mechanisms different from those used under CERCLA. In RCRA, authorized states are the primary decision makers, this results in a wide variety of state-specific mechanisms being available. This fact sheet does not attempt to list all of the state and local IC mechanisms, but to identify key principles for the use of ICs. If the IC is being imposed through a RCRA permit, steps should be taken to ensure that long-term enforcement is not lost through property transfer or permit expiration. Cleanups under RCRA are conducted in connection with the closure of regulated units and facility-wide corrective action either under a permit [RCRA sections 3004(u) and (v)], interim status order [RCRA section 3008(h)] or imminent hazard order [RCRA section 7003] or other authorities. It should also be noted that landfill closure requirements under 40 CFR 264.119 require deed notices that the land has been used to manage hazardous waste, although the notice itself does not restrict future use. EPA expects to use a combination of methods (e.g., treatment, engineering, and institutional controls) under RCRA, as appropriate, to achieve protection of human health and the environment. EPA also expects to use ICs, such as water and land use restrictions, primarily to supplement engineering controls, as appropriate, for short- and long-term management to prevent or limit exposure to hazardous wastes and constituents. ICs are not generally expected to be the sole remedial action.
Proprietary Controls—These controls, such as easements and covenants, have their basis in real property law and are unique in that they generally create legal property interests. In other words, proprietary controls involve legal instruments placed in the chain of title of the site or property. The instrument may include the conveyance of a property interest from the owner (grantor) to a second party (grantee) for the purpose of restricting land or resource use. An example of this type of control is an easement that provides access rights to a property so the Potentially Responsible Party (PRP), facility owner/operator, or regulatory agency may inspect and monitor a groundwater pump-and-treat system or cover system. The benefit of these types of controls is that they can be binding on subsequent purchasers of the property (successors in title) and transferable, which may make them more reliable in the long-term than other types of ICs.
However, proprietary controls also have their drawbacks. Property law can be complicated because a property owner has many individual rights with respect to his or her property. To illustrate this point, property rights can be thought of as a bundle of sticks, with each stick representing a single right (e.g., the right to collect rents). The terminology, enforceability, and effect of each of these rights is largely dependent upon real property common law and the state where the site is located. A property owner can convey certain rights to other entities (either voluntarily or involuntarily through condemnation) and keep other rights. For example, if it is determined that a long-term easement is required to ensure remedy protectiveness, this “right” would need to be transferred by the property owner to another entity. For the easement to bind subsequent purchasers, some states require that the entity be an adjacent property owner. This may complicate long-term monitoring and enforcement since the party receiving the right (the grantee) is often not an adjacent property owner. To eliminate this problem, a proprietary control may be established “in gross.” This means that the holder of the control (the grantee) does not need to be the owner of the adjacent property. However, it should be noted that easements in gross may not be enforceable under the laws of some states. State property laws governing easements should therefore be researched before this type of IC is selected in order to determine its enforceability in that jurisdiction.
A distinction at Federal sites being transferred to the private sector is that CERCLA sections 120(h)(3)(A)(iii) and 120(h)(3)(c)(ii) and (iii) require that property interests be retained by the Federal government. At active Federal sites, proprietary controls may not be an option because a deed does not exist or the landholding Federal agency lacks the authority to encumber the property. However, the landholding Agency may be willing to enter a Memorandum of Understanding (MOU) with EPA and/or state regulators providing for specific IC implementation plans, periodic inspections and other activities which it will undertake (in lieu of deed restrictions) to assure that ICs for the active site will remain effective.
Enforcement and Permit Tools with IC Components—Under sections 104 and 106(a) of CERCLA, UAOs and AOCs can be issued or negotiated to compel the land owner (usually a PRP) to limit certain site activities at both Federal and private sites; CDS can also be negotiated at private sites under 122(d). Similarly, EPA can enforce permits, conditions and/or issue orders under RCRA sections 3004(a), 3004(u) and (v), 3008(h), or 7003. These tools are frequently used by site managers, but may also have significant shortcomings that should be thoroughly evaluated. For example, most enforcement agreements are only binding on the signatories, and the property restrictions are not transferred through a property transaction. For example, if a PRP under CERCLA signs a CD or receives a UAO and then sells his or her property, many types of ICs would not be enforceable against the next owner. This could jeopardize the protectiveness of the remedy. One possible solution to this problem is to ensure that the enforcement tool contains provisions requiring EPA or state notification and/or approval prior to a property transfer. In this instance, EPA could negotiate an agreement with the new owner. Another solution is to require signatories of an enforcement document to implement additional long-term institutional controls such as information devices or proprietary controls (i.e., layering).
Informational Devices—Informational tools provide information or notification that residual or capped contamination may remain on site. Common examples include state registries of contaminated properties, deed notices, and advisories. Due to the nature of some informational devices (e.g., deed or hazard notices) and their potential non-enforceability, it is important to carefully consider the objective of this category of ICs. Informational devices are most likely to be used as a secondary “layer” to help ensure the overall reliability of other ICs.
ICs at Federal Facilities
Because of Federal ownership, there are significant differences in the way ICs are applied at Federal facilities. Some proprietary or governmental controls cannot be applied on active Federal facilities. However, for properties being transferred as part of a base closure, the Department of Defense does have the authority to restrict property by retaining a property interest (i.e., an easement intended to assure the protectiveness of the remedy). For active bases, ICs are commonly addressed through remedy selection documents, base master plans, and separate MOUs. More detailed information on ICs and Federal facilities is contained in “Institutional Controls: A Reference Manual (Workgroup Draft - March 1998)” and in the FFRRO IC guidance ("Institutional Controls and Transfer of Real Property under CERCLA Section 120(h)(3)(A), (B), or (C)," January, 2000).
Legal Mechanisms for Imposing ICs Under CERCLA and RCRA
CERCLA and RCRA employ the same types of ICs to reduce exposure to residual contamination. However, as explained below, EPA’s legal authority to establish, monitor and enforce ICs varies significantly between the two programs. As a result, officials involved in cleanups need to appreciate the range of options available under each program before determining whether, and to what extent, ICs should be incorporated into a remedial decision.
At CERCLA sites, EPA often imposes ICs via enforcement tools (e.g., UAOs, AOCs, and CDs). Since these enforcement tools only bind the parties named in the enforcement document, it may be necessary to require the parties to implement ICs that “run with the land” (i.e., applied to the property itself) in order to bind subsequent land owners. For Fund-lead CERCLA sites, the lead agency has the responsibility for ensuring ICs are implemented. Legal mechanisms such as UAOs, AOCs and CDS should also require reporting to EPA and/or the state of any sale of the property.
Under RCRA, ICs are typically imposed through permit conditions or by orders issued under section 3008(h). In certain circumstances cleanup may also be required under the imminent hazard order authority of section 7003. In the case where an IC is meant to continue beyond the expiration of a permit, an order may be required to ensure the IC remains in effect for the long term RCRA permit writers should incorporate ICs as specific permit conditions, where appropriate. By doing so, such conditions would be enforceable through the permit. At the same time, permit writers should consider whether additional ICs are available (e.g., governmental and/or proprietary controls) to ensure that subsequent property owners will be aware of, and bound by, the same types of restrictions. Similar factors should be considered when preparing RCRA corrective action orders to ensure that both the current facility owner/operator and any subsequent property owners are subject to effective and enforceable ICs that will minimize exposure to any residual contamination.
One significant difference between RCRA and CERCLA is that RCRA generally does not authorize EPA to acquire any interests in property. Therefore, many proprietary controls (such as easements) will require the involvement of third parties (e.g., states or local governments) under RCRA.
ICs and Future Land Use
Land use and ICs are usually linked. As a site moves through the Superfund Remedial Investigation/Feasibility Study (RI/FS) or RCRA Facility Investigation/Corrective Measures Study (RFI/CMS), site managers should develop assumptions about reasonably anticipated future land uses and consider whether ICs will be needed to maintain these uses over time. EPA’s land use guidance (Land Use in CERCLA Remedy Selection Process, OSWER Directive No. 9355.7-04, May 25, 1995) states that the site manager should discuss reasonably anticipated future uses of the site with local land use planning authorities, local officials, and the public, as appropriate, as early as possible during the scoping phase of the RI/FS or RFI/CMS. Where there is a possibility that the land will not be cleaned up to a level that supports unlimited use and unrestricted exposure, the site manager should also discuss potential ICs that may be appropriate, including legal implementation issues, jurisdictional questions, the impact of layering ICs and reliability and enforceability concerns. It is also important for the site manager to recognize that, in addition to land uses, ICs can be used to affect specific activities at sites (e.g., fishing prohibitions).
Screening ICs
The need for ICs can be driven by both the need to guard against potential exposure and to protect a remedy. If any remedial options being evaluated in the FS or CMS leave waste in place that would not result in unrestricted use and unlimited exposure, ICs should be considered to ensure that unacceptable exposure from residual contamination does not occur. However, ICs may not be necessary if the waste that is left at the site allows for unrestricted use and unlimited exposure. Remedy options that typically leave residual wastes on site and necessitate ICs include capping waste in place, construction of containment facilities, natural attenuation and long-term pumping-and-treatment of groundwater.
ICs should be evaluated in the same level of detail as other remedy components. ICs are considered response actions under CERCLA and RCRA. ICs must meet all statutory requirements, and are subject to the nine evaluation criteria outlined in the NCP (40 CFR 300.430 (e)(9)(i)) for CERCLA cleanups. The balancing criteria recommended for corrective actions should generally be used in evaluating ICs under RCRA. However, before applying these criteria, the site manager should first make several determinations: *&%#@^$_jf FASCISTS AND COMMUNISTS!
Determining the Role of Local Governments
CERCLA, RCRA, and the NCP do not specify a role for local governments in implementing the selected remedy. However, a local government is often the only entity that has the legal authority to implement, monitor and enforce certain types of ICs (e.g., zoning changes). While EPA and the states take the lead on CERCLA and RCRA response activities, local governments have an important role to play in at least three areas: (1) determining future land use; (2) helping engage the public and assisting in public involvement activities; and (3) implementation and long-term monitoring and enforcement of ICs. Therefore, it is critical that the site manager and his or her state counterpart involve the appropriate local government agency in discussions on the types of controls that are being considered. The capability and willingness of the local government to implement and ensure the short- or long-term effectiveness of the proposed ICs should be considered during the RI/FS or RFI/CMS. In certain cases, cooperative agreements may be considered to assist local governments in the implementation, monitoring and enforcement of required ICs.
ICs in CERCLA Removal Actions
ICs will rarely be a component of true emergencies where a time critical action serves as the only response at a site. It is more likely that a site manager will choose ICs as a component of a non-time critical removal action or during a follow-up remedial action. A post-removal site control agreement must be completed before commencing a fund-financed removal action where ICs are included in post-removal site control (OSWER Directive No. 9360.22-02). As in the remedial process, begin considering ICs when conducting an analysis of land use assumptions during the removal decision-making process. Where a final, site-wide, non-time critical removal remedy decision will be made, ICs should be thoroughly and rigorously evaluated with all other response actions in the Engineering Evaluation/Cost Analysis (EE/CA). In short, because ICs are considered to be actions, apply the full criteria required by
the NCP for EE/CA evaluations. It is anticipated that ICs would not be chosen as the sole action for a removal.
It is fundamental that a remedy under RCRA or CERCLA that includes ICs meet the following threshold criteria:
• protect human health and the environment; and • for CERCLA sites, comply with Applicable or Relevant and Appropriate Requirements (ARARs).
The site manager for RCRA facilities should also consider whether remedies that include ICs:
• attain media cleanup standards or comply with applicable standards for waste management; and
• control the source(s) of releases so as to reduce or eliminate, to the extent practicable, further releases of hazardous waste that might cause threats to human health and the environment.
Balancing Criteria
The site manager evaluates the individual, layered or series of ICs to determine their respective strengths and weaknesses. ICs are also evaluated in combination with engineered controls to identify the key tradeoffs that should be balanced for the site. Following are balancing criteria required by CERCLA and the NCP and recommended by the RCRA program in guidance.
Long-term effectiveness and permanence (CERCLA) or reliability (RCRA)—Under both CERCLA and RCRA, this factor assesses the permanence/reliability and effectiveness of ICs that may be used to manage treatment residuals or untreated wastes that remain at the site over time. When evaluating whether an IC will be effective over the long-term, the site manager should consider factors such as: whether the property is a government-owned site or a privately-owned site that is likely to change hands; the applicability of ICs to multiple property owners; the size of the area to be managed; the number of parcels; the contaminated media to be addressed; the persistence of the contamination; whether site contamination is well-defined; and whether local governments or other governing bodies are willing and able to monitor and enforce long-term ICs. The site manager should also consider the contaminated media to be addressed by the ICs. Different ICs may be required for different media.
Where ICs must be effective for a long period, either proprietary or governmental controls should be considered because they generally run with the land and are enforceable. However, both proprietary and governmental controls have weaknesses in terms of long-term reliability. For example, with proprietary controls, common law doctrines may restrict enforcement by parties who do not own adjoining land. This can render proprietary controls ineffective if EPA or another party capable of enforcing the control is not the owner of the adjacent property. To eliminate this problem, proprietary controls may be established "in gross," signifying that the holder of the control does not need to be the owner of the adjacent property. However, some courts do not recognize in gross proprietary controls.
At some sites, governmental controls may be preferable to proprietary controls. For example, the site manager might work with a local government to pass an ordinance to restrict construction or invasive digging that might disturb or cause exposure to covered residual lead contamination in a large residential area. The implementation of government controls might be considered a beneficial addition to information tools that may be forgotten over the long term or an enforcement action that would be binding only on certain parties.
Proprietary controls would likely be deemed impractical at such a site due to the complex and uncertain task of obtaining easements from multiple property owners.
Like proprietary controls, the use of governmental controls may not be effective over the long term. Of primary concern are the political and fiscal constraints that may affect the ability of a state or local government to enforce the controls. Similarly, governmental controls may be problematic when the local or state government is or may become the site owner or operator because of the appearance of a conflict of interest. Regardless of the control selected, its viability over the long term needs to be closely evaluated.
Reduction of toxicity, mobility, or volume through treatment—
This CERCLA and RCRA criterion does not apply since ICs are not treatment measures.
Short-term Effectiveness—Short-term effectiveness of ICs at CERCLA and RCRA sites should be evaluated with respect to potential effects on human health and the environment during construction and implementation of the remedy. In order to satisfy this criterion, the remedy might entail the use of an IC through an enforcement order to compel the PRP to restrict certain uses of the groundwater at or down gradient from the site during remediation.
After remediation is complete, other ICs might be implemented if residual contamination remains on site (i.e., implementing ICs in series).
Implementability—This CERCLA and RCRA criterion evaluates the administrative feasibility of an action and/or the activities that need to be coordinated with other offices and agencies. Implementation factors that generally should be considered for ICs include whether the entity responsible for implementation possesses the jurisdiction, authority, willingness and capability to establish, monitor and enforce
ICs. A proper analysis of implementability can be complex, considering such diverse factors as the extent to which land being restricted is owned by liable parties and the willingness and capability
of the local government or other authority responsible for establishing controls for land or resource use.
Cost—This CERCLA and RCRA criterion includes estimated capital and O&M costs. In CERCLA, estimated costs for implementing, monitoring, and enforcing ICs should be developed. For example, cost estimates for ICs might include legal fees associated with obtaining easements restricting land use, the costs of purchasing property rights (e.g.., groundwater rights, easements), or the wages of the state or local government personnel that will regularly monitor the IC to ensure that it has not been violated. It is interesting to note that once the total life-cycle costs of implementing, monitoring and enforcing an IC – which may exceed 30 years – are fully calculated, it may actually be less costly in the long term to implement a remedy that requires treatment of the waste. For more information on estimating response costs, see “A Guide to Developing and Documenting Cost Estimates During the Feasibility Study,” EPA 540-R-00-002, OSWER 9355.0-
075. In RCRA, costs historically have played a less prominent role in remediation selection. Typically cost estimates are expected to be developed at the discretion of the owner/operator, although implementors should take into account sites where ICs are inappropriately costly.
Modifying Criteria
Typically the site manager presents the proposed remedy, including ICs to the state, local government, and community for comment prior to implementation. The issues and concerns of these stakeholders may result in modifications to the remedy and are addressed by the site manager in the remedy decision document. Following is a discussion of these modifying criteria (note: these criteria are only recommended in RCRA guidance).
State Acceptance—The site manager should make the appropriate state authorities aware of the basis and scope of the ICs to be implemented under CERCLA or RCRA, and what role, if any, the state is expected to play to make ICs an effective part of the remedy. The state can formally express its concerns about the use of ICs, in general, and its role, in particular, or indicate its willingness to take on the responsibility for implementing and enforcing the proposed ICs. If the state’s position is uncertain at the time the remedy is selected (e.g., for CERCLA sites, when the ROD is signed or, for RCRA facilities, when the permit/order is issued or modified), it may be necessary to outline contingent remedial approaches in the decision documents. Specifically, remedies that require long-term ICs to remain protective may require alternative actions (e.g., additional soil removal) if the ICs are later determined to be unenforceable or cannot meet the
remedial objectives. Alternatively, at a RCRA site, it may be necessary to leave a facility under a permit or other mechanism enforceable by the regulating agency. If the state’s willingness or ability to implement or enforce an IC changes after remedy selection, the protectiveness of the remedy should generally be re-evaluated and, when necessary, remedial decisions revised. Under CERCLA, this may require an Explanation of Significant Differences (ESD), or even a ROD amendment. Under RCRA, a permit modification or change to a corrective action order may
be necessary. It is important to note that under no circumstances can a Fund-financed CERCLA remedial action be initiated without receiving state assurances on ICs and property transfer.
Local Government and Community Acceptance—Involving the community and local government early during the remedy decision process will enable the site manager to more fully evaluate IC options. Discussions with the local government and community give the site manager the opportunity to:
• gather local government and community input on the proposed ICs;
• identify whether a particular stakeholder group may be harmed as a result of a proposed IC (for example, will a ban on fishing cause an economic hardship in the community);
• receive comment on the impacts of the potential ICs on religious or cultural customs and beliefs (e.g., preventing access to property which grows the plants that are used in a tribal ceremony); and
• determine if the community has special needs in regards to the IC (for example, will it be necessary to publish informational devices in multiple languages).
In addition, the local government and community’s response to certain types of ICs and the willingness and capability of the local government to monitor ICs will help the site manager determine whether the ICs will be effective overall. This is especially important if nearby property owners will need to agree to implement proprietary controls or if other governmental ICs (e.g., zoning changes) will have an impact on the community. Early involvement will also enable the community to work with the local government to develop innovative approaches to using ICs, especially in light of any future land use plans.
As with other aspects of the proposed remedy, the community should have the opportunity to comment on the proposed IC component of the remedy during the public comment period. It may be necessary to educate the community about ICs so that its members understand how the different ICs may impact their property and activities. Under CERCLA, it may also be possible, as long as all appropriate requirements are met, to provide a Technical Assistance Grant to the community so they can hire a technical expert to assist them in evaluating ICs and the overall remedy.
In some cases, it may be appropriate not to identify the exact IC required at the time of the remedy decision. In these instances the critical evaluation of the available ICs should still be conducted and the specific objective(s) of the ICs should be clearly stated in the ROD or other decision document. Examples of when this flexibility may be appropriate are contingent remedies based on pilot studies or if a remedy would not be implemented for several years and the state is developing enabling language for Conservation Easements authority.
Conclusion
The ICs outlined in this fact sheet can be important elements of environmental cleanups. ICs play an important role in limiting risk and are often needed to ensure that engineered remedies are not affected by future site activities. When selecting ICs, the site manager needs to evaluate the situation at the site, define the needs that ICs are intended to address, identify the kinds of legal and other tools available to meet these needs, and ensure the ICs are implemented effectively. All of this requires up-front planning and working closely with the Regional office attorneys, the state, community, and PRPs or facility owner/operators. Key concepts to keep in mind when implementing ICs are provided in the text box below.
If you have questions regarding the material covered in this fact sheet, consult the draft document, “Institutional Controls: A Reference Manual” or contact your Regional Coordinator in the OERR Technical Regional Response Center. For information on model language for enforcement or legal documents used to implement ICs, consult your Regional Counsel, OSRE or the Office of General Counsel.
File Format: PDF/Adobe Acrobat - Quick View
Mar 7, 2006 ... Listing Iron Mountain Mine on the National Priorities List was key to the success of this project, as listing gave ...
www.epa.gov/aml/tech/imm.pdf - Similar
YouTube - Iron Mountain Mine - Jobs and Clean-up from Recovery Act ... |
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| Accessible version: http://www.epa.gov/region09/eparecovery/video/ironmtn/ Recovery Act (ARRA) funding has supported acceleration ... www.youtube.com/watch?v=ALjRMur2vkA - more videos » | |
Aug 21, 2010 ... Jane Vorpagel burned through her camera's battery taking snapshots of the green and black crystals that mark the heart of Iron Mountain Mine ...
www.redding.com/news/2010/aug/21/decades-of-decay/ - Cached
by IM Mine
May 4, 2007 ... Iron Mountain Mine near Redding, California operated from the 1870's to the 1960's (Verosub, 2007). The mineral deposits found and mined ...
ice.ucdavis.edu/education/esp179/?q=node/164 - Cached - Similar
Aug 29, 2010 ... Chronicle reporter Peter Fimrite says the abandoned copper mine is often called one of the most polluted places on earth with some of the ...
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Jul 2, 2010 ... Mine Shaft Plugging Assessment - Geochemical characterization of Iron Mountain and geochemical modeling studies predicted that if the mine ...
toxics.usgs.gov/topics/rem_act/ iron _ mountain .html - Cached - Similar
Jan 11, 2008 ... 06/08/1998, Richard Sugarek / Environmental Protection Agency - Region 9, T W Arman / Iron Mountain Mines , Inc, ROC: Site mine maps for view ...
yosemite.epa.gov/.../3a76535e12b35ac288257007006085e2!OpenDocument - Cached
Aug 31, 2010 ... The Iron Mountain Mine , outside of Redding, is a hellish pit where acid water sloshes against your boots, greenish bacterial slime gurgles ...
aquafornia.com/archives/31308 - Cached
Mar 10, 2000 ... Edwards says the microbe found in such abundance at the Iron Mountain Mine is probably more common in nature that is currently recognized, ...
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Nov 22, 2009 ... While a dredging project to remove Iron Mountain Mine tailings from Keswick Lake is ahead of schedule, legal documents continue to pile up ...
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Sep 24, 2009 ... Location: Iron Mountain Mine , Shasta County, California. ... Overview: From the 1860s through 1963, Iron Mountain Mine (IMM) in Shasta County ...
www.darrp.noaa.gov/southwest/ iron /index.html - Cached - Similar
by DK Nordstrom - 2000 - Cited by 134 - Related articles
In this report we present new data on acid mine waters from the undergroundworkings at Iron Mountain that have pH values as low as -3.6 with total ...
pubs.acs.org/doi/abs/10.1021/es990646v - Similar
Iron Mountain Mine was mined for iron, silver, gold, copper, zinc and pyrite from the 1860s through 1963. As a result of the mining activities, annual rains ...
www.epa.gov/superfund/eparecovery/ iron _ mountain .html - Cached - Similar
Iron Mountain During the 1890s when Mountain Copper Company owned Iron Mountain Mine , a company town named Iron Mountain was located on the mountain. ...
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Sep 1, 2010 ... Inside a toxic hellhole, Iron Mountain Mine - one of the most polluted places on Earth. www.sfgate.com - Derekmarkham (Derek Markham) ...
twitoaster.com/.../inside-a-toxic-hellhole- iron - mountain - mine -one-of-the- most-polluted-places-on-earth/ - Cached
INCIDENT SUMMARY: Acid mine drainage (AMD) from Iron Mountain Mine runs out of the mine site and into several creeks, reservoirs, and the Sacramento River, ...
www.dfg.ca.gov/ospr/NRDA/ iron - mountain .aspx - Cached
Iron Mountain Mine Superfund Site Settlement; This is a Stauffer Management - Business Editors WILMINGTON, Del.--(BUSINESS WIRE)--Oct. 20, ...
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Aug 25, 2004 ... It is possible, according to Edwards, that the microbe found in such abundance at the Iron Mountain Mine near Redding, Calif., is ubiquitous ...
www.biotech.wisc.edu/outreach/biotechnews/microbeacidlove.html - Cached
Feb 13, 2006 ... Every time UC Berkeley professor Jillian Banfield descends into the abandoned Richmond Mine in Iron Mountain , California, she's fascinated ...
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by KJ Edwards - 2000 - Cited by 65 - Related articles
Jump to Biodiversity at Iron Mountain : seasonal and spatial relationships ... ?: At Iron Mountain , as at other sites ... within the Richmond mine . ...
EPA Demo
Iron Mountain Mine Site, CA
1990 to 1991
S. Jackson Hubbard
(513) 569-7507
Separation: Precipitation, microfiltration & sludge dewatering Sludge & leachable soil Heavy metals, non-volatile organics & solvents, oil, grease, pesticides, bacteria, solids Up to 5% solids, 30 lb/hour of solids, 10 gpm of wastewater Heavy metal precipitation, filtration, concentrated stream dewatering Filter cakes 40-60% solids, water recycled EXXFLOW and EXXPRESS fabric microfilter and filter press.
by C ROBINSON - 2003
Mar 28, 2003 ... The inactive Cu-Zn mines at Iron Mountain , California, are well known for producing extremely acidic drainage and a variety of Fe-sulfate ...
gsa.confex.com/gsa/2003NE/finalprogram/abstract_51375.htm - Cached
[PDF]
File Format: PDF/Adobe Acrobat - Quick View
Introduction: The Iron Mountain mining district, in the Klamath Mountains of northern California, is host to some of the most extremely acid mine waters ...
www.lpi.usra.edu/meetings/sulfates2006/pdf/7064.pdf
by T Heise - 2010
Mar 29, 2010 ... 17 Acid Mine Drainage in Tasmania, Australia . . . . . . . . . . . . . . . . . . . . 101. 18 Iron Mountain Mine , U.S.A. . ...
www.grin.com/.../characterization-of-waterbodies-affected-by-acid- mine - drainage
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Acid mine drainage biogeochemistry at Iron Mountain , California. Gregory K Druschel* email , Brett J Baker* email , Thomas M Gihring email ...
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California Shasta County, located in northern California, bears many unpleasant reminders of the old gold rush days. The Iron Mountain mine, one of the most destructive Superfund sites, deposits 400 pounds of copper and 1,400 pounds of zinc into Shasta County reservoirs every day -- one-fourth of the copper and zinc discharged into surface waters for the entire United States. The Balaklala mine discharges acid and heavy metals into a tributary of the Shasta Lake, one of California's most important recreational lakes. In Southern California, upcoming passage of the Desert Protection Act will bring hundreds of abandoned -- and potentially life-endangering -- mines into the National Park system.
Feb 3, 2004 ... Acid mine drainage in Spring Creek downstream from the Richmond Mine, part of the Iron Mountain Mine Superfund Site nine miles northwest of ...
www.sciencedaily.com/releases/2004/02/040202064701.htm - Cached
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computations for acid mine waters, Iron Mountain , California. ... quality and discharge data for acidic mine waters at Iron Mountain , Shasta County, ...
by C Hao
Jul 16, 2010 ... Druschel GK, Baker BJ, Gihring T, Banfield JF (2004) Acid mine drainage biogeochemistry at Iron Mountain , California. Geo- ...
www.springerlink.com/index/P724G2360247K403.pdf
Dec 22, 2006 ... The organisms in the mine drainage, which live in a pink slick on ... the Richmond Mine at Iron Mountain , Calif. The mine is one of the ...
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[PDF]
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at Mammoth Mine on Iron Mountain. 'Note the '. ' !*'- player“s uniforms, the bleachers, ..... Gladstone Mine First Aid Dispe. Iron Mountain Mine Hospital ...
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[PDF]
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May 5, 2010 ... hazardous waste on land where Defendant Iron Mountain Mines is located. Iron Mountain Mines is owned and operated by Defendant. T.W. Arman. ...
www.acoel.org/.../USA%20v%20 IRON %20MT%20 MINES %205_6_ 2010%20ORDER.pdf
Jun 4, 2010 ... The company has extensive experience with mine remediation projects, including the stimulus-funded Iron Mountain Mine restoration project ...
www.mailtribune.com/apps/pbcs.dll/article?AID=/20100604/NEWS/...
Gary Almeraris , Bill Mariucci - 2009 - Science - 1386 pages
In 2001, North Pacific Research was hired to upgrade the capture and control facility. The general layout of the Iron Mountain Mine is shown in Figure 1. ...
books.google.com/books?isbn=0873353048 ...
In 1896, Mountain Copper Company began successfully mining copper at Iron Mountain Mine and built Shasta County's first copper smelter at Keswick. ...
shastacountyhistory.com/copper_mining_and_the_copper_smelters - Cached
Aug 26, 2010 ... 6.1 Iron Mountain , California; 6.2 Acid Drainage Technology Initiative, ... Acid mine drainage in a stream just outside of Pittsburgh, PA. ...
microbewiki.kenyon.edu/index.php/Acid_ mine _drainage - Cached
At Iron Mountain near Redding, CA research is currently focusing on a “molecular-level understanding of the metabolism of organisms involved in AMD formation”. The project is using several methods to identify the molecular community and the roles of specific organisms present. DNA sequence analysis is used to learn what organisms are in the environment and then fluorescence in-situ hybridizations (FISH) determines cell type distribution and geochemical conditions. Samples are taking from different locations such as sediments, pore fluids, free-flowing waters, and subaerial biofilms. These field samples then serve as innoculum in various media that are incubated under aerobic, microaerophillic, and anaerobic conditions. Information about growth rates, metabolic capability, and optimal growth conditions is taken from isolates which are then identified through DNA sequence analyses. Currently, analysis has identified Leptospirillum group II, Leptospirillum group III, and Ferroplasma acidarmanus. [9] Allen, E. and Banfield, J. 2005. “Community genomics in microbial ecology and evolution”. Nauture Reviews Microbiology 3:489-498. http://seismo.berkeley.edu/~jill/amd/AMDresearch.html#fieldsite
by I Gallery
Apr 19, 2010 ... Microbial Community Thriving in Acid Mine Drainage ... abandoned gold mine at Iron Mountain , one of the nation's worst Superfund sites (see ...
genomicscience.energy.gov/research/progress_metagenomics.shtml - Cached
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THE COMPOSITION OF COEXISTING JAROSITE-GROUP MINERALS AND WATER FROM THE RICHMOND MINE , IRON MOUNTAIN , CALIFORNIA. H. E. Jamieson, C. Robinson, C. N. Alpers ...
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refuse piles. This species optimally grew at 55°C and pH about 2. At the Iron Mountain Mine site, a new iron-oxidizing Archaeon has been found, Ferro- ...
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[PDF]
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the Iron Mountain Mine site may be intimately linked to the mechanism and rate of sulphur oxidation in different environ- ments. It is the goal of this ...
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With a pH of -3.6, the puddles found in the Iron Mountain Mine are more acidic ... The Iron Mountain Mine was the largest copper mine in California in the ...
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Acid Mine Drainage ( Iron Mountain ). Download · Analysis · Info · Home. Analysis. Assembly. Gene Calling. Annotation. • Acid Mine Drainage ...
genome.jgi-psf.org/acidm/acidm.analysis.html - Cached
Data Usage Policy (February 5, 2009)
As a public service, the raw sequence data from the genome sequencing projects are being made available by the Department of Energy Joint Genome Institute (JGI) before scientific publication. The purpose of this policy is to balance the imperative of DOE and JGI that the data from its sequencing projects be made available to the scientific community as soon as possible with the reasonable expectation that the collaborators and the JGI will publish their results without concerns about potential preemption by other groups that did not participate in the effort.
These pre-publication data are preliminary and may contain errors. The goal of our policy is that early release should enable the progress of science. By accessing these data, you agree not to publish any articles containing analyses of genes or genomic data on a whole genome or chromosome scale prior to publication by JGI and its collaborators of its comprehensive genome analysis. These restrictions will be lifted on the publication of the whole genome description or the expiration of a 12-month period after public release of the 8x assembly and draft annotation, whichever comes first. During this waiting period, the data will be available for any kind of publication that does not compete directly with planned publications (e.g. reserved analyses) of the JGI and collaborators. A principal collaborator or "champion," listed in the organsim's Info page and is the point of contact and arbiter regarding publication plans. Scientists are strongly encouraged to contact the principal collaborator and JGI about their intentions and any potential collaboration.
Reserved analyses include the identification of complete (whole genome) sets of genomic features such as genes, gene families, regulatory elements, repeat structures, GC content, etc., and whole-genome comparisons of regions of evolutionary conservation or change. Manually annotated genes within the Genome Portal are also reserved. Studies of any type on the reserved data sets that are not in direct competition with those planned by the JGI and its collaborators may also be undertaken following an agreement to that effect. Interested parties are encouraged to contact the the principal collaborator and JGI to discuss such possibilities.
If these data are used for publication, the following acknowledgment should be included: "These sequence data were produced by the US Department of Energy Joint Genome Institute http://www.jgi.doe.gov/ in collaboration with the user community." We request that you notify us upon publication so that this information can be included in the final annotation.
The data may be freely downloaded and used by all who respect the restrictions in the previous paragraphs. While still in waiting period status, the assembly and raw sequence reads should not be redistributed or repackaged without permission from the JGI. Any redistribution of the data during this period should carry this notice: "The Joint Genome Institute provides these data in good faith, but makes no warranty, expressed or implied, nor assumes any legal liability or responsibility for any purpose for which the data are used." Once moved to unreserved status, the data are freely available for any subsequent use.
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Microbiome Information
Genome Statistics
Phylogenetic Distribution of Genes
Phylogenetic Profiler
Genome Viewers
Export Genome Data
Scaffold Search
| Acid Mine Drainage |
| 2001200000 |
| 256318 |
| 20823 |
| Gm00001 |
| metagenome |
| Draft |
| 2006-12-20 |
| 2010-04-17 |
| No |
| Yes |
| Method : tetra Thermoplasmatales archaeon Gpl ( 410 ) Leptospirillum sp. Group II ( 70 ) Leptospirillum sp. Group III ( 474 ) Ferroplasma acidarmanus Type I ( 170 ) Ferroplasma acidarmanus Type II ( 59 ) |
| Gm00001 |
| 20823 |
| Nature (428, 37-43) |
| USA |
| 2005 |
| Iron Mountain California |
| -122.515068 |
| 40.678099 |
"Iron Mountain California 40.678099 -122.515068 "); GEvent.addListener(gmarker, "click", function() { gmarker.openInfoWindowHtml("Iron Mountain California 40.678099 -122.515068 "); }); } // |
| DOE, NSF |
| DOE Joint Genome Institute, Univ of California, Berkeley |
| Richmond mine at Iron Mountain California |
| 38-42 |
| 0.83-1.28 |
| Acidic, Metal tolerance, Pink biofilm |
| None |
| Biotechnological, Environmental |
| Acid mine, Biofilm, High metal concentration |
| 10830886 | 100.00% | |
| DNA coding number of bases | 8854527 | 81.75% |
| DNA G+C number of bases | 4696265 | 45.77% 1 |
| 1183 | 100.00% | |
| CRISPR Count | 14 | |
| 12820 | 100.00% | |
| Protein coding genes | 12559 | 97.96% |
| Pseudo Genes | 0 | 0.00% |
| RNA genes | 261 | 2.04% |
| rRNA genes | 12 | 0.09% |
| 5S rRNA | 3 | 0.02% |
| 16S rRNA | 5 | 0.04% |
| 18S rRNA | 0 | 0.00% |
| 23S rRNA | 4 | 0.03% |
| 28S rRNA | 0 | 0.00% |
| tRNA genes | 249 | 1.94% |
| Other RNA genes | 0 | 0.00% |
| Protein coding genes with function prediction | 7172 | 55.94% |
| without function prediction | 5387 | 42.02% |
| Protein coding genes connected to KEGG pathways 3 | 2430 | 18.95% |
| not connected to KEGG pathways | 10129 | 79.01% |
| Protein coding genes connected to KEGG Orthology (KO) | 3955 | 30.85% |
| not connected to KEGG Orthology (KO) | 8604 | 67.11% |
| Protein coding genes connected to MetaCyc pathways | 1384 | 10.80% |
| not connected to MetaCyc pathways | 11175 | 87.17% |
| Protein coding genes connected to SwissProt Protein Product | 0 | 0.00% |
| not connected to SwissProt Protein Product | 12559 | 97.96% |
| Protein coding genes with enzymes | 2297 | 17.92% |
| w/o enzymes but with candidate KO based enzymes | 0 | 0.00% |
| Protein coding genes with COGs 3 | 7095 | 55.34% |
| with Pfam 3 | 7265 | 56.67% |
| with TIGRfam 3 | 2449 | 19.10% |
| with IMG Terms | 0 | 0.00% |
| with IMG Pathways | 0 | 0.00% |
| with IMG Parts List | 0 | 0.00% |
| in internal clusters | 7303 | 56.97% |
| Fused Protein coding genes | 0 | 0.00% |
| Protein coding genes coding signal peptides | 2189 | 17.07% |
| Protein coding genes coding transmembrane proteins | 2416 | 18.85% |
| Obsolete Protein coding genes | 0 | 0.00% |
| Revised Protein coding genes | 4 | 0.03% |
| Genes with Proteomic data | 0 | |
| 1728 | 35.46% | |
| 1762 | 0.00% | |
| 1007 | 0.00% |
1 - GC percentage shown as count of G's and C's divided by a total number of G's, C's, A's, and T's.
This is not necessarily synonymous with the total number of bases.
2 - Pseudogenes may also be counted as protein coding or RNA genes,
so is not additive under total gene count.
3 - Graphical view available.
Gene annotation values are precomputed and stored in a tab delimited file
also viewable in Excel.
Gene information is precomputed and stored in a tab delimited file
also viewable in Excel.
Download sequences and gene information for this genome.
FASTA nucleic acid file for all scaffolds
FASTA amino acid file for all proteins
FASTA nucleic acid file for all genes
FASTA intergenic sequences
Tab delimited file for Excel with gene information
Iron Mountain Mine Cleanup - State of Calif., CVRWQCB, et al. v. Iron Mountain Mines , Inc., et al., (EDCal No. CIV-S-91-1167-DFL-PAN) and U.S. v. ...
www.co.merced.ca.us/BoardAgenda/2010/MG154943/.../5.TXT - Cached
[PDF]
File Format: PDF/Adobe Acrobat - Quick View
Effects to biota are often acute (fish kills). ? Effects to plants are long lasting (barren hill sides). Iron Mountain Mine , Shasta County ...
www.dtsc.ca.gov/SiteCleanup/upload/AML_Threat-presentation.pdf
The Iron Mountain Mine site includes mining property on the topographic ... Iron Mountain Mines , Inc. (IMMI) acquired a majority of the parcels to the mine ...
cfpub.epa.gov/superrods/index.cfm?fuseaction=data.rodinfo... - Cached
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Environment America is a federation of state-based, citizen-funded environmental advocacy organizations. Our professional staff in 29 states and Washington, D.C., combines independent research, practical ideas and tough-minded advocacy to overcome the opposition of powerful special interests and win real results for the environment. Environment America draws on 30 years of success in tackling environmental problems. |
TACHA , Circuit Judge, dissenting:
I respectfully dissent. Rule 19(a) and Rule 24(a)(2) "are intended to mirror each other." Oneida Indian Nation v. Madison Cnty., 605 F.3d 149, 162 (2d Cir. 2010); see also Fed. R. Civ. P. 24, 1966 Amendment Note ("Intervention of right is here seen to be a kind of counterpart to Rule 19(a) . . . ."). "If a party is not `necessary' under Rule 19(a) then it cannot satisfy the test for intervention as of right under Rule 24(a)(2)." Oneida Indian Nation, 605 F.3d at 162 (alterations omitted). Likewise, an applicant under Rule 24(a)(2) "is [generally] entitled to intervene in an action when his position is comparable to a [necessary party] under Rule 19(a)[]." Fed. R. Civ. P. 24, 1966 Amendment Note.
Of course, even if a party is deemed "necessary" under Rule 19(a), it will not be permitted to intervene under Rule 24(a)(2) if its motion is untimely. Although not an exhaustive list of the circumstances that render a motion to intervene untimely, an applicant's motion is generally untimely if: (1) the applicant has delayed unduly in bringing its motion to intervene, see 7C Charles A. Wright et al., Federal Practice & Procedure § 1916 at 539-40 (3d ed. 2007) ("When the applicant appears to have been aware of the litigation but has delayed unduly seeking to intervene, courts generally have been reluctant to allow intervention."); or (2) the timing of the applicant's intervention will cause undue prejudice to the existing parties, see Utah Ass'n of Cntys v. Clinton, 255 F.3d 1246, 1250 (10th Cir. 2001) ("The requirement of timeliness is not a tool of retribution to punish the tardy would-be intervenor, but rather a guard against prejudicing the original parties by a failure to apply sooner.").
In this case, the district court held that the Nation is a "necessary party," however, just over a month later, it denied the Nation's motion to intervene as untimely. In my view, the Nation did not delay unduly in moving to intervene, nor would the timing of its intervention cause prejudice to the existing parties which outweighs the prejudice that would be caused by its exclusion from this lawsuit. Accordingly, I respectfully dissent from the majority's opinion which affirms the denial of the Nation's motion to intervene.
To begin, the majority applies the incorrect standard of review. Although we normally review a district court's ruling on timeliness for an abuse of discretion, see, e.g., Coal. of Ariz./N.M. Cntys. for Stable Econ. Growth v. Dep't of Interior, 100 F.3d 837, 840 (10th Cir. 1996), when a district court's decision is premised on an improper legal standard, it is not entitled to deference. See Kretzinger v. First Bank of Waynoka, 103 F.3d 943, 946 (10th Cir. 1996) ("[W]hen a lower court's factual findings are premised on improper legal standards or on proper ones improperly applied, they are not entitled to the protection of the clearly erroneous standard, but are subject to de novo review."). The majority adopts a timeliness test that measures the applicant's delay from the time it could no longer reasonably believe its interests were adequately represented by an existing party. The district court, however, did not apply this test. Rather, it held that "[t]he defendants have adequately demonstrated that the Cherokee Nation knew of its interest in this case from the outset of the litigation. " Aplt. App. Vol. V at 927-28 (emphasis added). Because the district court did not, in considering the timeliness of the Nation's motion to intervene, take into account whether the Nation could have reasonably believed its interests were adequately represented by an existing party, it did not apply the correct test for timeliness. Therefore, its decision should be reviewed de novo rather than for an abuse of discretion.
Next, while I agree with the majority's newly adopted test for timeliness, I cannot concur in its application of that test. As the majority correctly holds, when assessing the timeliness of a motion to intervene under Rule 24(a)(2), the applicant's delay in bringing the motion is measured from the time the applicant could no longer reasonably believe its interests were adequately represented by an existing party. [ 3 ] See Reich v. ABC/York-Estes Corp., 64 F.3d 316, 322 (7th Cir. 1995) ("[Applicants] reasonably believed their employer was representing their interests.") (emphasis added); Sierra Club v. Espy, 18 F.3d 1202, 1206 (5th Cir. 1994) ("[T]he movants legitimately believed that the Forest Service would defend its timber sales and planning.") (emphasis added) (quotations omitted); Hill v. W. Elec. Co., 672 F.2d 381, 386 (4th Cir. 1982) ("[T]he critical issue with respect to timeliness is whether the proposed intervenor moved to intervene as soon as it became clear that the interests of the unnamed class members would no longer be protected by the named class representatives.") (emphasis added). With respect to the CERCLA damages claims, the majority concludes that the Nation could never have reasonably believed that its interests were adequately represented by the State because "[t]he State . . . had not sought recovery of past, present, or future response costs of the Nation." Maj. at 20-21. In other words, the majority holds that an applicant under Rule 24(a)(2) who is seeking damages cannot reasonably believe that its interests are adequately represented by an existing party unless an existing party explicitly seeks damages on behalf of the applicant.
The rule is simply not construed so narrowly. Indeed, "[t]he representation whose adequacy comes into question under [Rule 24(a)(2)] is not confined to formal representation like that provided by a trustee for his beneficiary or a representative party in a class action for a member of the class." Fed. R. Civ. P. 24, 1966 Amendment Note. Rather, we have gone so far as to presume adequate representation "when an applicant for intervention and an existing party have the same ultimate objective in the litigation." Clinton , 255 F.3d at 1255. There can be little doubt that the ultimate objectives of the State and the Nation were congruent with respect to the CERCLA claims—they both sought to recover monetary damages from Tyson in order to compensate for and repair the damage it allegedly caused to the IRW.
The majority also holds that even if the Nation could have reasonably believed its interests were adequately represented by the State when the lawsuit was initially filed, it "can still be charged with a delay of almost a year," from the time Tyson filed its Rule 19 motion. Maj. at 24. I disagree. In my view, at the time Tyson filed its Rule 19 motion, the Nation could have reasonably believed its interests were adequately represented because it could have reasonably believed that the State would be allowed to pursue CERCLA damages individually, and that the State and Nation could then jointly apportion those damages through agreement or in subsequent litigation.
In resolving Tyson's Rule 19 motion, the district court concluded that "the only feasible way to compensate the co-trustees and avoid a double recovery or unjust enrichment to one trustee at the expense of another is to award damages in the ratio or percentage of actual management and control that is exercised by each of the various co-trustees," and that it could "make no determination of the ratio or percentage of actual management and control exercised by the [Nation] in the Nation's absence." Oklahoma v. Tyson Foods, Inc., 258 F.R.D. 472, 480 (N.D. Okla. 2009). For this point, the district court relied on Coeur D'Alene Tribe v. Asarco Inc., 280 F. Supp. 2d 1094 (D. Idaho 2003) (" Coeur D'Alene I "). That decision, however, had been subsequently reconsidered and reversed by the judge who issued it. See United States v. Asarco Inc., 471 F. Supp. 2d 1063, 1068 (D. Idaho 2005) (" Coeur D'Alene II ") ("The Court revises its trusteeship ruling . . ."). Indeed, in Coeur D'Alene II, Judge Lodge held:
The language of the statute dictates that a co-trustee acting individually or collectively with the other co-trustees may go after the responsible party or parties for the full amount of the damage, less any amount that has already been paid as a result of a settlement to another trustee by a responsible party. If there is a later disagreement between the co-trustees, that disagreement would have to be resolved by successive litigation between the trustees, but it could in no way affect the liability of the responsible party or parties.
Id. Thus, until the district court resolved Tyson's Rule 19 motion on July 22, 2009, the Nation could have, in reliance on Coeur D'Alene II, reasonably believed that the State could adequately represent its interest in this lawsuit. [ 4 ] In my view, the Nation's delay should be measured from that date.
Next, I cannot agree with the majority's assessment of the prejudice that the Nation's intervention would cause Tyson. "The prejudice prong of the timeliness inquiry measures prejudice caused by the intervenor's delay—not by the intervention itself." Clinton , 255 F.3d at 1251 (quotations omitted). In its discussion of the prejudice Tyson would suffer if the Nation were permitted to intervene, the majority first cites the potential need for additional discovery and additional motions regarding the Nation's claims. The fact that intervention may "double the work load" or "add issues" to a case, however, is a product "of intervention itself rather than the timing of the motion to intervene." Id.
The majority further notes that because the trial date was less than three weeks away at the time the Nation sought to intervene, its intervention and the trial delay it would cause would significantly disrupt Tyson's attorneys' and witnesses' schedules. To be sure, Tyson would suffer some added cost because of a trial delay only three weeks before trial was set to begin; however, Tyson is at least partly responsible for this belated delay and the attendant added cost. Although Tyson raised its Rule 19 defense in its answer, it waited over three years to pursue it. And, because the Nation could have reasonably believed its interests were adequately represented until the district court deemed it a "necessary" party, Tyson's own delay in bringing its Rule 19 motion was a causal factor in the timing of the Nation's motion to intervene. In my view, Tyson cannot now complain about the timing of the Nation's motion to intervene when Tyson is at least partly responsible for that timing. Furthermore, Tyson should not be rewarded for waiting to pursue its Rule 19 defense until it would be arguably too late for the Nation to intervene.
I also cannot sympathize with Tyson's protestations of the prejudice that would be caused by a trial delay when not long before the Nation sought to intervene, Tyson sought to continue the trial. It is irrelevant that Tyson's motion for a continuance may "read[] less like a request for a continuance than a plea for rulings on pending motions." Maj. at 28. The fact remains that on June 30, 2009, Tyson sought to delay the trial and even argued that "[a] short continuance of the trial date would not prejudice any party. " Def's Mot. for Modification of May 14, 2009 Scheduling Order & Integrated Br. in Supp. at 3, Tyson Foods, Inc., No. 05-cv-329-GKF-PJC (N.D. Okla. June 30, 2009) (emphasis added). In my view, Tyson's request for a continuance and its claim on June 30 that a trial delay would not prejudice any party greatly undermines its claim only two months later that a trial delay would cause it extreme prejudice.
Finally, in discussing whether any unusual circumstances counsel for or against allowing the Nation to intervene, the majority ignores one obvious unusual circumstance—the significant loss the State will potentially incur if the Nation is excluded from this lawsuit. During the more than three years that Tyson waited to bring its Rule 19 defense, the State expended significant time and money to develop its damages claims. When the district court ruled in favor of Tyson on its Rule 19 motion, all of those claims were dismissed. If the Nation is not permitted to intervene, the State and Nation will have to pursue the hundreds of millions of dollars in damages the State initially sought on its own, together in a subsequent lawsuit. Neither the State nor the Nation believes a subsequent cooperative suit is a realistic possibility. See Aplt. App. Vol. V at 875 (Attorney General of the Nation explaining, "If we are not allowed to intervene in this lawsuit, we will have to, at some point, file a new lawsuit. We will have to try to join the State [] who also has immunity. Whether or not politically they can do it at that time is an issue. Whether or not we can afford to do it is a very real issue."); see also Br. of State of Oklahoma at 31 ("Because neither sovereign can be joined against its will, both would again need concurrently to waive their sovereignty. Such coordination of priorities is often difficult, potentially providing [Tyson] with an unwarranted and unjust escape from liability for damages and/or response costs."). Thus, if the Nation is excluded from this lawsuit, the State will potentially have wasted the significant amount of time and money it spent developing these complex damages claims. In my view, the loss Tyson would incur by having to rearrange its attorneys' and witnesses' schedules pales in comparison to the loss of time and money the State will potentially suffer if the Nation is excluded from this action.
In sum, the Nation did not delay unduly in seeking to intervene in this lawsuit. Rather, it acted quite prudently throughout and only sought to intervene when it could no longer reasonably believe that its interests were adequately represented by the State. Furthermore, because the prejudice the State will potentially suffer if the Nation is excluded from this case is significantly greater than the prejudice Tyson will suffer if the Nation is permitted to intervene, I would reverse the district court's decision and allow the Nation to intervene so that all the claims relating to Tyson's alleged pollution of the IRW can be tried together in one lawsuit. For these reasons, I respectfully dissent.
1. The complaint was later amended on two occasions. The first amended complaint added a count seeking civil penalties and injunctive relief under the Resource Conservation and Recovery Act, 42 U.S.C. § 6972. The second amended complaint, filed July 16, 2007, dropped a defendant. The changes from the original complaint are irrelevant to the issues on appeal.
2. The first reference to res judicata by the Nation's Attorney General came in the following comment:
We could bring a new CERCLA lawsuit, Your Honor. The problem, we believe that we would have to join the State of Oklahoma pursuant to your Honor's finding. They have immunity. We would have to do all of these things that have already been done in this lawsuit and also, Your Honor, depending on what happens here, we might very well face the real issues of res judicata or issue preclusion. Depending upon what happens to the State's case in this lawsuit it could very well affect any later lawsuit.
Aplt. App., Vol. 5 at 877. Later, the Attorney General was even more abbreviated:
Prejudice to the applicant we've talked about, it's not just money, it's also the time, the issue preclusion, res judicata, bringing in another sovereign, starting all over, the existence of any unusual circumstances.
Id. at 905. The Tyson attorney obviously thought that these comments were suggesting that the Nation itself could be barred. His response was:
Issue preclusion does not run against a nonparty, so that's just a complete red herring.
Id. at 926.
1. Although the majority confusingly states that "we join the other circuits that measure delay from when the movant was on notice that its interests may not be protected by a party already in the case," Maj. at 18 (emphasis added), the majority's application of this standard correctly measures delay from when the Nation could no longer reasonably believe its interests were adequately represented. See Maj. at 21 ("The Nation could never have reasonably thought that the state was representing the Nation's interests in recovering its damages.").
2. I express no view on whether the district court properly resolved Tyson's Rule 19 motion. Rather, I only point out that until that motion was resolved, the Nation could have reasonably believed that the district court would adopt the position of Coeur D'Alene II rather than the position of Coeur D'Alene I regarding the CERCLA trustee issue.
IRON MOUNTAIN HAZARD ASSISTANCE REMEDIATION DIRECTORATE
COMING TOGETHER FOR THE SAFE WATERSHED REFORM-ACT:
IMMI's STRATEGY FOR ACHIEVING THE SAFE WATERSHED REFORM-ACT (SWR)
Public Discussion NOT FINAL – August 2010 TESTIMONY DE BENNE ESSE
On April 15, 2010, Environmental Protection Agency (EPA) Administrator Lisa P. Jackson brought together a diverse group of individuals to discuss and explore opportunities for reinvigorating EPA's approaches to achieving clean water in America . At this forum, The Coming Together for Clean Water , Administrator Jackson stated her desire “to see a huge leap forward in water quality as we saw in the 1970s after the passage of the Clean Water Act.” The forum was one of many drivers for this strategy which charts EPA's path to achieve that leap forward in our nation's water quality and outlines a sustainable approach to meet our economic needs and improve the quality of the nation's water for generations to come.
EPA's approach focuses around our two thematic lines: 1) healthy watersheds, and 2) sustainable communities – both critical Administration and EPA priorities. It relies on the concepts and ideas generated at the Coming Together for Clean Water forum and also incorporates the bold new approaches identified from the October 2009 Clean Water Action Plan, which initiated efforts to revamp the National Pollutant Discharge Elimination System (NPDES) compliance and enforcement program.
SAFE WATERSHED REFORM-ACT CHALLENGES
The Safe Watershed Reform-Act (SWR) sets a vision for the watersheds of the United States to be safe. While we have certainly made progress toward that vision since 1972, we face challenges in attaining it.
In 1972 when the CWA was enacted, traditional point sources were thought to be the dominant cause of pollution. Now we have a better understanding that safe watersheds does not necessarily mean clean water, and vice versa. IT IS OXYMORONIC THAT THE FAILURE OF THE CWA BEGINS WITH A FUNDAMENTAL LACK OF GOVERNMENT ACCOUNTABILITY OR UNDERSTANDING REGARDING THE VERY DEFINITION OF CLEAN OR SAFE WATER AND THE OBVIOUS USURPATION AND COERCION THAT HAS RESULTED. WATER IS KNOWN AS THE UNIVERSAL SOLVENT, WATER IS ALWAYS FOUND IN NATURE WITH CONSIDERABLE DISSOLVED MINERALS, AND THE FACT IS THAT UNTIL THE LAST 30 YEARS OR SO, THE RIVERS OF OUR COUNTRY AND INDEED AROUND THE WORLD WERE TREATED AS LITTLE MORE THAN OPEN SEWERS. PURE WATER IS INDEED UNHEALTHY FOR DRINKING, AS IT WILL LEACH MINERALS FROM THE BODY. MOST WATERS IN THE U.S.THAT ARE OBTAINED FROM WELLS (AQUIFERS) CONTAIN SUBSTANTIAL AMOUNTS OF MINERALS SUCH AS CALCIUM AND IRON, AND IN MANY LOCALES IT IS NECESSARY TO INSTALL A “WATER SOFTENER” OR OTHER TREATMENT USING MINERAL SALTS OR FILTRATION TO EXCHANGE OR REMOVE THE MINERALS AND MAKE THE WATER EFFECTIVE FOR WASHING AND PALATABLE TO DRINK.
FISHABLE AND SWIMMABLE IS LIKEWISE ARBITRARY, AS IT IS CERTAIN THAT THE OCEANS ARE USUALLY FISHABLE AND SWIMMABLE, BUT WOULD BE CONSIDERED POISONOUS UNDER THE TERMS OF THE CLEAN WATER ACT.
CALIFORNIANS WHO SAY THEY WANT DRINKABLE RIVERS? IRON MOUNTAIN MINE BOULDER CREEK IS PATHOGEN FREE.
IF YOU HAVE NOT DONE SO ALREADY, THE CWA IS HEREBY ABOLISHED:
THE SAFE WATERSHED REFORM-ACT.
Over the last 30 years National Water Quality Inventories have documented pathogens as a leading cause of river and stream impairments.
EPA MUST ADDRESS THIS PRIORITY.
THE RAPTURE OF ENVIRONMENTALISM
THERE IS NO EVIDENCE OF DAMAGES, INJURY, HAZARD OR RISK. DAM IMPROVEMENT
THE JUDGMENT IS VACATED BY ABSOLUTE ORDER
YOU SHOULD CONSIDER ALL THE GOLD IN CALIFORNIA .
INNOCENCE DISCHARGED; ABSENCE OF INJURY; INCAPACITY OF JURISDICTION; MALICIOUS PROSECUTION; DEFAMATION OF INNOCENT LAND & OWNER;
H.A.R.D. LOOK
C. National Environmental Policy Act
In passing NEPA, Congress “recognized the profound impact of man's activity on the interrelations of all components of the natural environment” and set out “to create and maintain conditions under which man and nature can exist in productive harmony.” 42 U.S.C. § 4331(a). [WE should all be MUSICIANS?]
To bring federal action in line with Congress' goals and to foster environmentally informed decision-making by federal agencies, NEPA “establishes ‘action-forcing' procedures that require agencies
to take a ‘hard look' at environmental consequences.” Metcalf v. Daley , 214 F.3d 1135, 1141 (9th Cir. 2000) (quoting Robertson v. Methow Valley Citizens Council , 490 U.S. 332, 348 (1989)). Foremost among those procedures is the preparation of an environmental impact statement (EIS).
Agencies considering “major Federal actions significantly affecting the quality of the human environment” are required to prepare an EIS. 42 U.S.C. § 4332(C). The EIS “shall provide full and fair discussion of [the] significant environmental impacts” of the proposed action. 40 C.F.R. § 1502.1. That discussion serves two purposes:
First, it ensures that the agency, in reaching its decision, will have available, and will carefully consider,
detailed information concerning significant environmental impacts. Second, it guarantees that the relevant
information will be made available to the larger audience that may also play a role in both the decisionmaking process and the implementation of that decision. Dep't of Transp. v. Pub. Citizen , 541 U.S. 752, 768 (2004) (internal quotation marks, brackets, and citation omitted). By WESTERN W ATERSHEDS PROJECT v. KRAAYENBRINK 13249 focusing agency and public attention on the environmental effects of proposed agency action, “NEPA ensures that the agency will not act on incomplete information, only to regret its decision after it is too late to correct.” Marsh v. Or. Natural Res. Council , 490 U.S. 360, 371 (1989).
and coordinated compliance and enforcement, more integrated approaches to capitalize on synergies, improved communication with a broader audience, and greater leveraging of programs. Just as EPA will have to employ all of its tools, so too must all our partners—state, local, tribal, and federal—play their roles.
EPA must improve and adapt regulations, permitting and compliance/enforcement efforts as a key first step to change our current path. EPA will also work to greatly increase cooperation, partnerships and communication to achieve victories in areas where regulatory approaches are not appropriate. We will support legislation and consider administrative action to restore the CWA protections to wetlands and headwater streams that provide clean water for human and ecological uses. We will take action to ensure all major point sources of pollution have permits that require clear, verifiable results. And by implementing new enforcement approaches per the Clean Water Action Plan , including more integrated problem solving, collaboration across standards setting, permitting and enforcement programs, EPA will bring violators into compliance.
Another key element of this strategy is improvement of assessment and classification of watersheds. And building on this, EPA will increase cooperation with states to identify and protect those waters that are healthy; a far more cost effective approach than cleaning up a waterbody [WATER BODIES] after it has been polluted. EPA also seeks to find ways to better integrate new technologies and approaches into our clean water programs. For example, green infrastructure provides an important set of tools for changing the way stormwater discharges STORM WATER IS viewed—from being treated as a waste product that comes with high-cost infrastructure systems – to realizing and using it as a valued resource. Green infrastructure can also have positive effects on sanitary sewer overflows and combined sewer overflows, which are major urban water concerns. EPA will also explore opportunities to better integrate oNLY sustainable practices into ALL policies and programs; for instance: energy-neutral wastewater treatment, water efficiency, energy efficiency, and water reuse.
EPA will seek solutions and implement programs to address recent, emerging, and growing watershed quality issues including increased mining activities, drilling, aging infrastructure and increased urbanization and development. Invasive species are also a significant threat to aquatic ecosystems. Using both regulatory and non-regulatory programs, EPA is taking meaningful steps to reduce the likelihood that invasive species are able to spread from one waterbody to another . Additionally, as excess nutrient pollution continues to be a major concern, EPA sees a better means to addressing this problem on the critical path to success. EPA will work in partnership with states to better manage excess nutrient enrichment in LAND AND surface waters and promote state accountability frameworks that include publicly-available, science-based, state nutrient reduction implementation activities that are watershed-based and have NON-COERCIVE FEDERALLY-binding mechanisms to achieve the reductions.
STRATEGIES TO ACHIEVE SAFE WATERSHED REFORM-ACT GOALS
This strategy's success depends on many factors working together. Local governments, states, and tribes, each working under their own authorities and capacities, to ensure watersheds in their jurisdiction are safe. It is up to EPA to bring these groups together to more smoothly coordinate and harmonize our efforts in order to optimize the results. EPA has identified several key strategies to guide our efforts, and actions that respond to the challenges we face: Public Discussion NOT FINAL – August 2010 4
• Systematically assess the nation's watersheds to provide a baseline for transparently tracking progress;
• Enhance COMMUNITIES ability to restore degraded watersheds, and take action to increase the number of restored watersheds;
• Reduce emissions entering our watersheds; and
• Enhance watershed resiliency and revitalize communities through multi-benefit, sustainable technologies and approaches that will ensure resiliency to development, urbanization and other factors.
KEY ACTIONS FOR STRENGTHENING WATERSHED PROTECTIONS
By approaching the most significant safe land and watershed challenges facing the nation from a more realistic perspective and using resources creatively, we will undertake a range of actions to implement these strategies to get a better understanding of the state of our nation's watersheds, work to protect what we've got, fix what's broken, expand our work to keep watersheds safe, and build for the future while ensuring we are meeting our economic and community needs. In doing so, the community will expand existing partnerships and develop new, locally-based partnerships, and implement tools and policies that will foster tailored approaches. In addition to strengthening and expanding partnerships, to achieve the next level of protection, we will work within the community and outside the community to strategically leverage funding opportunities to reduce emissions from unregulated sources.
In implementing these actions, the community remains committed to the following principles:
• Use bold, new, creative, more effective ways to implement SWR and other programs, more strategically deploy existing regulatory authorities and enforcement programs, as well as voluntary approaches and market-based incentives;
• Rely on robust science and cutting-edge technologies, particularly in emerging areas of concern such as climate adaptation, ecosystem services, integrated watershed approaches;
• Increase focus on improving environmental quality in disadvantaged communities that have historically suffered severe degradation of watershed quality that provide key ecosystem services;
• Engage a broader range of stakeholders in decision-making and provide the EPA and other stakeholders with reliable information about watersheds; and
• Achieve and document measurable results.
Know What You've Got – Systematically Assess the Nation's Watersheds to Provide a Baseline Effective management of watershed resources requires reliable information and an informed public. To better inform our efforts, improve accountability, policy, planning, increase stewardship, and better measure progress of ongoing efforts to improve the quality of data in the long-term; the EPA will focus on systematically assessing the nations watersheds. The National Aquatic Resource Surveys for streams, lakes and coastal waters already provide the baseline for the condition of watersheds across the - Public Discussion Draft – August 2010 5 -
nation against which we can track changes in water condition at the national and regional scales. In the next several years, EPA will complete the first set of five Aquatic Resource Surveys that will give us a complete picture of the condition of all watershed types across the nation. EPA, working with our partners, will also explore opportunities to build on existing monitoring and assessment efforts to better identify, classify, and track the status of our watersheds. This multi-scaled approach to monitoring and assessment will give communities the information they need to make informed decisions about how best to manage watershed resources and help the public understand the effectiveness of federal and state investments.
Key EPA Actions:
• Complete cycle of National Aquatic Resource Surveys to provide baseline for documenting trends in degradation and major stressors in the next several years,
• Complement existing impaired watershed listings with identification of healthy watersheds across the U.S. ; and
• Explore opportunities for increasing strategic information attained from and integrity of the Integrated Watershed Quality Monitoring and Assessment Reports to provide a more comprehensive picture.
Protect What We Have – Increased Focus on Protection of Healthy Watersheds
EPA's watershed quality protection program is focused on the remediation of impaired watersheds and the reduction of specific emission levels in watersheds. While EPA and our state partners have made and are continuing to make considerable progress in this important work, we recognize the need to protect and maintain healthy watersheds as well. Healthy watersheds provide our communities with drinking water, recreational opportunities, environmental benefits and services, including safe watershed for healthy aquatic ecosystems, habitat for fish and wildlife, and better resilience against floods and future land-use changes. Protecting healthy watersheds will result in considerable savings over time if the need for costly restoration can be avoided in watersheds that would otherwise become impaired by cumulative impacts.
EPA will study and report the health and safety of watersheds sufficiently for communities to explore, develop, and make available more effective information and expertise to conduct ecological assessments, to classify and list healthy watersheds. By developing, along with our state partners, a science-based structure on a national level, EPA hopes to provide the tools to help them inventory and then take action to protect their healthy watersheds. EPA will also enhance public awareness and, together with better equipped and organized State action, will ultimately lead to increased protection of our watershed assets.
COMMUNITIES will utilize SWR tools to increase protection of high quality watersheds, including revisions to water quality standards, and focus on protecting those watersheds that are threatened by coal and hard rock mining activities.
Key EPA Actions:
• Through the new Healthy Watershed Initiative, develop a common set of comprehensive metrics to create a national list of healthy watersheds (e.g., linking watershed protection and species diversity); use the latest state-of-the-science, peer-reviewed methods to conduct
Public Discussion Draft – August 2010 6
assessments to identify healthy watersheds across states using CWA funds (e.g., 604(b), 319, and 106) in partnership with other Federal agencies. With these assessments, help set States set priorities and implement protection and conservation programs;
?? Support legislation and consider administrative action to initiate SWR protections for our watersheds;
?? Use the full suite of SWR tools to dam high-quality streams from destruction and degradation caused by mining activities;
?? Propose changes to the state water quality standard regulations to protect watersheds; and
?? Ensure States are effectively administering watershed programs.
Fix What's Broken – Enhance THE COMMUNITIES Ability to Restore Watersheds
The restoration of watersheds will be critical to making significant progress. In order to do so EPA will use the Chesapeake Bay as a demonstration for improved monitoring of restoration progress. Success in cleaning up the Chesapeake Bay watershed will be a model for watershed protection in other parts of the country. This combined approach of protecting healthy watersheds and restoring impaired waters will ultimately improve the overall state of our nation's watersheds.
Key EPA Actions
?? Work with states to carry out more strategic and effective implementation of watershed-based plans;
?? Develop and implement reasonable assurance guidelines regarding watersheds identified in TMDLs;
?? Coordinate funding opportunities with USDA to accelerate nutrient and sediment reductions and tackle key agriculture challenges through an integrated approach using 319 Program, Clean Water State Revolving Fund (CWSRF), CWA section 117, STAR grants and USDA Conservation programs;
?? Use trading offsets and other market-based tools where appropriate, to improve watersheds;
?? Implement all of the above actions in conjunction with states in the Chesapeake Bay watershed and other federal agencies to execute the President's Executive Order to clean up the Chesapeake Bay.
In addition, in the Chesapeake Bay watershed, EPA will:
• Implement federal land management practices that protect forests and watersheds, and incorporate sustainable practices;
• Create a system for tracking and reporting watershed commitments and two-year milestone commitments;
• Implement current regulations for concentrated animal feeding operations (CAFOs) and propose new regulations to more effectively achieve pollutant reductions necessary to meet the Chesapeake Bay TMDL; and
• Implement improvements to the current watershed programs and initiate new national watershed rulemaking with Chesapeake Bay watershed provisions.
Keep it Safe – Safe Watersheds Reform-Act Public Discussion NOT FINAL – August 2010 7
EPA seeks to increase protection of our watersheds by reducing current loadings and preparing for substantial predicted increases associated with development, urbanization, climate change and other factors. Across the board, under the SWR, COMMUNITIES address a number of watershed challenges.
Where problems are identified, communities apply the best standards available, eliminate loopholes, and set performance standards through robust modifications to current regulations.
For example, in addition to the work underway in Chesapeake Bay as part of the President's recent Executive Order, EPA will use its expertise robustly to protect and restore threatened natural treasures such as the Great Lakes and the Gulf of Mexico as navigable waterways of the united states . EPA is heading up a multi-agency effort to restore and protect the Great Lakes, one of America 's great waterways, through the Great Lakes Restoration Initiative. In other parts of the nation, we will focus on nutrient pollution, which threatens the long-term health of important ecosystems such as the Mississippi River Basin . Further, given the environmental catastrophe resulting from the Deepwater BP oil spill, EPA will take all necessary actions to support efforts to clean up and restore the Gulf of Mexico ecosystem.
Key EPA Actions:
• Transfer the National Pollutant Discharge Elimination System (NPDES) which will streamline the regulatory authority to designate an animal feeding operating (AFO) as a concentrated animal feeding operation (CAFO);
• Develop guidance for publicly owned treatment works (POTWs) to protect the public and the environment from the effects of sanitary sewer overflows and the release of partially treated waste water from treatment facilities. Potential regulatory approaches include additional reporting and public notice when overflows occur, increased responsibilities for properly operating and maintaining sewer systems, clarifying the requirements for satellite collection systems, and addressing peak wet weather flows at the treatment plant. EPA will also explore more widespread use of green infrastructure techniques in combined sewer overflow control plans;
• Expand municipal storm water permitting coverage to currently unregulated areas and establish performance standards for storm water discharges from newly developed and redeveloped sites that result in reduced discharge of pollutants, including through the use of green infrastructure techniques;
• Develop guidance to reduce pesticide discharges to waters of the U.S. ;
• Audit point source programs (CAFOs, storm water, water quality based permits) that have significant nutrient reduction potential to assure full CWA tools implementation;
• Evaluate implications of study currently underway within EPA's Office of Research and Development on the relationship between hydraulic fracturing and water resources for taking further action to protect water quality;
• Develop guidance for cooling water intakes at over 1200 power plants and manufacturing facilities; and
• Work in partnership with states to better manage excess nutrient enrichment in surface waters, including:
Public Discussion Draft – August 2010 8
• Initiating scientific report(s) based on best available science and subject to peer review to determine necessary nutrient loads to restore and maintain watershed quality in key areas;
• Developing and implementing guidance to assist authorities in standards for nutrients;
• Improving public understanding of the seriousness of nutrient pollution including impacts on drinking water and other public health, environmental impacts, and economics; and
• Leveraging federal funding to assist communities in implementing nutrient reduction strategies.
Build for the Future – Enhance Watershed Resiliency and Revitalize Communities
In order to maximize clean watershed protection under current authorities, EPA is making a substantial shift in our programmatic approaches to identify and implement multi-benefit solutions that will help communities plan and be more responsive to changing factors such as population growth, increased urbanization and climate change. A more realistic approach will facilitate capitalizing on existing programs, tools, policies and available funding to achieve measurable results. A collaborative approach to community-based programs will achieve multiple objectives, break down traditionally stovepipe divisions, and broadly engage local communities in decisions that impact local and state waters. For example, capitalizing on green infrastructure, water/energy synergies and integrated water management are key features in this new approach.
EPA will develop and implement a renewed strategy on green infrastructure to identify and target the next set of actions that need to be undertaken to promote and support green infrastructure practices. EPA will also develop a framework for encouraging and facilitating more integrated watershed management approaches at the state and local level, and will support solutions that reduce infrastructure costs and promote more efficient, locally coordinated resource use. These more integrated solutions, ultimately, lead to long-term sustainability, community buy-out, better watershed quality, and more robust ecosystem services.
Key EPA Actions:
• Promote green infrastructure more broadly. Consider policy options to make green infrastructure solutions an available tool for meeting SWR requirements by: ensuring that MS4 permits include cost-effective green infrastructure approaches, including green infrastructure in CSO long-term control plans, considering the incorporation of non-traditional or green infrastructure alternatives in consent decrees, and other policies to increase adoption of green infrastructure practices;
• Encourage integrated water management approaches. Implement policies and help direct national attention toward more sustainable water management practices that better integrate land use at the watershed level. Building on synergies within the watershed sector, integrated approaches can allow communities to more sustainable watershed infrastructure and supply costs and investments,
Public Discussion Draft – August 2010 9
as well as potentially reduce overall energy consumption, and both utilize renewable energy and/or create new energy sources;
?? Encourage states to use their Clean Water State Revolving Funds (CWSRF) for projects that will best advance these policies and are consistent with the community's sustainability policy. Additionally, EPA will continue to work with States to ensure that all CWSRF programs meet the mandated requirement to use at most 100% of FY 2010 appropriated funds for green projects such as green storm water infrastructure, water efficiency projects, energy efficiency projects, and other innovative environmental projects;
?? Develop policies that will facilitate greater collaboration and accelerate the commercialization of cutting-edge technologies that help deliver clean water such as energy self-sufficient waste water treatment;
?? Develop comprehensive approaches, including all of the above actions, to help transform previously degraded urban watersheds into community assets by:
• Linking environmental programs with existing priorities such as economic development;
• Adding environmental components to economic programs in pilot areas
• Facilitating watershed clean-up efforts; and
• ?? Work to ensure the overall sustainability of drinking water and waste water utilities by better incorporating adaptation and mitigation strategies and other cost-efficient infrastructure practices into planning and operations.
CONCLUSION
Without safe watersheds, no part of a community—its ecology, its economy, its health—can thrive. It is at the core of our communities and is crucial to the vitality of our rural areas. Realizing this imperative for safe watersheds, our nation will require the balanced, organized, and thoughtful effort and collaboration of all levels of government. We will make the most of all of the resources and programs available to us.
The best way to bring the Safe Watershed Reform-Act's purpose into reality is for communities to strengthen and expand the national conversation on protecting and maintaining watersheds. Growing partnerships will be helpful in light of national trends in watershed quality and recent environmental disasters.
EPA invites tribes, states, communities, and all Americans to come together for safe watersheds and our national quest to achieve the purpose of the SWR. We can have sustainable communities and watersheds.
CIRCUMSCRIPTION OF JURISDICTION
Shasta County , by M. E. Dittmar, Redding , California .
"The best foundation for communal prosperity is diversity of resource. A diversity of soil and climate assure a variety of agricultural, horticultural and pomological products. A diversity of industrial raw materials and forest resources invites industrial expansion. When a community embraces these, with a superabundance of water for power and irrigation, it offers a combination of advantages, rarely equalled (sic) and never excelled. These are the advantages that Shasta County at the extreme head of the Sacramento Valley possesses.
"In area Shasta is the largest geographical subdivision of the Sacramento River drainage, embracing 4,050 square miles within its borders - the States of Rhode Island and Delaware could be included in this area and leave a surplus of over 750 square miles.
"The increasing importance of irrigation as an aid to intensive agriculture, speeding up the soil, is generally recognized. As compared with dry farming and cereal crops exclusively, intensive agriculture, fruitgrowing (sic) and diversified husbandry, has increased the annual net profit from the soil many fold. In the last analysis, water on the land is as a rule more valuable than the land itself.
"According to official daily gauging records, the average annual run-off, originating within the limits of Shasta County , is 8,100,000 acre feet - a valuable irrigation and power asset.
"Over one-sixth of the potential water-power energy of California exists within the border of Shasta County . The development of cheap and convenient power means industrial development. Water, for power and for irrigation, is the 'open sesame' of Shasta's future.
"To utilize the power, Shasta has industrial raw materials to attract giants of capital and industry. The industrial metals, copper, iron and zinc, already highly developed and of the first magnitude in quantity; cement materials and great beds of fine quality clays; the elements essential for the manufacture of commercial fertilizers, on a scale to supply the greater part of the North American continent with calcium nitrates - destined to entirely supersede the sodium nitrates of Chile; hardwood timber for the manufacture of furniture, and vast forests of commercial pine and fir for the lumberman - containing over 5,250,000,000 feet (board measure) standing commercial timber.
"These resources represent the foundation for an industrial community that cannot be equalled (sic) for diversity, quantity and general advantages, within a like area anywhere in the United States .
In metal mining, Shasta has been in a class by itself, leading all other countries in California for the past eighteen years. The official statistics from 1897 - the year when her great sulphide ore bodies were first exploited - to 1914 (last year estimated) credit the county with a total output of $99,144,777, or an average of over $5,508,000 per year.
"More than two thousand men find employment at good wages, all the year round, in this great industry, and approximately $3,000,000 per annum are paid out within the borders of the county for wages and supplies.
"The great industrial metal, copper, is next to iron in importance, in the work of the world. In the past eighteen years Shasta has produced 488,211,278 pounds of this metal.
"To Shasta County is due the credit of the first important development on the Pacific Coast , in the production of iron ore, and the manufacture of pigiron by means of the electric furnace.
"The electric furnaces at Heroult have also been utilized in the manufacture of ferro-manganese, for the steel plants of the eastern portion of the United States . Here are grouped the iron ores, the elements essential in the manufacture of special steel, and a million horsepower of potential energy - the basis for the upbuilding of another Pittsburgh.
"In emphasizing the industrial present and future of Shasta County, we wish to make its importance apparent from the 'home market' viewpoint, with thousands of consumers finding remunerative and continuous occupation the producer has an advantage not frequently enjoyed, and this is particularly true where intensive cultivation is practiced, on smaller land holdings.
Deciduous fruit is grown on an extensive scale in the lower valleys and foothills. The culture of the prune is predominant, with peaches and pears a close second.
"The olive, one of the most stable orchard products, has demonstrated its superiority in Shasta County . Hundreds of contiguous acres are now planted to olive groves, and one of the largest groves in the State, containing 120 acres, planted more than twenty years ago, is also one of the most prolific in the State.
"The vine, in these higher but still semi-tropic latitudes, during the long sunny summer days, stores larger percentages of sugar in the grape - an advantage that will appeal to the viticulturist.
"No climatic reason exists why oranges should not be grown successfully, as the isothermal zone of the Central California valleys extends to the vicinity of Redding . Trees a score of years old or more, planted chiefly for ornamental purposes, attest the feasibility of citrus culture.
"Cereals of all kinds are grown in the main valley - especially in the Church Creek Bottoms - and in the mountain valleys of northeastern Shasta. A greater area is being devoted from year to year, to alfalfa, with the increase of irrigation - although three crops are usually cut without irrigation - and dairying and stock-raising are on the increase.
"The stock-grower, except where stock is wintered in the higher altitudes, does little winter feeding, utilizing instead a combination of summer and winter range, made possibly by the varying altitudes and the vast acreage of public domain in the forest reserves.
" Shasta County contains a number of thriving cities and towns. Redding is the county seat, a beautifully located city of about four thousand people (circa 1915), at the extreme head of the Sacramento Valley , where mountain and vale meet. It is the natural distributing center for a large area of Northern California, the center of industrial development, with large and prosperous business houses, excellent hotels, etc., up-to-date schools including the Shasta County high school, churches of various denominations, and all the more prominent fraternal organizations.
"The thriving towns of Anderson and Cottonwood are the chief fruit centers of Shasta, and thousands of tons of fruit, as well as agricultural products and livestock, are shipped annually from these points.
"Kennett is the center of smelting activity, and is an important industrial city of over two thousand people.
"Other towns of importance are Fall River and McArthur, in northeastern Shasta; Castella, La Moine and Delta, in the Sacramento Canyon ; De Lamar, French Gulch, the old pioneer county seat of Shasta, Coram and Keswick, in the mining districts; Millville and Ono represent smaller agricultural and stock-raising communities.
"The County is traversed by many good roads, and the streams are bridged with creditable permanent structures. The California State Highway is under construction, through the heart of Shasta, and State Highway laterals, into Trinity County to the west, connecting with the main trunk road at Redding , have been provided for.
"Shasta has excellent main line railroad facilities, with expansion in feeders and other main line construction assured in the near future.
"The beautiful in nature is blended with the utilitarian, in Shasta County . In the Shasta Canyon , enchanting vistas of Mount Shasta and the stately domes and spires of the Castle Crags offer an ever-changing panorama of indescribable grandeur, through verdant mountain recesses cut by the crystal river.
"The beautiful McCloud in all its pristine glory, where the gamey trout abounds, and the timid doe or stately buck emerges from their leafy lanes along the river's brink or mountain glades. The rugged gorges of the Pit, where masjesty (sic) and power impress the visitor. Beautiful Burney, the misty mistic (sic) falls that tumble over lava cliffs a hundred feet and more, to greet the onrush of the river - all these inspire.
"But nature, not content with her lavish bestowal of the majestic and beautiful, assays a new wonder - the awe-inspiring eruption of Mount Lassen . In a region of fantastic natural features, the mountain long quiescent now holds the center of the stage. Unique, as the only active crater in continental United States - remote from centers of population, that the release of its pent-up energies may fall harmless - it presents a spectacular climax in its periodical eruptions, forcing a mighty column of steam and volcanic ejecta, two miles and more in the air. This is Shasta's exclusive wonder, though visible for a hundred miles, and Congress recognizes its attractive powers by proposing to establish here the Lassen Volcanic National Park . The Lassen Trail Highway to Manzanita Lake , five miles from the crater summit, presents a route of easy access for the automobilist. The nature lover will find the lure of Shasta's natural wonders an inspirational revelation.
"The development of the manifold resources of Shasta County assures her a great future -
"The door of opportunity stands ajar.
Industrial opportunity for capital.
Land at reasonable prices for the home-seeker.
Delightful climate, and magnificent scenery.
The foundation of prosperity is secure.
"(Note. - For more detailed information, send for booklet on Shasta County , California , free, address Shasta County Promotion and Development Association, Redding , California . Or during the Fair at Shasta headquarters, California State Palace , P.P.I.E.)"
Shasta County Mineral Industry (circa 1919) – Excerpt from California Mineral Production for 1919, Bulletin No. 88 , by Walter W. Bradley, California State Mining Bureau, 1920, pp. 165.
Area: 3,858.
Population: 13,311 (1920 census)
Location: North-central portion of state.
" Shasta County stood eleventh in California among the mineral-producing counties for 1919, with an output valued at $2,912,718, as compared with the 1918 production worth $8,098,671. The marked decrease both in 1918 and 1919 was due to the falling off in the output of copper, the large plants of the Mammoth and Mountain copper companies being shut down most of the year. Not taking petroleum into account, Shasta for a number of years lead (sic) all of the counties by a wide margin; but in 1919 was passed by San Bernardino , Yuba, Amador, and Nevada among the 'metal' counties.
"Shasta's mineral resources include: Asbestos, barytes, brick, chromite, coal, copper, gold, iron, lead, lime, limestone, mineral water, molybdenum, pyrite, silver, soapstone, miscellaneous stone, and zinc.
"Lassen Peak is located in southeastern Shasta County
"Commercial production for 1919 was as follows:
(Headings for the information below are: Substance, Amount, and Value.)
Copper, 8,673,342 lbs., $1,613,242
Gold, ---, $425,000 (estimated)
Lime and limestone, ---, $29,100
Platinum, 121 oz., $21,075
Pyrite, 138,046 tons, $497,398
Silver,---, $155,000 (estimated)
Stone, miscellaneous, ---, $31,750
Other minerals,* ---, $40,153
(Total value) $2,912,718
(* Includes barytes, brick, iron ore, lead, mineral water, and zinc.)
U.S. EPA - Region IX
75 Hawthorne Street - H-6-2
San Francisco, CA 94105
Dear Mr. Sugarek,
We are writing as natural resource trustees concerning two issues
involving Iron Mountain Mine, Shasta County, California. First,
with regard to the draft Record of Decision, as we noted in our
comments on the draft plan, we agree with the selection of
treatment for an interim remedial action. By selection of
alternative Pl-B, the High Density Sludge Process, EPA is selecting
an alternative to produce maximum reduction of waste volume. If
the HDS plant is designed to provide capacity to treat sustained
elevated flows, concerns regarding the ability of the selected
alternative to respond to emergency high flow levels are met.
Secondly, we are aware that ICI Americas has indicated by letter
that they believe that Judge Schwartz's September 21, 1992 ruling
in United States of America v. Iron Mountain Mines. Inc.. et al.
makes EPA Administrative Order No. 92-96 invalid.Naturally, we
are concerned, as the sixth year of drought has made this a
critical year for survival of the Federally threatened winter-run
Chinook salmon. As the species may not survive the impact of
untreated discharge through the season, we are supportive of EPA's
intent to implement the requirements of the administrative orders
utilizing Superfund, with cost recovery later.
If you wish to meet with the natural resource trustees for Iron
Mountain Mine concerning our comments, please contact me at (415)
744-4090.
Sincerel
William C. Allan
Regional Environmental Assistant
Concur:
Denise Klimas
National Oceanic and Atmospheric Administration
September 7, 1993
Mr. Rick Sugarek (H-6-2)
U.S. Environmental Protection Agency
Region DC
75 Hawthorne Street
San Francisco, CA 94105
Subject: Review of the Iron Mountain Mine Old/No. 8 Mine Operable Unit Draft Record of
Decision.
Dear Mr. Sugarek:
The Natural Resources Trustee Council for the Iron Mountain Mine Superfund site, comprised of
the National Oceanic and Atmospheric Administration, the National Marine Fisheries Service, the
Department of Interior Office of Environmental Affairs, the U.S. Fish and Wildlife Service, the
U.S. Bureau of Reclamation, and the California Department of Fish and Game, has reviewed the
August 6,1993 Agency Review Draft Record of Decision (ROD) for the Old/No. 8 Seep at Iron
Mountain Mine (IMM). The Natural Resources Trustees previously commented on the agency
review draft of the Remedial Investigation/Feasibility Study for the Operable Unit The alternative
selected in the ROD is consistent with the treatment alternative recommended by the Natural
Resource Trustee Council in the April 8,1993 letter. However, we believe that the details on the
amount of contamination that is collected for treatment is not consistent with our earlier
recommendation. We also have some comments on the details of implementing the selected
alternative and some comments on technical discussions contained in the document
The Operable Unit is defined as the Old and No. 8 Mines. We believe that because these mines are
buried by tens of feet of loosely consolidated landslide material, there is more contamination
coming from the mines than is accounted for by the most obvious seep that is the focus of the
remedial action. The ROD should disclose how the releases from this buried, leaking, flooded ore
body travel through several known or potential migration routes to surface waters. The amount of
contamination from the source (Old/No. 8 Mine Operable Unit) that will be treated by remedial
action will depend upon the efficiency of die collection system for the discharge from the buried
mines. We recommend developing the most effective design possible for collecting acid mine
discharge (AMD) from the buried and flooded mine workings.
We believe that maximizing the collection of the contaminants from this flooded mine pool
(Operable Unit) is consistent with the National Contingency Plan (NCP). Reducing the
contamination better satisfies the evaluation criteria, including protection of the environment, longand
short-term effectiveness, and compliance with Applicable or Relevant and Appropriate
Requirements.
Specific Comments:
Page 2,2nd Paragraph, 1st Sentence: The subject seeps are emerging from the north slope of
Slickrock Valley or the south facing slope of Iron Mountain.
Page 2,3rd Paragraph: The ROD correctly describes the Sacramento River winter-run Chinook
salmon as listed Threatened by the National Marine Fisheries Service under the Federal
Endangered Species Act; you should include also that the species has been listed as Endangered by
the State of California, under the California Endangered Species Act
Page 2, Paragraph 5, Second Sentence: The diversion of upper Spring Creek is into Flat Creek
and is not in the Boulder Creek drainage.
Page 18,2nd Paragraph: This discussion should disclose that contamination from the Old/No. 8
Mine workings Operable Unit has many known and potential migration routes to the surface water
in the Slicfcrpck Creek drainage. We believe this is the case, considering the fact that the releases
from this mine pool must first flow through several tens of feet of loosely consolidated landslide
material before reaching the surface. After AMD from the flooded mine pool emerges through the
buried mine portal, it can diffuse throughout the landslide formation. There is evidence that seeps
down-gradient from the main identified seep have a chemical characteristic and flow pattern similai
to the main seep, indicating a common source (Old/No. 8 Mine Operable Unit).
We believe that the selected remedy for this Operable Unit should be designed to abate as much of
the contamination originating from this source that is possible. It appears that the site would lend
itself to designs that would pass the implementability evaluation criteria in the NCP. It would be
most prudent to establish collection systems at an elevation at least as deep as the buried mine
Is.
Page 19,1st Paragraph, 2nd Sentence: The fish toxicity should be described as acute, toxicity,
rather than just toxicity, because chronic toxicity levels are much lower than the values specified
here. Acute toxicity also occurs at concentrations lower than those specified in this discussion,
especially if the concentrations referred to are in the form of dissolved metals.
Page 21,4th Paragraph, 3rd Sentence: Fishery data in this discussion is outdated. During and
prior to the recent, extended drought, the salmon and steelhead were undergoing a decline that at
that time produced a population that was only SO percent the size of the earlier populations. The
drought greatly accelerated this ongoing decline, producing escapements of salmon in the upper
Sacramento River during the 1990's that are now only 20 percent of the levels observed during th<
late 1950's.
Page 22,1st Paragraph, 3rd Sentence: The flood control releases from Shasta Reservoir describe
here should be qualified as high volume flood control releases. This qualification will avoid
confusion with other flood control operations at Shasta Dam that produce a very low volume
release to prevent compounding ongoing flooding of downstream areas in the Central Valley. Thi
low volume release operation has produced catastrophic fish kills in the past, because it does not
encourage downstream migration and reduces dilution of toxicant.
Page 22,2nd Paragraph, 1st Sentence: Spring-run Chinook and early spawning fall-run chuiook
have also exhibited this pattern of concentrating spawning activity in the cooler uppermost river
reaches that are more susceptible to metal toxicity.
Page 22,3rd Paragraph: The risk to resident trout and steelhead is overall less than that for saline
due to the fact that the sensitive early life stages of trout and steelhead are predominantly located u
tributaries to the Sacramento River that do not receive the toxicant
Page 31,1st Paragraph, 1st Sentence: The concept for collection of AMD at the Old/No. 8 Seep i
intended to provide both surface and underground interception of the flows. We believe it is
important to collect the AMD emanating from these ore bodies to the maximum extent
possible, in order to comply with the nine evaluation criteria specified by the National
Contingency Plan (40 CFR §300.430 (e)(9)). See also above comment concerning Page 18,2nd
Paragraph.
Page 52,1st Paragraph, last sentence: The Natural Resource Trustees have previously commented
on the failure of a mine plugging program similar to that described in this section. One of the
greatest risks to biological resources in general, and the ESA listed winter-run chinook salmon in
particular, is the likelihood that contaminants from the leaking mine pool would be released in a
manner that would be uncollectible or only fractionally collectable for treatment. This, in our
opinion, represents a severe risk. This risk should be included in this discussion.
If you have any questions regarding these comments, please contact one of the following:
1) Ms. Patricia Port, Office of Environmental Affairs, U.S. Department of the Interior, San
Francisco, CA (415) 744-4090
2) Ms. Denise Klimas, National Oceanic and Atmospheric Administration, San Francisco CA
(415)744-3126
3) Mr. Roger Wolcott, National Marine Fisheries Service, Santa Rosa, CA (707) 578-7513
4) Mr. Jim Haas, U.S. Fish and Wildlife Service, Sacramento, CA (916) 978-4866
5) Ms. Kris Doebbler, U.S. Bureau of Reclamation, Sacramento, CA (916) 978-5046
6) Mr. Richard Elliott, Regional Manager, California Department of Fish and Game, Redding,
CA (916) 225-2364
Sincerely,
DEPARTMENT OF
Environmental Officer
ce of Environjoental Affairs
600 Harrison Street, Suite 515
San Francisco, CA 94107-1373
NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION
BY: fli.
nise M. Klimas, Coastal Resources Coordinator
National Oceanic and Atmospheric Administration
Hazardous Materials Response and Assessment Division
75 Hawthorne Street (H-l-2)
San Francisco, CA 94105
September 30, 1992
Mr. J«ffery Zelikson, Director
Hazardous Waste Management Division
U.S. Environmental Protection Agency
Mail Code Hi
75 Hawthorne poulevard
San Francisco, California 94105
Dear Mr. .eliKson:
The Department of Fish and Game has reviewed the draft
Record of Decision for the Iron Mountain Mine Super fund Si to.
This site has a long history of damaging some of the State's most
important fishery and water resources. The Chinook salmon
spawning area in the upper Sacramento River (above the confluence
with the Feather River) currently supports the most valuable
salmon fishery in the State. The Iron Mountain Mine Superfund
Site impacts the most valuable portion of this salmon spawning
area as well as other important biological resources.
We support the decision to install a proven treatment
technology on the portal effluent without flooding the mine pool
and the cleanup of selected pyrite bearing waste piles. We
believe that it is important to avoid flooding the mine pool when
the water and fishery resources are in such critically poor
condition and other remedial actions require completion. The
performance of the plug and flood alternative is uncertain and
there is a risk that the mine pool fluids will leak out where
they cannot be immediately collected and treated.
In the future the treatment remedy may be replaced by
another source control technology or a resource recovery action.
We understand that the Environmental Protection Agency (EPA) will
evaluate alternative replacement technologies using a new
feasibility study and record of decision process along with
endangered species consultation. Prior to implementing
replacement remedies that have higher risk, we recommend EPA
consider not replacing proven technologies with higher risk
alternatives until the drought conditions end, Shasta Reservoir
storage returns to normal, declines of the salmon stocks are
reversed, salmon fishery restrictions return to normal and the
other necessary remedial actions are completed at the site.
We would like to thank you for selecting a reliable remedy
for this complex site. We look forword to working with your
staff on the remaining necessary remedial actions at the site,
3EF-Z0-139" '39:37 PRCH 3FG "irEER -PfiVEST ' -Q
Mr. Jeffery fcelikson
September 30, lyy^j
Pag* Two
including discharges to Slickrock Creek, mobilization of metal
sludge from Keswick Reservoir to the river and the final diluti
manipulation system for operating the Spring Ci«eK Reservoir.
Sincerely,
Turner< Acting Chief
Ivironmental Services Division
cc: E. C. Fvllerton, Regional Director
National Marina Fisheries Services
Long Beach, California
Mr. Don Dievert
Department of Toxic Substances
Rancho Cordova, California
Mr. Jim Pedri
Central Valley Regional Water
Quality Control Board
Redding, California
Ms. Sarah Russell
California Attorney General's Office
Oakland. California
Mr. Rick sugarek
U.S. Environmental Protection Agency
San Francisco, California
September 30, 1992
Mr. David B. Jones
U.S. Environmental Protection Agency
Region IX
75 Hawthorne Street
San Francisco, California 94105
IRON MOUNTAIN MINE SUPERFUND SITE, COMMENTS ON DRAFT RECORD OF
DECISION
Dear Mr. Jones:
Thank you for providing us with a copy of the Draft Record
of Decision ("DROD") for the Boulder Creek Operable Unit of the
Iron Mountain Mine Superfund Site.
After our review of the document and telephone
communications between the Department of Toxic Subetancee Control
(DTSC) and the U.S. Environmental Protection Agency (EPA) staff,
we understand that the ROD will reflect the following:
1. The State does not consider AMD to be exempt from the
California Hazardous Waste Control Laws, Chapter 6.5,
California Health and Safety Code Section 25100 et. seq.
The State acknowledges that treatment of AMD and disposal of
the resultant sludge may be subject to a variance pursuant
to California Health and Safety Code Section 25143.
2. The scope of the expected "final" remedial alternatives for
the Boulder Creek operable Unit will be based upon further
investigations of waste rock piles, creek sediments, seeps
and the feasibility of source control or resource recovery
at the Richmond Mine workings.
3. The proposed CERCLA section 121 (d) (4) (A) waiver of
compliance with the Regional Boards's Basin Plan Water
Quality Objectives will not be invoked for discharges to
Flat Creek.
Based on the above modifications of the DROD, we conclude
that the DROD is acceptable. We look forward to working together
with EPA in the development of the remedial design parameters for
the Boulder Creek Operable Unit, and the implementation of future
actions at the site.
Mr. David B. Jones
:mh*r 30, 1992
If you have any questions concerning this letter or if we
can assist you in any way, please contact Ouncan Austin at
(916) 855-7861.
Sincerely,
Anthony J. Landis, P.E., Chief James C. Pedri, P.E.
Site Mitigation Branch Supervising Engineer
Department of Toxic Substances Regional Water Quality Contrc
Control Board
cc: Mr. Rick SugareJc
U.S. Environmental Protection Agency
Region IX
75 Hawthorne Street
San Francisco, California 94105
Mr. Ramon Perez
Department of Toxic substances Control
P.O. Box 806
Sacramento, California 95812-0806
Mr. Gary Stacey
California Department of Fish and Game
601 Locust Street
Redding, California 96001
M«. Lisa TranJcley-sato
Department of Justice
1515 K Street, Suite 260
Sacramento, California 95814
It is the intent of the Legislature to do all of the following:
(a) Establish a program to provide for response authority for releases of hazardous substances, including spills and hazardous waste disposal sites that pose a threat to the public health or the environment.
(b) Compensate persons, under certain circumstances, for out-of-pocket medical expenses and lost wages or business income resulting from injuries proximately caused by exposure to releases of hazardous substances.
(c) Make available adequate funds in order to permit the State of California to assure payment of its 10-percent share of the costs mandated pursuant to Section 104(c)(3) of the federal act (42 U.S.C. Sec. 9604(c)(3)).
"Federal act" means the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, as amended (42 U.S.C. Sec. 9601 et seq.).
"Hazardous substance" means:
(a) Any substance designated pursuant to Section 1321 (b)(2)(A) of Title 33 of the United States Code.
(b) Any element, compound, mixture, solution, or substance designated pursuant to Section 102 of the federal act (42 U.S.C. Sec. 9602).
(c) Any hazardous waste having the characteristics identified under or listed pursuant to Section 6921 of Title 42 of the United States Code, but not including any waste the regulation of which under the Solid Waste Disposal Act (42 U.S.C. Sec. 6901 et seq.) has been suspended by act of Congress.
(d) Any toxic pollutant listed under Section 1317 (a) of Title 33 of the United States Code.
(e) Any hazardous air pollutant listed under Section 7412 of Title 42 of the United States Code.
(f) Any imminently hazardous chemical substance or mixture with respect to which the Administrator of the United States Environmental Protection Agency has taken action pursuant to Section 2606 of Title 15 of the United States Code.
(g) Any hazardous waste or extremely hazardous waste as defined by Sections 25117 and 25115, respectively, unless expressly excluded.
"Hazardous substance" does not include:
(a) Petroleum, including crude oil or any fraction thereof which is not otherwise specifically listed or designated as a hazardous substance in subdivisions (a) to (f), inclusive, of Section 25316, and natural gas, natural gas liquids, liquefied natural gas, or synthetic gas usable for fuel (or mixtures of natural gas and such synthetic gas), or the ash produced by a resource recovery facility utilizing a municipal solid waste stream.
(b) Nontoxic, nonflammable, noncorrosive stormwater runoff drained from underground vaults, chambers, or manholes into gutters or storm sewers.
"Operation and maintenance" means those activities initiated or continued at a hazardous substance release site following completion of a response action that are deemed necessary by the department or regional board in order to protect public health or safety or the environment, to maintain the effectiveness of the response action at the site, or to achieve or maintain the response action standards and objectives established by the final remedial action plan or final removal action work plan applicable to the site.
"Release" does not include any of the following:
(a) Any release that results in exposure to persons solely within a workplace, with respect to a claim those exposed persons may assert against their employer.
(b) Emissions from the engine exhaust of a motor vehicle, rolling stock, aircraft, vessel, or pipeline pumping station engine.
(c) Release of source, byproduct, or special nuclear material from a nuclear incident, as those terms are defined in the Atomic Energy Act of 1954 (42 U.S.C. Sec. 2011, et seq.), if such release is subject to requirements with respect to financial protection established by the Nuclear Regulatory Commission under Section 2210 of Title 42 of the United States Code or, for the purposes of Section 104 of the federal act (42 U.S.C. Sec. 9604) or any other response action, any release of source byproduct, or special nuclear material from any processing site designated under Section 7912(a)(1) or 7942(a) of Title 42 of the United States Code, which sections are a part of the Uranium Mill Tailings Radiation Control Act of 1978.
(d) The normal application of fertilizer, plant growth regulants, and pesticides.
"Remedy" or "remedial action" includes all of the following:
(a) Those actions that are consistent with a permanent remedy, that are taken instead of, or in addition to, removal actions in the event of a release or threatened release of a hazardous substance into the environment, as further defined by Section 101(24) of the federal act (42 U.S.C. Sec. 9601(24)), except that any reference in Section 101(24) of the federal act (42 U.S.C. Sec. 9601(24)) to the President, relating to determinations regarding the relocation of residents, businesses, and community facilities shall, for the purposes of this chapter, be deemed to be a reference to the Governor and any other reference in that section to the President shall, for the purposes of this chapter, be deemed a reference to the Governor, or the director, if designated by the Governor.
(b) Those actions that are necessary to monitor, assess, and evaluate a release or a threatened release of a hazardous substance.
(c) Site operation and maintenance.
"Remove" or "removal" includes the cleanup or removal of released hazardous substances from the environment or the taking of other actions as may be necessary to prevent, minimize, or mitigate damage which may otherwise result from a release or threatened release, as further defined by Section 101(23) of the federal act (42 U.S.C. Sec. 9601(23)).
(a) (1) "Responsible party" or "liable person," for the purposes of this chapter, means those persons described in Section 107(a) of the federal act (42 U.S.C. Sec. 9607(a)).
(2) (A) Notwithstanding paragraph (1), but except as provided in subparagraph (B), a person is not a responsible party or liable person, for purposes of this chapter, for the reason that the person has developed or implemented innovative investigative or innovative remedial technology with regard to a release site, if the use of the technology has been approved by the department for the release site and the person would not otherwise be a responsible party or liable person. Upon approval of the use of the technology, the director shall acknowledge, in writing, that, upon proper completion of the innovative investigative or innovative remedial action at the release site, the immunity provided by this subparagraph shall apply to the person.
(B) Subparagraph (A) does not apply in any of the following cases:
(i) Conditions at the release site have deteriorated as a result of the negligence of the person who developed or implemented the innovative investigative or innovative remedial technology.
(ii) The person who developed or implemented the innovative investigative or innovative remedial technology withheld or misrepresented information that was relevant to the potential risks or harms of the technology.
(iii) The person who implemented the innovative investigative or innovative remedial technology did not follow the implementation process approved by the department.
(b) For the purposes of this chapter, the defenses available to a responsible party or liable person shall be those defenses specified in Sections 101(35) and 107(b) of the federal act (42 U.S.C. Secs. 9601(35) and 9607(b)).
(c) Any person who unknowingly transports hazardous waste to a solid waste facility pursuant to the exemption provided in subdivision (e) of Section 25163 shall not be considered a responsible party
(a) (1) "Responsible party" or "liable person," for the purposes of this chapter, means those persons described in Section 107(a) of the federal act (42 U.S.C. Sec. 9607(a)).
(2) (A) Notwithstanding paragraph (1), but except as provided in subparagraph (B), a person is not a responsible party or liable person, for purposes of this chapter, for the reason that the person has developed or implemented innovative investigative or innovative remedial technology with regard to a release site, if the use of the technology has been approved by the department for the release site and the person would not otherwise be a responsible party or liable person. Upon approval of the use of the technology, the director shall acknowledge, in writing, that, upon proper completion of the innovative investigative or innovative remedial action at the release site, the immunity provided by this subparagraph shall apply to the person.
(B) Subparagraph (A) does not apply in any of the following cases:
(i) Conditions at the release site have deteriorated as a result of the negligence of the person who developed or implemented the innovative investigative or innovative remedial technology.
(ii) The person who developed or implemented the innovative investigative or innovative remedial technology withheld or misrepresented information that was relevant to the potential risks or harms of the technology.
(iii) The person who implemented the innovative investigative or innovative remedial technology did not follow the implementation process approved by the department.
(b) For the purposes of this chapter, the defenses available to a responsible party or liable person shall be those defenses specified in Sections 101(35) and 107(b) of the federal act (42 U.S.C. Secs. 9601(35) and 9607(b)).
(c) Any person who unknowingly transports hazardous waste to a solid waste facility pursuant to the exemption provided in subdivision (e) of Section 25163 shall not be considered a responsible party for purposes of this chapter solely because of the act of transporting the waste. Nothing in this subdivision shall affect the liability of this person for his or her negligent acts.
(a)"State account" means the Toxic Substances Control Account established pursuant to Section 25173.6.
(b)Notwithstanding any other provision of this section, any costs incurred and payable from the Hazardous Substance Account, the Hazardous Waste Control Account, or the Site Remediation Account prior to July 1, 2006, to implement this chapter, shall be recoverable from the liable person or persons pursuant to Section 25360 as if the costs were incurred and payable from the state account.
"Federally permitted release" has the same meaning as defined in Section 101 (10) of the federal act (42 U.S.C. Sec. 9601 (10)).
"A release authorized or permitted pursuant to state law" means any release into the environment which is authorized by statute, ordinance, regulation, or rule of any state, regional, or local agency or government or by any specific permit, license, or similar authorization from such an agency, including one of the foregoing, that recognizes a standard industry practice, including variances obtained from the agency which allow operations for facilities during a period of time when releases from the facilities do not conform with relevant statutes, ordinances, regulations, or rules. The term includes a federally permitted release, as defined by Section 25325, and releases that are in accordance with any court order or consent decree.
Funds in the Site Remediation Account appropriated for removal or remedial action pursuant to this chapter are available for encumbrance for three fiscal years subsequent to the fiscal year in which the funds are appropriated and are available for disbursement in liquidation of encumbrances pursuant to Section 16304.1 of the Government Code.
(a)Notwithstanding any other provision of law, the Controller shall establish a separate subaccount in the state account, for any funds received from a settlement agreement or the General Fund for a removal or remedial action to be performed at a specific site.
(b)Notwithstanding Section 13340 of the Government Code, funds deposited in the subaccount for those removal or remedial actions are hereby continuously appropriated to the department, without regard to fiscal years, for removal or remedial action at the specific site, and for administrative costs associated with the removal or remedial action at the specific site.
(c)Notwithstanding any other provision of law, money in the subaccount for those removal or remedial actions shall not revert to the General Fund or be transferred to any other fund or account in the State Treasury, except for purposes of investment as provided in Article 4 (commencing with Section 16470) of Chapter 3 of Part 2 of Division 4 of Title 2 of the Government Code.
(d)Notwithstanding Section 16305.7 of the Government Code, all interest or other increment resulting from investment of the funds specified in subdivision (a) pursuant to Article 4 (commencing with Section 16470) of Chapter 3 of Part 2 of Division 4 of Title 2 of the Government Code shall be deposited in the subaccount for removal or remedial action at the specific sites.
(e)At the conclusion of all removal or remedial actions at the specific site, any unexpended funds in any subaccounts established pursuant to this section shall be transferred to the subaccount for site operation and maintenance established pursuant to Section 25330.5, if necessary, for those activities at the site, or, if not needed for site operation and maintenance at the site, to the Toxic Substances Control Account.
(f)(1)There is hereby created a subaccount in the state account as the successor fund to the Stringfellow Insurance Proceeds Account created pursuant to former Section 25330.6, as that section read on January 1, 2013. All assets, liabilities, and surplus in the Stringfellow Insurance Proceeds Account shall be transferred to, and become a part of, this subaccount for the Stringfellow Superfund Site in Riverside County, as provided in Section 16346 of the Government Code. All appropriations from the Stringfellow Insurance Proceeds Account, to the extent encumbered, shall continue to be available from the subaccount for expenditure for the same purposes and periods.
(2)This subdivision shall become operative on July 1, 2013.
(a) The Controller shall establish a separate subaccount for site operation and maintenance in the state account. All of the following amounts shall be deposited in the subaccount:
(1) Funds received from responsible parties for site operation and maintenance.
(2) Funds received from the federal government pursuant to the federal act for site operation and maintenance.
(3) Funds received from cities, counties, or any other state or local agency for site operation and maintenance.
(4) Funds appropriated from the state account by the Legislature for site operation and maintenance.
(b) Notwithstanding Section 13340 of the Government Code, funds deposited in the subaccount for site operation and maintenance are hereby continuously appropriated to the department, without regard to fiscal years, for site operation and maintenance, and for administrative costs associated with site operation and maintenance.
(c) Notwithstanding any other provision of law, money in the subaccount for site operation and maintenance shall not revert to the General Fund or be transferred to any other fund or account in the State Treasury, except for purposes of investment as provided in Article 4 (commencing with Section 16470) of Chapter 3 of Part 2 of Division 4 of Title 2 of the Government Code.
(d) Notwithstanding Section 16305.7 of the Government Code, all interest or other increment resulting from investment of the funds specified in subdivision (a) pursuant to Article 4 (commencing with Section 16470) of Chapter 3 of Part 2 of Division 4 of Title 2 of the Government Code shall be deposited in the subaccount for site operation and maintenance.
(a)The Stringfellow Insurance Proceeds Account is hereby created in the State Treasury and shall be administered by the director.
(b)The funds deposited in the account are available for expenditure, upon appropriation by the Legislature, for activities related to the Stringfellow Superfund Site in Riverside County, to carry out the 2002 Consent Decree, incorporating the 2002 Memorandum of Understanding and the December 1998 Stringfellow Site Agreement between the state and the participating defendants, as defined in those agreements, to the extent any portion of those agreements remain in force and effect.
(c)Funds in the account appropriated by the Legislature for contract costs for investigation, removal, remedial, or operation and maintenance activities at the Stringfellow Superfund Site are available for encumbrance for three fiscal years, including the fiscal year in which the funds are appropriated, and are available for disbursement in liquidation of encumbrances pursuant to Section 16304.1 of the Government Code.
(d)Any requirement that insurance proceeds recovered by the state in connection with the Stringfellow Superfund Site be deposited in the account and distributed under the terms of the 1998 Site Agreement, is hereby declared null and void, in accordance with the 2002 Consent Decree specified in subdivision (b).
(e)This section shall become inoperative on July 1, 2013, and, as of January 1, 2014, is repealed, unless a later enacted statute, that becomes operative on or before January 1, 2014, deletes or extends the dates on which it becomes inoperative and is repealed.
The state account may sue and be sued in its own name.
(a) The department shall report to the Governor and the Legislature on the progress of the cleanup of the San Gabriel Valley groundwater sites in Los Angeles County, and on the progress of enforcement actions relating to those sites, in the biennial report specified in Section 25178. The report shall include, but not be limited to, all of the following:
(1) State expenditures and planned expenditures.
(2) Actions accomplished at the sites.
(3) Actions planned, including a time schedule for the accomplishment of planned actions.
(b) The report may be prepared in cooperation with other state and federal agencies involved with the sites, and shall include a summary of the activities of those additional agencies.
(a) There is in the General Fund the Site Remediation Account, which shall be administered by the director. The account shall be funded by money transferred from the state account, upon appropriation by the Legislature. Consistent with the requirements of Section 114(c) of the federal act (42 U.S.C. Sec. 9614(c)), the moneys in the account may be expended by the department, upon appropriation by the Legislature, for direct site remediation costs.
(b) (1) For purposes of this section, "direct site remediation costs" means payments to contractors for investigations, characterizations, removal, remediation, or long-term operation and maintenance at sites contaminated or suspected of contamination by hazardous materials, where those actions are authorized pursuant to this chapter.
(2) "Direct site remediation costs" also means the state-mandated share pursuant to Section 104(c)(3) of the federal act (42 U.S.C. Sec. 9604(c)(3)).
(3) "Direct site remediation costs" does not include the department's administrative expenses or the department's expenses for staff to perform oversight of investigations, characterizations, removals, remediations, or long-term operation and maintenance.
Notwithstanding Section 25355.5, the department shall carry out a program of full-scale demonstrations to evaluate treatment technologies that can be safely utilized for removal and remedial actions to hazardous substance releases.
For the purposes of this article, the following definitions apply:
(a) "Treatment technologies" means methods, techniques, or processes, including proprietary or patented methods, that permanently alter the composition of hazardous substances at hazardous substance release sites through chemical, biological, or physical means so as to make the substances nonhazardous or to significantly reduce the toxicity, mobility, or volume, or any combination thereof, of the hazardous substances or contaminated materials being treated.
(b) "Full-scale demonstration" means a demonstration of a technology that is of a size or capacity which permits valid comparison of the technology to the technical performance and cost of conventional technologies, that is likely to be cost-effective, and that will result in a substantial or complete remedial or removal action to a hazardous substance release site.
The department shall select technology demonstration projects to be evaluated pursuant to this article using criteria that include, at a minimum, all of the following requirements:
(a)The project proposal includes complete and adequate documentation of technical feasibility.
(b)The project proposal includes evidence that a technology has been sufficiently developed for full-scale demonstration and can likely operate on a cost-effective basis.
(c)The department has determined that a site is available and suitable for demonstrating the technology or technologies, taking into account the physical, biological, chemical, and geological characteristics of the site, the extent and type of contamination found at the site, and the capability to conduct demonstration projects in a manner to ensure the protection of human health and the environment.
(d)The technology to be demonstrated preferably has widespread applicability in removal and remedial actions at other sites in the state.
(e)The project will be developed to the extent that a successful demonstration on a hazardous substance release site may lead to commercial utilization by responsible parties at other sites in the state.
(f)The department has determined that adequate funding is available from one or more of the following sources:
(1)Responsible parties.
(2)The Environmental Protection Agency.
(3)The state account.
V. EPA'S JUNE 1994 PROPOSED PLAN
In a Proposed Plan issued in June 1994, EPA proposed to enlarge the SCDD to establish a
15,000-acre-foot reservoir and to defer implementation of the SFSC diversion. Enlargement
of the SCDD and construction of the SFSC were both components of the 1986 ROD. The
1986 ROD had deferred sizing of the reservoir. At the of the June 1994 Proposed Plan, it
was EPA's assessment that source control and treatment alternatives were not available that
could provide sufficient control of the IMM area source AMD discharges to meet remedial
action objectives for the Site. The EPA had determined that the proposed enlargement of the
ROD4DEC.DOC
SCDD would provide sufficient water management capability to meet certain remedial action
objectives for the Site, considering the extent of technical practicability limitations. The EPA
received comments during the public comment period that identified additional source control
and treatment alternatives for the IMM area source AMD discharges. The comments
supported the technical feasibility of the source control and treatment approaches. Commenters
also stated a preference for source control and treatment approaches over water
management remedial alternatives. Taking into account these comments, the EPA deferred
remedy selection and performed further studies of the suggested source control and treatment
alternatives.
VI. DESCRIPTION OF THE SELECTED REMEDY
The selected interim remedial action is the fourth ROD for the IMM Superfund cleanup
action. It focuses on the Slickrock Creek area source AMD discharges. The selected remedy,
which is the same remedy EPA proposed in its May 1996 Proposed Plan, was largely derived
from an alternative developed by a potentially responsible party and submitted to EPA during
the public comment period on the 1994 Proposed Plan. The selected remedy addresses the
principal threat posed by contaminant releases from area sources within the Slickrock Creek
watershed at the IMM Site through collection, conveyance, and treatment of all of the flows
in the most contaminated reach of Slickrock Creek, located directly downstream of the most
heavily disturbed mining area in the basin. The selected remedy will involve constructing a
dam to establish a small reservoir in Slickrock Creek to collect and contain the contaminated
runoff for controlled conveyance to an expanded IMM HDS treatment plant. The selected
remedy also involves constructing a surface water diversion to keep relatively
uncontaminated surface water from flowing into the reservoir. The diversion will minimize
the amount of water that requires treatment and the size of the dam required to ensure
adequate storage capacity of the containment reservoir. New and modified pipelines will
convey the contaminated water from the reservoir to the treatment plant. Necessary
modifications to the IMM HDS treatment plant will be constructed. A conceptual depiction
of the remedy is shown in Photo Exhibit 2.
The major components of the selected remedy include:
Construct a retention dam and necessary surface water diversion facilities to ensure the
collection and storage of contaminated surface runoff, interflow, and groundwater in the
Slickrock Creek watershed at IMM.
Construct facilities to provide controlled release of contaminated waters from the
retention dam to the AMD conveyance pipeline to the IMM HDS/ASM lime
neutralization treatment plant.
Construct facilities to divert relatively uncontaminated surface water from the area
upstream from the highly disturbed mining area of the Slickrock Creek basin and divert
that water around the Slickrock Creek retention reservoir. The diversion shall also divert
around the retention reservoir the water from the unmined side of the Slickrock Creek
watershed.
ROD4DEC.DOC
Take appropriate steps (including consideration of emergency failure scenarios) to
integrate into the operation of the reservoir the collection and conveyance of the Old/No.
8 Mine Seep AMD to the IMM HDS/ASM lime neutralization treatment plant.
Construct a hematite erosion control structure consistent with California mining waste
requirements.
Construct one or more sedimentation basin(s) or other EPA approved control structures in
the Slickrock Creek watershed to minimize sedimentation of the Slickrock Creek
retention reservoir and to ensure proper functioning of the controlled release facilities.
Upgrade the hydraulic capacity of the existing pipeline (or if necessary construct a new
pipeline) from Slickrock Creek to the Boulder Creek crossing as required to ensure
adequate reliable capacity to convey Slickrock Creek and Old/No. 8 Mine Seep AMD.
Construct an additional pipeline to reliably convey Slickrock Creek and Old/No. 8 Mine
Seep AMD from the Boulder Creek Crossing to the IMM HDS/ASM lime neutralization
treatment plant.
• Modify the IMM HDS/ASM lime neutralization treatment plant to ensure proper
treatment, using the HDS/ASM treatment process, of the Slickrock Creek area source
AMD discharges in conjunction with AMD flows collected pursuant to other Records of
Decision.
Construct a tunnel to provide for gravity discharge of the high volumes of effluent from
the IMM HDS/ASM treatment plant to Spring Creek below the Upper Spring Creek
diversion to Flat Creek.
Construct facilities to assure collection of significant identified sources (including but not
limited to seeps from Brick Flat Pit and the hematite piles) and convey those releases to
the Slickrock Creek Retention Reservoir.
Perform long-term operations and maintenance (O&M) of all components.
VII. STATUTORY DETERMINATIONS
Protective of Human Health and the Environment
With respect to the releases of hazardous substances that will be addressed by this interim
action, this selected interim remedy is protective of-human-health and the environment. The
selected interim remedy essentially eliminates the potential exposure and the resultant threats
to human health and the environment from the Slickrock Creek area sources and the AMD
discharge pathways addressed in this interim remedy. While the interim remedy is expected
to essentially eliminate the risk posed by certain releases of hazardous substances from the
facility, the interim remedy responds to only a subset of the currently uncontrolled releases of
hazardous substances being released from the facility. The EPA therefore anticipates that the
ROD4DEC.DOC
remedy will not fully protect human health and the environment and that additional remedial
action will be required to respond to releases of hazardous substances from the facility.
Compliance with ARARs
Except for those applicable or relevant and appropriate requirements (ARARs) that EPA is
waiving for this interim remedy, the interim remedy will comply with all Federal and State
ARARs.
The EPA is waiving compliance with certain ARARs on the basis that this proposed action is
an interim action that will not respond to all releases of hazardous substances from the
facility. This interim action is not expected to provide for compliance with all ARARs at all
times because the dam and treat interim remedial action for the Slickrock Creek area source
AMD discharges does not address releases other than area sources in the Slickrock Creek
watershed above the containment structure to be constructed on Slickrock Creek, such as
releases from area sources in the Boulder Creek watershed, the existing sediments in SCR
and Keswick Reservoir, and the streambeds in the Spring Creek watershed.
Since the action selected in this ROD is an interim action that leaves some releases of hazardous
substances unabated, EPA is relying on the ARARs waiver for "interim measures"
(CERCLA § 121(d)(4)(A); 40 CFR § 300.430(f)(D(ii)(C)(l)) for this remedial action. In
particular, EPA anticipates that the remedy will improve water quality in Spring Creek, SCR,
Keswick Reservoir, and the Sacramento River, but EPA does not anticipate that this remedy,
in conjunction the other remedies implemented to date, will be sufficient to ensure compliance
with (1) the numeric, chemical-specific standards contained in the State Basin Plan
Standards (SBPS) for copper, cadmium, or zinc, and (2) California Fish and Game Code
§ 5650 (which prohibits discharge of contaminants "deleterious to fish, plant life, or bird
life"). The EPA is therefore waiving compliance with those standards for the interim action
to the extent those standards cannot be achieved by the remedy selected in this ROD in
conjunction with the remedies implemented under prior RODs. The EPA anticipates that
completion of additional remedial actions will address compliance with these ARARs.
Cost-Effectiveness
The EPA has determined that the selected remedy is cost-effective pursuant to evaluations in
accordance with § 300.430(f)(l)(ii)(D) of the NCR
Permanent Solutions and Treatment Technologies
The EPA has determined that the selected remedy represents the maximum extent to which
permanent solutions and treatment technologies can be utilized for the remedial action for the
Slickrock Creek area source AMD discharges. This proposed remedy involves as its principal
element the treatment of hazardous substance releases from the Slickrock Creek area
sources upstream of the retention dam.
The remedy will not reduce the generation of hazardous substances in the same manner that a
remedy that reduces or eliminates AMD-forming reactions (and thereby reduce the need for
ongoing treatment operations). The EPA has concluded that source-specific control actions
may be available for at least some of the Slickrock Creek area source AMD discharges.
However, those control actions are not currently implementable, effective, or cost-effective in
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comparison to the selected dam and treat remedial action. While current technology and
knowledge are not sufficient to permit implementation of reliable source-specific controls for
the Slickrock Creek area sources, EPA encourages the continued development of those alternatives
that could reduce or eliminate the AMD-forming reactions. The EPA will continue to
consider subsequent action for the IMM Site that could supplant the need to perform longterm
treatment of the area source AMD discharges.
Consistency with Final Remedy
This action of selecting a remedial alternative that addresses Slickrock Creek without first
requiring completion of the studies for Boulder Creek is consistent with 40 CFR § 300.430
(a)(ii)(A), which identifies as a program management principle that "[s]ites should generally
be remediated in operable units when necessary or appropriate to achieve significant risk
reduction quickly, when phased analysis and response is necessary or appropriate given the
size and complexity of the Site, or to expedite the completion of total Site cleanup." The
investigations conducted by the EPA to date, including an intensive peer review of control
options, indicate that technically practicable and cost-effective remedies are available to
remediate releases of hazardous substances from Boulder Creek area sources and from
sediments in and below SCR.
This action does not constitute the final remedy for the IMM Site. Additional response
actions will further address the statutory preference for remedies employing treatment that
reduces toxicity, mobility, or volume as a principal element Subsequent actions are planned
to fully address the threats posed by the conditions at the facility. This remedy will result in
hazardous substances remaining onsite above health-based levels, so within 5 years after
commencement of the remedial action, EPA will conduct a review to ensure that the remedy
continues to provide adequate protection of human health and the environment. This is an
interim action ROD, so review of this facility and of this remedy will be ongoing as EPA
continues to develop final remedial alternatives for the Site.
Keith A. Takata, Director - Date 9/30/97
Superfund Division
U.S. Environmental Protection Agency
SITE INSPECTION SUMMARY
IRON MOUNTAIN MINE FIVE-YEAR REVIEW
h. A certificate executed by the Site Operator's Project Manager, with the power to
bind the Site Operator, warranting that, during the billing period, the Site Operator
has performed all of its obligations under this SOW, and a summary in a form
acceptable to the Oversight Agency detailing the costs expended during that period
with respect to the Site and certifying that such sums were actually expended. (pg. 27, statement of work)
6.8 Quality Assurance Project Plan ("QAPP")
1. In general, the Site Operator may, for the development of its own Quality Assurance
Project Plan(s) ("QAPP(s)") rely on the existing QAPPs in use for various projects and
procedures at the Site, to the extent they are applicable and meet the requirements of
this SOW.
2. The Site Operator shall use quality assurance, quality control, and chain-of-custody
procedures for all samples that may be required to be taken under this SOW or O&M
Work Plan in accordance with:
a. EPA Requirements for Quality Assurance Project Plans for Environmental Data
Operation, (EPA QA/R5);
b. Preparing Perfect Project Plans, QAMS-005/80; and (EPA /600/9-88/087); and
c. Subsequent amendments to such guidelines upon notification by the Oversight
Agency to the Site Operator of such amendment. Amended guidelines shall apply
only to procedures conducted after such notification.
3. Prior to the commencement of any monitoring project under this SOW or RA activities
with construction costs exceeding $50,000 (adjusted based on the Inflation Escalator),
the Site Operator shall submit to the Oversight Agency for approval a QAPP that is
consistent with this SOW, the NCP, and applicable guidance documents.
4. If relevant to the proceeding, the Parties agree that validated sampling data generated
in accordance with the QAPP(s) and reviewed and approved by the Oversight Agency
shall be admissible as evidence, without objection, in any proceeding under the Consent
Decree. The Site Operator shall ensure that the Oversight Agency, State personnel, and
their authorized representatives are allowed access at reasonable times to all laboratories
utilized by the Site Operator for analyses.
5. The Site Operator shall ensure that the laboratories it utilizes analyze all samples
submitted by the Oversight Agency pursuant to the QAPP for quality assurance monitoring.
The Site Operator shall ensure that such laboratories perform all analyses
according to accepted EPA methods for the analysis of samples taken pursuant to this
SOW and the Consent Decree.(pg. 28, statement of work)
6.10 Modification of Work Plans
1. The Site Operator is responsible for ensuring that the management plans are current
and reflect the experience gained during plant operation. If, as a result of experience
gained from plant operation, the Site Operator comes to believe that the project Performance
Standards or monitoring procedures should be modified, the Site Operator
may submit a request to the Oversight Agency to approve a change in the standards or
procedures. The request shall contain sufficient information to allow the Oversight
Agency to determine the appropriateness of the requested changes. A decision of the
Oversight Agency regarding modification of Performance Standards pursuant to this
paragraph shall not be subject to Dispute Resolution or judicial review.
6.11 Offsite Shipment
1. All materials removed from the Site shall be disposed of or treated at a facility
approved by the Oversight Agency's Project Manager and in accordance with Section
121(d)(3) of CERCLA, 42 U.S.C. § 9621(d)(3); with the U.S. EPA "Revised Offsite
Policy," OSWER Directive 9834.11, November 13,1987; and with all other applicable
federal (including the U.S. Department of Transportation), State, and local
requirements.(pg. 29, statement of work)
2. The Site Operator shall, prior to any offsite shipment of Waste Material from the Site to
an out-of-state waste management facility, pursuant to the O&M Work Plan developed
pursuant to this SOW or any modification thereto, provide written notification to the
appropriate state environmental official in the receiving facility's state and to the Project
Coordinator of such shipment of Waste Material. However, this notification
requirement shall not apply to any offsite shipments when the total volume of all such
shipments will not exceed 10 cubic yards.
3. The Site Operator shall include in the written notification required by Section 6.11(2) the
following information, where available: (a) the name and location of the facility to
which the Waste Material are to be shipped; (b) the type and quantity of the Waste
Material to be shipped; (c) the expected schedule for the shipment of the Waste
Material; and (d) the method of transportation. The Site Operator shall notify the state
in which the planned receiving facility is located of major changes in the shipment plan,
such as a decision to ship the Waste Material to another facility within the same state, or
to a facility in another state.
4. With respect to shipments to out-of-state facilities, the identity of the receiving facility
and state will be determined by the Site Operator following Oversight Agency approval
of the O&M Work Plan or any modification thereto. The Site Operator shall provide the
information required by Section 6.11(3) at least sixty (60) days prior to planned
shipment of the Waste Material.(pg. 30, statement of work)
7.3 Site Access and Data/Document Availability/
Institutional Controls
1. The Site Operator shall provide the Oversight Agency, the Support Agency, and their
representatives with access at all reasonable times to the Site, or such other property, to(pg. 31, statement of work)
conduct any activity related to this SOW, including but not limited to, the following
activities:
a. Monitoring the Work;
b. Verifying any data or information submitted to the Oversight Agency or the Support
Agency;
c. Conducting investigations relating to contamination at or near the Site;
d. Obtaining samples;
e. Assessing the need for, planning, or implementing additional response actions at or
near the Site;
f. Implementing response activities at the Site;
g. Inspecting and copying records, operating logs, contracts, or other documents
maintained or generated by the Site Operator or its agents, consistent with Section
7.4, Access to Information;
h. Assessing the Site Operator's compliance with the Consent Decree and SOW;
i. Determining whether the Site or other property is being used in a manner that is
prohibited or restricted, or that may need to be prohibited or restricted, by or pursuant
to this SOW;
j. Conducting tests as the Oversight Agency or its authorized representatives or contractors
deem necessary; and
k. Using a camera, sound recording device, or any other documentary type
equipment.
2. Commencing on the date of the Consent Decree, the Site Operator shall refrain from
using the Site, or such other property, in any manner that would interfere with or
adversely affect the integrity or protectiveness of the remedial measures to be implemented
pursuant to the Consent Decree and SOW.
3. If the Site Operator acquires any ownership or other property interest in the Site, or any
other property where access and/or land/water use restrictions are needed to implement
the Consent Decree, the Site Operator shall:
a. Upon acquiring such interest, provide the Oversight Agency, the Support Agency
and their authorized representatives with access at all reasonable times to the Site,
or such other property, for the purpose of conducting any activity related to this
SOW and the Consent Decree including, but not limited to, the activities listed in
Section 7.3(1); and
b. In coordination with the Oversight Agency and the Support Agency, take
appropriate steps to ensure the long-term enforceability of access and institutional
controls with respect to such property, including, but not limited to, appropriate
deed notices and other actions.
4. The Oversight Agency will secure permission for the Site Operator to enter and perform
Work at the property owned by Iron Mountain Mines, Inc., T.W. Arman, the United
States, or the State (if any), including the facilities, plant and equipment located thereon
(and necessary to carry out the actions of this SOW and Consent Decree) for the sole
purpose of permitting the Site Operator to carry out the Work under this SOW and
Consent Decree.
5. To the extent that access and/or land/water use restrictions at property not owned by
the Site Operator and not at the property referenced in Section 7.3(4) are needed to
implement the Consent Decree or this SOW, the Site Operator shall use its best efforts to
secure from persons who own such property, to the extent determined by the Oversight
Agency to be necessary, as applicable:
a. An agreement to provide access thereto for the Site Operator, as well as for the
United States and the State, and their representatives (including contractors), for
the purpose of conducting any activity related to the Consent Decree including, but
not limited to, those activities listed in Section 7.3(1) of this SOW;
b. An agreement, enforceable by the Site Operator, the United States, and the State to
abide by the obligations and restrictions established by Section 7.3(2) of this SOW,
or that are otherwise necessary to implement, ensure non-interference with, or
ensure the protectiveness of the activities to be performed pursuant to the Consent
Decree;
c. The execution and recordation in the Recorder's Office of Shasta County,
California, of an easement, running with the land, that (i) grants a right of access
for the purpose of conducting any activity related to this SOW and the Consent
Decree including, but not limited to, those activities listed in Section 7.3(1) of this
SOW, and (ii) grants the right to enforce the land/water use restrictions that the
Oversight Agency and the Support Agency, as appropriate, determine are necessary
to implement, ensure non-interference with, or ensure the protectiveness of
the activities to be performed pursuant to the Consent Decree or this SOW;
d. The access rights and/or rights to enforce land/water use restrictions shall be
granted to (i) the United States, on behalf of its representatives, (ii) the State and its
representatives, and (iii) other appropriate grantees, as determined by the
Oversight Agency; and
e. If the Oversight Agency so requests, within sixty (60) days of notice from the
Oversight Agency that access is required, the Site Operator shall submit to the
Oversight Agency and the Support Agency, as appropriate, for review and
approval with respect to such property:
i. A draft easement that is enforceable under the laws of the State of California,
free and clear of all prior liens and encumbrances (except as approved by the
Oversight Agency), and acceptable under the Attorney General's Title Regulations
promulgated pursuant to 40.U.S.C. Section 255; and
ii. A current title commitment or report prepared in accordance with the U.S.
Department of Justice Standards for the Preparation of Title Evidence in Land(pg. 36)
Acquisitions by the United States (1970) (the "Standards"). Within fifteen (15)
days of approval by the Oversight Agency and the Support Agency, as
appropriate, and acceptance of the easement, the Site Operator shall update
the title search and, if it is determined that nothing has occurred since the
effective date of the commitment or report to affect the title adversely, the
easement shall be recorded with the Recorder's Office of Shasta County.
Within thirty (30) days of the recording of the easement, the Site Operator
shall provide the Oversight Agency and the Support Agency, as appropriate,
with final title evidence acceptable under the Standards and a certified copy
of the original recorded easement showing the clerk's recording stamps.
6. If any access or land/water use restriction agreements required by Section 7.3(5) of this
SOW are not obtained within the time specified in this SOW, or any access easements or
restrictive easements required by this SOW are not submitted to the Oversight Agency
in draft form within the time specified in this SOW, the Site Operator shall promptly
notify the Oversight Agency and Support Agency in writing and shall include in that
notification a summary of the steps that the Site Operator has taken to attempt to
comply with Section 7.3(5) of this SOW. The United States and the State, as they deem
appropriate, may assist the Site Operator in obtaining access or land/water use
restrictions, either in the form of contractual agreements or in the form of easements
running with the land, or by utilizing appropriate enforcement mechanisms.
7. For purposes of Section 7.3(5) of this SOW only, "best efforts" includes the payment of
reasonable sums of money in consideration of access, access easements, land/water use
restrictions, and/or restrictive easements.
8. Notwithstanding any provision of this SOW, the United States and the State retain all of
their access authorities and rights, as well as all of their rights to require land/water use
restrictions, including enforcement authorities related thereto, under CERCLA, RCRA,
and any other applicable federal or State law, statutes, or regulations.
9. During any future field work conducted by the Oversight Agency or its representatives
to perform Remedial Investigations, Remedial Designs, Remedial Actions, or other
projects, the Site Operator shall cooperate with the Oversight Agency to coordinate Site
operations and to facilitate the activities to be performed by the Oversight Agency or
its representatives. To the extent that the Oversight Agency activities require the use of
water supplies from the existing water tanks (near the treatment plant and near the
Richmond Portal) or other water sources, the Site Operator shall maintain the clean
water delivery systems at no charge to the Oversight Agency, provided that the use of
the clean water systems does not impose an undue impact to those systems. The Oversight
Agency shall have the right to make use of the Site roadways and shall repair the
roadways if damaged by the Oversight Agency activities. If electrical power is required
during the performance of the Oversight Agency activities, the Oversight Agency shall
have the right to use the electrical systems and compensate the Site Operator only for
the power consumption costs for the Oversight Agency activities.(pg. 37)
7.4 Access to Information
1. The Site Operator shall provide to the Oversight Agency and the Support Agency, upon
request, copies of all documents and information within its possession or control or that
of its contractors or agents relating to activities at the Site or to the implementation of
the Consent Decree or this SOW, including, but not limited to, sampling, analysis,
chain-of-custody records, manifests, trucking logs, receipts, reports, sample traffic
routing, correspondence, all operations and operators' logs, or other documents or
information related to the activities required under the Consent Decree and SOW or
previously conducted at the Site. The Site Operator shall also make available to the
Oversight Agency and the Support Agency, their employees, agents, or representatives,
knowledge of relevant facts concerning the performance of the activities required by the
Consent Decree and SOW for purposes of investigation or information gathering.
2. The Site Operator may assert business confidentiality claims covering part or all of the
documents or information submitted to the Oversight Agency and the Support Agency
under this SOW or the Consent Decree to the extent permitted by and in accordance
with Section 104(e)(7) of CERCLA, 42 U.S.C. § 9604(e)(7), and 40 C.F.R. § 2.203(b).
Documents or information determined to be confidential by the Oversight Agency will
be afforded the protection specified in 40 C.F.R. Part 2, Subpart B. If no claim of confidentiality
accompanies documents or information when they are submitted to the
Oversight Agency and the Support Agency, or if the Oversight Agency has notified the
Site Operator that the documents or information are not confidential under the standards
of Section 104(e)(7) of CERCLA, the public may be given access to such documents
or information without further notice to the Site Operator.
3. The Site Operator may assert that certain documents, records, and other information are
privileged under the attorney-client privilege or any other privilege recognized by
federal law. If the Site Operator asserts such a privilege in lieu of providing documents,
the Site Operator shall provide the following: (a) the title of the document, record, or
information; (b) the date of the document, record, or information; (c) the name and title
of the author of the document, record, or information; (d) the name and title of each
addressee and recipient; (e) a description of the contents of the document, record, or
information: and (f) the privilege asserted by the Site Operator. However, no documents,
reports, or other information that are created or generated pursuant to the
specific requirements of the Consent Decree and SOW shall be withheld on the grounds
that they are privileged.
4. No claim of confidentiality shall be made with respect to any data, including but not
limited to, all sampling, analytical, monitoring, hydrogeologic, scientific, chemical, or
engineering data, cost data relating to the Work excepting cost data related to wages,
overhead rates, and profit, or any other documents or information evidencing conditions
at or around the Site.
7.5 Record Preservation
1. Until 10 years after receipt of the Oversight Agency's notification pursuant to Section
7.14, Completion of Work, the Site Operator shall preserve and retain all records and
documents now in its possession or control or that come into its possession or control
that relate in any manner to the performance of activities at the Site, regardless of any
corporate retention policy to the contrary. The Site Operator shall also instruct its subcontractors
and agents to preserve all documents, records, and information of whatever
kind, nature, or description relating to the performance of activities at the Site for a
period of 10 years after the contractor or subcontractor has completed Work under this
SOW. Notwithstanding the requirements of this Section, the Oversight Agency may, at
its discretion, agree to shorten the records retention period or otherwise limit the obligations
of this Section.
2. At the conclusion of the applicable document retention periods specified above, the Site
Operator shall notify the Oversight Agency and the Support Agency at least ninety (90)
days prior to the destruction of any such records or documents and, upon request by
the Oversight Agency and the Support Agency, shall deliver any such records or documents
to the Oversight Agency and the Support Agency. The Site Operator may assert
that certain documents, records, and other information are privileged under the attorney-
client privilege or any other privilege recognized by federal law. If the Site Operator
asserts such a privilege, it shall provide the following: (a) the title of the document,
record, or information; (b) the date of the document, record, or information; (c) the
name and title of the author of the document, record, or information; (d) the name and
title of each addressee and recipient; (e) a description of the subject of the document,
record, or information; and (f) the privilege asserted by the Site Operator. However, no
documents, reports or other information that are created or generated pursuant to the
specific requirements of the Consent Decree and SOW shall be withheld on the grounds
that they are privileged.
7.6 Public Information and Meetings
1. The Site Operator shall cooperate with the Oversight Agency in providing information
regarding the Work to the public.
2. As requested by the Oversight Agency, the Site Operator shall participate in the preparation
of such information for distribution to the public and in public meetings that may
be held or sponsored by the Oversight Agency to explain activities at or relating to the
Site.
7.7 Remedy Review and Future Remedial Action
1. The Site Operator shall provide the Oversight Agency with any information available to
the Site Operator that may assist the Oversight Agency in conducting any studies and
investigations that may be appropriate to permit the Oversight Agency to conduct
reviews of whether the remedial actions set forth in RODs 1 through 4 are protective of
human health and the environment, at least every 5 years as required by Section 121 (c)
of CERCLA and any applicable regulations; provided, however, that the Site Operator
shall not be required to expend more than $5,000 (adjusted for the Inflation Escalator)
per each 5-year review period assisting in any one EPA review.
2. The Oversight Agency may select further response actions for the Site in accordance
with the requirements of CERCLA and the NCP. Unless otherwise agreed by the Oversight
Agency and the Site Operator, further response actions, including any further
response actions implemented through future records of decision (such as decisions
that address the Boulder Creek area sources and downstream sediments), or a modification,
amendment or explanation of significant differences (ESD) of the RODs, neither
diminish nor increase the scope of the Site Operator's obligations under this SOW.
7.8 Primary Oversight Agency
1. The Work is subject to oversight by the Oversight Agency. The Oversight Agency is the
only state or federal agency authorized to direct the Site Operator with regard to the
Site Operator's obligations under this SOW and the Consent Decree. The Oversight
Agency is the agency authorized to give directions with regard to the Site Operator's
obligations under this SOW and the Consent Decree on behalf of all participating
government agencies. At the time the parties sign the Consent Decree, the Oversight
Agency shall be the EPA. At some time in the future, the State and federal governments
may change the Oversight Agency to a State or federal agency other than EPA. The
relationship between the Oversight Agency and the Support Agency with respect to
this SOW and Consent Decree are governed by the EPA/State MOU. A change in Oversight
or Support Agency is not subject to Dispute Resolution by the Site Operator.
2.
U i I *-> J I M. J L
The governments will provide reasonable notice to the Site Operator if the governments
change the Oversight Agency.
7.9 Support Agency Participation
1. The State of California, on behalf of DTSC and RWQCB, shall designate one of these
two agencies to be the Support Agency for the Site during the period of time that EPA
serves as the Oversight Agency. The State will provide notice to the Oversight Agency
and the Site Operator of which State agency shall be the Support Agency. The State may
change the Support Agency. A change in the Support Agency is not subject to Dispute
Resolution by the Site Operator.
2. The governments will provide reasonable notice to the Site Operator if the governments
change the Support Agency.
3. The Site Operator shall submit copies of documents submitted for Oversight Agency
review pursuant to Section 6, Management Plans and Reports, and other documents
requested, to the Support Agency at the same time the documents are submitted to the
Oversight Agency.
4. The Support Agency shall have the right to participate in all meetings and inspections
required by this SOW.
5. The Support Agency shall have a Support Agency Project Manager. The Support
Agency will provide to the Oversight Agency and the Site Operator the name and
address of the Support Agency Project Manager.
6. The relationship between the Oversight Agency and the Support Agency is addressed
in the EPA/State MOU.
7.10 Compliance with Applicable Laws
1. All activities by the Site Operator pursuant to this SOW shall be performed in accordance
with the requirements of all federal and state laws and regulations. EPA has
determined that the activities contemplated by this SOW are consistent with the NCP.
2. As provided in Section 121(e) of CERCLA and Section 300.400(e) of the NCP, no permit
shall be required for any response actions conducted entirely onsite (i.e., within the
areal extent of contamination and all suitable areas in very close proximity to the contamination
and necessary for implementation of such response actions) where such
action is selected and carried out in accordance with Section 121. Where any activity
that is not onsite (as defined in this SOW) requires a federal or state permit or approval,
the Site Operator shall submit timely and complete applications and take all other
actions necessary to obtain all such permits or approvals.
3. This SOW is not, and shall not be construed to be, a permit issued pursuant to any
federal or state statute or regulation.
4. The requirement of the Site Operator to perform all activities in this SOW in accordance
with the requirements of all federal and state laws and regulations, as stated in Section
7.10(1) above, is subject to the provisions of Section 7.7(2) (relating to future remedial
action) and Section 8.1(2) (relating to compensation associated with changes in Performance
Standards imposed by the Oversight Agency).
7.11 Oversight Agency Approval of Plans and Submissions
1. In reviewing any plan, report, or other item which is required to be submitted for
approval pursuant to this SOW or the Consent Decree, the Oversight Agency will consider
whether the submittal will achieve the Performance Standards and other
requirements of this SOW in a highly reliable manner based on sound technical and/or
engineering practices.
2. After review of any plan, report, or other item which is required to be submitted for
approval pursuant to this SOW and Consent Decree, the Oversight Agency, after reasonable
opportunity for review and comment by the Support Agency, shall:
a. Approve, in whole or in part, the submission;
b. Approve the submission upon specified conditions;
c. Modify the submission to cure the deficiencies;
d. Disapprove, in whole or in part, the submission, directing that the Site Operator
modify the submission; or
e. Any combination of the above.
However, the Oversight Agency shall not modify a submission without first providing
the Site Operator at least one notice of deficiency and an opportunity to cure within
sixty (60) days, except where to do so would cause serious disruption to the activities
being undertaken pursuant to the Consent Decree and SOW or where previous
submission(s) have been disapproved due to material defects and the deficiencies in the
submission under consideration indicate a bad faith lack of effort to submit an
acceptable deliverable.
3. In the event of approval, approval upon conditions, or modification by the Oversight
Agency, pursuant to Section 7.11 (2) (a, b, or c), the Site Operator shall proceed to take
any action required by the plan, report, or other item, as approved or modified by the
Oversight Agency, subject only to its right to invoke the Dispute Resolution procedures
set forth in Section XIX (Dispute Resolution) of the Consent Decree with respect to the
modifications or conditions made by the Oversight Agency and subject to Section 7.12
regarding the performance of disputed Work. In the event that the Oversight Agency
modifies the submission to cure the deficiencies pursuant to Section 7.11(2)(c) and the
submission has a material defect, the Oversight Agency retains its right to seek stipulated
penalties, as provided in Section XX (Stipulated Penalties) of the Consent Decree.
4. Upon receipt of notice of disapproval pursuant to Section 7.11(2)(d), the Site Operator
shall, within thirty (30) days or such longer time as specified by the Oversight Agency in
such notice, correct the deficiencies and resubmit the plan, report, or other item for
approval. Stipulated penalties applicable to the submission, as provided in Section XX of
the Consent Decree, shall accrue during the 30-day period or otherwise specified period,
but shall not be payable unless the resubmission is disapproved or modified due to a
material defect as provided in Section 7.11(2) or Section 7.11(7).
5. Notwithstanding the receipt of a notice of disapproval pursuant to Section 7.11(2)(d), the
Site Operator shall proceed, at the direction of the Oversight Agency, to take any action
required by any non-deficient portion of the submission. Implementation of any nondeficient
portion of a submission shall not relieve the Site Operator of any liability for
stipulated penalties under Section XX (Stipulated Penalties) of the Consent Decree.
6. In the event that a resubmitted plan, report, or other item, or portion thereof, is disapproved
by the Oversight Agency, the Oversight Agency may again require the Site
Operator to correct the deficiencies, in accordance with the preceding paragraphs. The
Oversight Agency also retains the right to modify or develop the plan, report or other
item. The Site Operator may invoke the procedures set forth in Section XIX (Dispute
Resolution) of the Consent Decree to dispute a disapproval or modification under this
Paragraph. The Site Operator shall implement any such plan, report, or item as modified
or developed by the Oversight Agency except to the extent that the Site Operator
invokes the procedures set forth in Section XIX (Dispute Resolution) of the Consent
Decree. If the Site Operator invokes the Dispute Resolution procedures, the performance
of Work in dispute shall be governed by Section 7.12.
7. If upon resubmission, a plan, report, or item is disapproved or modified by the Oversight
Agency due to a material defect, the Site Operator shall be deemed to have failed
to submit such plan, report, or item timely and adequately unless the Site Operator
invokes the Dispute Resolution procedures set forth in Section XIX (Dispute Resolution),
and the Oversight Agency's action is overturned pursuant to that Section. The provisions
of Section XIX (Dispute Resolution) and Section XX (Stipulated Penalties) of the
Consent Decree shall govern the implementation of all activities pursuant to the Consent
Decree and the accrual and payment of any stipulated penalties during Dispute Resolution.
If the Oversight Agency's disapproval or modification is upheld, stipulated
penalties shall accrue for such violation from the date on which the initial submission
was originally required, as provided in Section XX of the Consent Decree.
8. All plans, reports, and other items required to be submitted to the Oversight Agency
under this SOW and the Consent Decree shall, upon approval or modification by the
Oversight Agency, be enforceable under this SOW or the Consent Decree. In the event
the Oversight Agency approves or modifies a portion of a plan, report, or other item
required to be submitted to the Oversight Agency under this SOW or the Consent
Decree, and the modification is upheld through Dispute Resolution (if applicable), the
approved or modified portion shall be enforceable under this SOW or the Consent
Decree.
9. In connection with agency oversight of the Work, the Site Operator shall participate in
conference calls and meetings, as necessary.
10. Nothing contained in the Consent Decree or this SOW shall confer any benefit or right to
any person or entity not a signatory to the Consent Decree, nor shall any such person or
entity have any right to enforce the Consent Decree, this SOW, or any of the provisions
of either of them. However, any federal or State agency designated as the Oversight
Agency or Support Agency shall have all of the rights of any predecessor Oversight
Agency regardless of whether the Oversight Agency or Support Agency was a signatory
to the Consent Decree.
7.12 Performance of Disputed Work
1. During the Dispute Resolution under Section XIX of the Consent Decree, the Oversight
Agency may elect to order the Site Operator to perform the Work directly in dispute and
the Site Operator shall comply with the order to perform such Work. The Oversight
Agency may also order the Site Operator to provide a cost estimate of the Work directly
in dispute (under the procedures of Section 4.2.2). The Oversight Agency will not order
the Site Operator to perform such Work unless the Oversight Agency has sufficient
funds in the Iron Mountain Mines special account or accounts or sources of funds established
pursuant to the Consent Decree to pay for the disputed Work (taking into account
any avoided costs or savings), and so notifies the Site Operator in advance by providing
the most current accounting statement from the Iron Mountain Mines special account or
other funding source. If the Oversight Agency directs the Site Operator to perform such
Work, such Work shall be Added Scope Work for purposes of Section 4.2 if the Site
Operator establishes through Dispute Resolution that such Work is beyond the scope of
this SOW. If the Site Operator does not establish that the Work is beyond the scope of
this SOW, the Site Operator shall be responsible for the costs and expenses of the disputed
Work.
2. The invocation of Dispute Resolution does not relieve the Site Operator from meeting
the Performance Standards or other requirements of this SOW.
7.13 Assurance of Ability to Complete Work
7.13.1 Purpose
1. The Site Operator shall provide the Oversight Agency with the assurance that it has
adequate financial capabilities to complete the Work required by this SOW. At the start
of the Performance Period, the Policy, in combination with the Site Operator's compliance
with the other insurance requirements contained in this SOW, will provide financial
assurance that exceeds the Site Operator's projected cost of the Work under this
SOW. In the event that the expected project completion costs for Work under this SOW
exceeds the applicable limits remaining in the Policy, the Site Operator shall post
financial assurance using one or more of the methods outlined in Section 7.13.4 of this
SOW to the extent required by this Section to ensure completion of the Work under this
SOW.
7.13.2 Timing
1. At the end of the Site Operator's 10th fiscal year, and every 3 years thereafter, the Site
Operator shall prepare and submit to the Oversight Agency for review and approval a
financial report comparing the funds available in the Policy with the current estimated
cost to complete the Work under this SOW. If the report indicates that financial
assurance is required, then the Site Operator shall post the required financial assurance
within ninety (90) days after the close of the Site Operator's fiscal year.
7.13.3 Method of Calculation for Presumed Current Completion Costs
1. This Section sets forth the method for calculating the expected project completion costs
("Current Project Completion Costs") and the amount of financial assurance required in
the event that project completion costs exceed the remaining policy limits. The method
of calculating the Current Project Completion Costs is presumed to be sufficiently accurate,
but the parties may use another, reasonable method of calculating the expected
project completion costs if factors indicate that the presumed method of calculation significantly
misstates the actual cost to complete. In that event, the Oversight Agency may
approve use of another, reasonable method of calculating the expected cost of project
completion.
2. Beginning with the fiscal year ended December 31,2001, the Site Operator shall, on an
annual basis, convert the total costs for each fiscal year back to Year 2000 dollars by discounting
(using the increase in the CPI-U from December 2000) the actual costs and fees
(including markups) incurred by the Site Operator in each fiscal year; provided, however,
the Site Operator shall not be required to include any increase in the CPI-U for the
fiscal year ending December 31,2001. For example, if the total cost at Year 2 was
$5 million and the CPI-U has increased by 5 percent since 2000, the figure for Year 2 is
discounted back to Year 2000 dollars using the following formula: $5M/1.05. This figure
shall be the "Real Dollar Cost" for that given year.
3. The Site Operator shall sum the Real Dollar Cost for each year and determine the average
Real Dollar Cost by dividing the total sum by the number of years in the set. This
average will be the "Real Dollar Average Cost."
4. The Site Operator shall convert the Real Dollar Average Cost to the then-current dollars
by inflating the Real Dollar Average Cost to current dollars. This calculation is performed
by multiplying the Real Dollar Average Cost by the percentage increase in the
CPI-U since December 2000. This figure will be the "Current Dollar Average Cost." For
example, if the Real Dollar Average Cost over the first 10 years is $5 million and the
CPI-U has increased by 15 percent by Year 10, the Current Dollar Average Cost would
be calculated as follows: $5M x 1.15.
5. The Site Operator shall assume that the Current Dollar Average Cost reflects the average
future costs and that future inflation is 3.25 percent per year. The expected future project
costs are calculated by taking the sum of the expected future costs by adjusting the
Current Dollar Average Cost using a 3.25 percent inflation factor for each year remaining
in the program. For example, if there were 3 years left in the program and the
Current Dollar Average Cost were $10 million, the calculation would be as follows:
10M x 1.0325 + 10M x 1.03252 + 10M + 1.03253.
6. The figure calculated in this manner shall be presumed to be the Current Cost of Completion
unless there is strong evidence that the figure should be modified. Factors that
may justify a modification to this calculation include:
a. Whether the rainfall over the entire period has been significantly above or below the
historic average rainfall;
b. Whether there is a new technology that has demonstrated an expected significant
cost savings or cost increase relative to the historic costs;
c. Whether the Site conditions have changed in a significant manner that translates into
demonstrated increased or decreased costs relative to the historic costs;
d. Whether an extremely low probability and very high cost event has occurred; and
e. Whether there are factors that have occurred since the project start that provide
strong evidence that the cost of completion should be modified.
If such factors exist, the Current Cost of Completion may be modified as appropriate
to reflect such factors.
7. If the Current Cost of Completion is equal to or less than the remaining applicable limits
of the Policy, the Site Operator shall not be obligated to post financial assurance in
addition to the Policy.
8. If the Current Cost of Completion is greater than the remaining applicable limits of the
Policy, then the Site Operator shall post financial assurance in an amount equal to the
difference between the Current Cost of Completion and the remaining limits of the
Policy.
7.13.4 Form of Financial Assurance
1. If the Site Operator is required to post financial assurance under this Section, the Site
Operator shall establish and maintain financial security in one or more of the following
forms:
a. A surety bond guaranteeing performance of the activities to be undertaken pursuant
to the Consent Decree and this SOW;
b. One or more irrevocable letters of credit equaling the total estimated cost of such
activities;
c. A trust fund;
d. A guarantee to perform the activities required under the Consent Decree and this
SOW by one or more parent corporations or subsidiaries, or by one or more unrelated
corporations that have a substantial business relationship with the Site
Operator;
e. A demonstration that the Site Operator satisfies the requirements of 40 C.F.R.
Part 264.143(f); or
f. An appropriate insurance vehicle satisfactory to the Oversight Agency.
2. If the Site Operator seeks to demonstrate the ability to complete the activities required
by the Consent Decree and this SOW through a guarantee by a third party pursuant to
Section 7.13.4(l)(d), above, the Site Operator shall demonstrate that the guarantor satisfies
the requirements of 40 C.F.R. Part 264.143(f). If the Site Operator seeks to demonstrate
its ability to complete the activities required by the Consent Decree and this SOW
by means of the financial test or the corporate guarantee pursuant to Section 7.13.4(l)(d)
or, it shall resubmit sworn statements conveying the information required by 40 C.F.R.
Part 264.143(f) annually, on the anniversary of the Effective Date of this SOW. In the
event that the Oversight Agency, after a reasonable opportunity for review and
comment by the Support Agency, determines at any time that the financial assurances
provided pursuant to this Section are inadequate, the Site Operator shall, within thirty
(30) days of receipt of notice of the Oversight Agency's determination, obtain and
present to the Oversight Agency for approval one of the other forms of financial
assurance listed in Section 7.13.4(1), above. The Site Operator's inability to demonstrate
financial ability to complete the activities required by the Consent Decree and this SOW
shall not excuse performance of such activities.
3. The Site Operator may demonstrate that the financial security necessary for the remaining
activities required by the Consent Decree and this SOW has diminished below the
amount set forth in Section 7.13.3(8) above, on the 3-year anniversaries of the entry of
the Consent Decree. The Site Operator may, on those anniversary dates, or at any other
time agreed to by the Parties, reduce the amount of the financial security provided
under this Section to the estimated cost of the remaining Work to be performed. The Site
Operator shall submit a proposal for such reduction to the Oversight Agency, in accordance
with the requirements of this Section and may reduce the amount of the security
upon approval by the Oversight Agency. In the event of a dispute, the Site Operator
judicial decision resolving the dispute.
4. The Site Operator may change the form of financial assurance provided under this Section
7.13.4 at any time, upon notice to and approval by the Oversight Agency, provided
that the new form of assurance meets the requirements of this Section. In the event of a
dispute, the Site Operator may change the form of the financial assurance only in accordance
with the final administrative or judicial decision resolving the dispute.
7.14 Completion of Work
1. Within ninety (90) days prior to the termination of the Performance Period, the Site
Operator shall schedule and conduct a pre-certification inspection to be attended by the
Site Operator, Oversight Agency, and the Support Agency. After the pre-certification
inspection, the Site Operator shall submit a written report to the Oversight Agency and
the Support Agency stating that the activities required under this SOW and the Consent
Decree have been completed in full satisfaction of the requirements of this SOW and the
Consent Decree. The report shall contain the following statement, signed by a responsible
corporate official of the Site Operator or by the Site Operator's Project Manager:
To the best of my knowledge, after thorough investigation, I certify that
the information contained in or accompanying this submission is true,
accurate, and complete. I am aware that there are significant penalties for
submitting false information, including the possibility of fine and imprisonment
for knowing violations.
2. The Site Operator's obligation to perform Operation and Maintenance under this SOW
shall terminate when the Performance Period ends. Notwithstanding the prior sentence,
after review of the written report, the Oversight Agency, after reasonable opportunity to
review and comment by the Support Agency, determines that any portion of the activities
required by this SOW or the Consent Decree has not been completed in accordance
with this SOW or the Consent Decree, the Oversight Agency will notify the Site Operator
in writing of the activities that must be undertaken by the Site Operator pursuant to
this SOW or the Consent Decree. Provided, however, that the Oversight Agency may
only require the Site Operator to perform such activities pursuant to this Paragraph to
the extent that such activities were required to be performed under the O&M Work Plan,
this SOW, or the Consent Decree. The Oversight Agency will set forth in the notice a
schedule for performance of such activities consistent with the O&M Work Plan, this
SOW, and the Consent Decree or require the Site Operator to submit a schedule to the
Oversight Agency for approval pursuant to Section 7.11, Oversight Agency Approval of
Plans and Other Submissions. The Site Operator shall perform all activities described in
the notice in accordance with the specifications and schedules established therein, subject
to its right to invoke the Dispute Resolution procedures set forth in Section XIX
(Dispute Resolution) of the Consent Decree.
3. If the Oversight Agency concludes, based on the initial or any subsequent request for
Certification of Completion by the Site Operator and after a reasonable opportunity for
review and comment by the Support Agency, that the activities required by this SOW
and the Consent Decree have been performed in accordance with this SOW and the
Oversight Agency may not unreasonably withhold approval of the Work.
7.15 Force Majeure
1. "Force Majeure," for purposes of the Consent Decree and this SOW, is defined as any
event arising from causes beyond the control of the Site Operator, of any entity controlled
by the Site Operator, or of the Site Operator's subcontractors, including lack of
legal access to the property identified in Section 7.3(4), that delays or prevents the performance
of any obligation under this SOW or the Consent Decree despite the Site
Operator's best efforts to fulfill the obligation. The requirement that the Site Operator
exercises "best efforts to fulfill the obligation" includes using best efforts to anticipate
any potential Force Majeure event and best efforts to address the effects of any potential
Force Majeure event (a) as it is occurring, and (b) following the potential Force Majeure
event, such that the delay or prevention of performance is minimized to the greatest
extent possible. "Force Majeure" does not include financial inability to complete the
activities required by this SOW or the Consent Decree.
2. If any event occurs or has occurred that may delay or prevent the performance of any
obligation under this SOW or the Consent Decree, whether or not caused by a Force
Majeure event, the Site Operator shall notify orally the Oversight Agency's Project
Coordinator or, in his or her absence, the Oversight Agency's Alternate Project Coordinator
or, in the event both of the Oversight Agency's designated representatives are
unavailable, the Director of the Superfund Division, EPA Region 9, as soon as possible
under the circumstances. It shall be presumed that notice not made within four (4)
Working Days of when the Site Operator knew or should have known that the event
might cause a delay or non-performance is untimely unless evidence credible to the
Oversight Agency and to the contrary is provided to the Oversight Agency by the Site
Operator. Within ten (10) days thereafter or such longer time as specified by the Oversight
Agency, the Site Operator shall provide in writing to the Oversight Agency and the
Support Agency an explanation and description of the reasons for the delay or failure to
perform; the anticipated duration of the delay or failure to perform; all actions taken or
to be taken to prevent or minimize the delay or failure to perform; a schedule for
implementation of any measures to be taken to prevent or mitigate the delay or the
effect of the delay or failure to perform; the Site Operator's rationale for attributing such
delay or failure to perform to a Force Majeure event if it intends to assert such a claim;
and a statement as to whether, in the opinion of the Site Operator, such event may cause
or contribute to an endangerment to public health, welfare, or the environment. The Site
Operator shall include with any notice all available documentation supporting its claim
that the delay or failure to perform was attributable to a Force Majeure. Failure to substantially
comply with the above requirements shall preclude the Site Operator from
asserting any claim of Force Majeure for that event for the period of time of such failure
to comply, and for any additional delay or failure to perform caused by such failure to
comply. The Site Operator shall be deemed to know of any circumstance of which the
Site Operator, any entity controlled by the Site Operator, or the Site Operator's subcontractors
knew or should have known.
3. If the Oversight Agency, after a reasonable opportunity for review and comment by the
Support Agency, agrees that the delay or anticipated delay or failure to perform is
attributable to a Force Majeure event, (a) the time for performance of the obligations
under this SOW or the Consent Decree that are affected by the Force Majeure event will
be extended by the Oversight Agency, after a reasonable opportunity for review and
comment by the Support Agency, for such time as is necessary to complete those obligations
and (b) any non-compliance with Performance Standards or other requirements of
this SOW directly caused by the Force Majeure event shall not be a violation of this
SOW. An extension of the rime for performance of the obligations affected by the Force
Majeure event shall not, of itself, extend the time for performance of any other obligation
not affected by the Force Majeure event. If the Oversight Agency, after a reasonable
opportunity for review and comment by the Support Agency, does not agree that the
delay, anticipated delay, or failure to perform has been or will be caused by a Force
Majeure event, the Oversight Agency will notify the Site Operator in writing of its decision
and the Site Operator may invoke Dispute Resolution under the Consent Decree. If
the Oversight Agency, after a reasonable opportunity for review and comment by the
Support Agency, agrees that the delay or failure to perform is attributable to a Force
Majeure event, the Oversight Agency will notify the Site Operator in writing of the
length of the extension, if any, for performance of the obligations affected by the Force
Majeure event.
4. If the Site Operator elects to invoke the Dispute Resolution procedures set forth in
Section XIX (Dispute Resolution) of the Consent Decree, it shall do so no later than
fifteen (15) days after receipt of the Oversight Agency's notice. In any such proceeding,
the Site Operator shall have the burden of demonstrating by a preponderance of
evidence that the delay, anticipated delay, or failure to perform has been or will be
caused by a Force Majeure event, that the duration of the delay, failure to perform, or
the extension sought was or will be warranted under the circumstances, that best efforts
were exercised to avoid and mitigate the effects of the delay or failure to perform, and
that the Site Operator complied with the requirements of Paragraphs 1,2, and 3 of this
Section 7.15. If the Site Operator carries this burden, the delay or failure to perform at
issue shall be deemed not to be a breach by the Site Operator of the affected obligation of
this SOW or the Consent Decree identified to the Oversight Agency and the Court.
7.16 Work Takeover
1. If the Oversight Agency determines that the Site Operator has ceased implementation
of any portion of the activities required by the Consent Decree and this SOW, is seriously
or repeatedly deficient or late in its performance of any such activities, or is
implementing any such activities in a manner that presents an imminent and
substantial endangerment to human health or the environment, or has improperly
transferred responsibility without approval under Section in of the Consent Decree, the
Oversight Agency may assume the performance of all or any portions of such activities
as the Oversight Agency determines necessary. Before assuming performance of the
Work, the Oversight Agency shall first give the Site Operator notice of its intent to do so
and, unless there is insufficient time to do so or the condition is one that cannot be
cured, shall provide the Site Operator with a reasonable period of time to cure the
alleged problems with the Work. The Site Operator may invoke the procedures set forth
in Section XIX of the Consent Decree (Dispute Resolution) to dispute the Oversight
Agency's determination that takeover of any activity required under the Consent
Decree and this SOW is warranted under this Section or the amount of any payment
due the Oversight Agency under this Section.
2. The Site Operator's obligations in the event of a Work Takeover are:
a. To continue performance of all obligations under this SOW other than related
solely to the specific Work being taken over by the Oversight Agency;
b. To cooperate fully with the Oversight Agency and assist the transition from the Site
Operator of the Work being assumed by the Oversight Agency;
c. To provide the Oversight Agency, or its designee, with all tools, equipment, vehicles,
materials, supplies, software, documents, files, or other equipment or materials
being used by the Site Operator to perform the Work being assumed by the
Oversight Agency. The Oversight Agency shall exclude from its Response Costs
any charge for fair market/rental value for such items provided by the Site
Operator except to the extent a third party charges the Oversight Agency for such
costs. Use of such items by the Oversight Agency shall not give rise to a charge, setoff
or similar right by the Site Operator;
d. To provide the Oversight Agency, or its designee, with all historic records, documents,
or other materials that document the conditions at the Site or the Work performed
by the Site Operator prior to the Work Takeover;
e. To provide the Oversight Agency with access to the Site Operator's key employees
who have operational knowledge of the Work being assumed by the Oversight
Agency; and
f. To help the Oversight Agency obtain, if requested by the Oversight Agency,
enforceable rights to continue, any contracts, subcontracts, supply contracts,
licenses, or other intangible assets being used by the Site Operator to perform the
Work being assumed by the Oversight Agency.
3. If the Oversight Agency takes over performance of some or all of the activities required
under the Consent Decree and this SOW, the Site Operator shall pay the Oversight
Agency's Response Costs in the manner provided by Section XVI of the Consent
Decree, except to the extent that such costs are paid to the Oversight Agency by the
Policy. To the extent required by the NCP, the Oversight Agency shall use reasonable
efforts to mitigate its Response Costs in the event of a full or partial Work Takeover. At
the discretion of the Oversight Agency, the Oversight Agency may take over the Work
itself, or the Site Operator may be replaced by a third party. A Work Takeover does not
relieve the Site Operator from obligations relating to financial assurance, payment of
Response Costs, or document retention. In the event that a Work Takeover by the
Oversight Agency is found through Dispute Resolution to not be authorized under this
SOW, the Site Operator shall be reinstated with respect to such Work, and the Site
Operator shall not be deemed to have waived any rights for damages that it may have
for the period that Work was taken over. Costs incurred by the Oversight Agency
pursuant to Section 7.16 shall be considered Response Costs that the Site Operator shall
pay pursuant to Section XVI of the Consent Decree (Reimbursement of Response
Costs).
4. The remedies provided in this Section are in addition to, and not exclusive of, any other
remedies provided by this SOW or Consent Decree.
7.17 Post-Performance Period Transition
1. At the end of the Performance Period, or such other time that the Site Operator's Work
obligations under this SOW are terminated, the Site Operator shall transfer, or cause the
Trust to transfer, to the entity as directed by the Oversight Agency, whatever right, title
and interest in or to the Site, any O&M Unit, and any O&M Unit Component which the
Site Operator and Trust may have. The Site Operator may retain any vehicles, trucks,
expensed equipment, office supplies, and other personal property owned by the Site
Operator, and the Site Operator will remove such property from the Site within a reasonable
period after the Performance Period.
2. At the conclusion of the Performance Period, the Site Operator will assist the Oversight
Agency in the orderly transition of responsibility for Site activities from the Site Operator
to the Oversight Agency or other entity as directed by the Oversight Agency.
8. Performance Standards
8.1 Introduction
1. The Site Operator shall diligently operate and maintain the O&M units to protect facilities
and personnel, both onsite and offsite, from damage, injury, or illness that could
result from fire, accidental chemical releases, unsafe conditions, flooding, erosion, and
all other reasonably anticipated sources, conditions, and events. The criteria used to
design the O&M Units to achieve the Performance Standards for the IMM Remedy are
further described in applicable Design Criteria Reports, Engineering Analysis Reports,
designs, and other design documents produced during the design of the facilities to
implement the IMM Remedy. To the extent practicable, the Site Operator shall reconstruct
or repair components of the O&M Units in conformance with the available design
documents for the IMM Remedy listed in Attachment D to this SOW. To the extent such
documents are not available or to the extent the Site Operator can establish an alternative
approach meets the objectives of this SOW, the Site Operator shall reconstruct or
repair the components in a manner that achieves the Performance Standards and other
requirements of this SOW in a reliable manner.
2. The Performance Standards stated in Sections 8 and 14 shall be the applicable Performance
Standards during the Performance Period. The Oversight Agency may impose
more stringent Performance Standards or add new Performance Standards, provided
that the Site Operator is compensated for its additional costs, if any, as provided in
Section 4 and is given a reasonable period of time to achieve the modified or new Performance
Standards. Actions required to meet .the Performance Standards or other
requirements of this SOW shall not be a modification of Performance Standards for
purposes of this Paragraph.
3. At any time during the Performance Period, the Site Operator may petition the Oversight
Agency to modify the Performance Standards provided herein. The Site Operator
shall describe in detail its basis for modification and attach all supporting data. A decision
of the Oversight Agency regarding modification under this Section 8.1.3 of Performance
Standards shall not be subject to Dispute Resolution or judicial review by the
Site Operator.
4. Notwithstanding anything herein to the contrary, neither this SOW nor the Site Operator's
Work Plans or other documents submitted pursuant to this SOW, nor the
undertaking of any Work herein, shall constitute a warranty, express or implied, as to
Site Operator's ability to meet the Performance Standards.
5. This SOW and the Consent Decree do not obligate the Site Operator to perform, without
additional compensation, any Work that is beyond the scope of this SOW.
8.2 General Performance Standards
1. The Site Operator is responsible for achieving the Performance Standards and other
requirements of this SOW despite any unknown or unanticipated conditions, unusual
weather or severe conditions, except to the limited extent specifically allowed by this
SOW.
2. The Site Operator shall:
a. Comply with all requirements set forth in the Consent Decree,
b. Ensure effective and reliable operation of the IMM Remedy.
c. Ensure the collection, conveyance, and treatment of all Designated Contaminant
Discharges except to the extent specifically allowed by this SOW in Sections 8.4 or
7.15 or to the extent specifically allowed in subsequent amendments to this SOW
and/or Consent Decree.
d. Ensure achievement of the Performance Standards set forth in Sections 8 and 14 of
this SOW.
e. Plan and execute the Work under this SOW in a manner that provides safe working
conditions and ensures protection of worker health and safety under all anticipated
conditions. The Site Operator shall use best efforts to anticipate and avoid situations
that pose an unacceptable risk to worker health and safety. If a situation arises
where performing a task poses an unacceptable risk to worker health and safety,
the Site Operator may reschedule the Work element until the soonest next available
time when the Work can be safely performed in accordance with this SOW and
requirements of the Health and Safety Plan for the Site. In such situations, the Site
Operator shall take all necessary actions to mitigate and minimize any noncompliance
with the Performance Standards and other requirements of this SOW.
If a situation giving rise to the unacceptable health and safety risk arose despite the
best efforts of the Site Operator to anticipate and prepare for the situation, and the
Site Operator took appropriate mitigation steps during the delay, the Site Operator
shall not be considered to be in breach of this SOW or the Consent Decree for the
delay in performing the required task. The Site Operator shall report to the Over-
sight Agency and Support Agency such situations within twelve (12) hours of
discovery of the situation and in the Monthly Progress Reports.
f. Except as set forth in Paragraphs 3 and 4 of Section 8.2, the Site Operator shall
maintain and replace, as appropriate, all O&M Units and O&M Unit Components
so that, during the performance of this SOW and at the completion of the Site
Operator's obligations under this SOW, the O&M Units, and all O&M Unit
Components:
i. Are reliable and fully functional; and
ii. Substantially meet or exceed the condition of the O&M Units and O&M Unit
Components as of August 1,2000.
3. The O&M Unit Components listed in Section 8.2(4) are "Depreciable O&M Unit
Components." The Site Operator must maintain Depreciable O&M Unit Components at
a level that:
a. Is consistent with good industrial and commercial practice;
b. Minimizes the long-term operation and maintenance costs for the component; and
c. Ensures that the component is always reliable and fully functional.
4. Provided these standards are met, Depreciable O&M Unit Components may be turned
over to the Oversight Agency at the completion of the Site Operator's obligations under
this SOW, in good condition, but not necessarily equal to the condition of the component
as of August 1,2000:
a. Lime silos;
b. Lime slurry system;
c. Thickener;
d. Day lime silos;
e. The treatment plant structure;
f. Reactor tanks;
g. Air blowers and air injection system;
h. Office building;
i. Sheds;
j. MCC control building;
k. Paved roads;
1. Shotcrete- or concrete-lined ditches; and
m. Lined pipelines
8.3 Good Housekeeping Standards
1. The Site Operator shall diligently perform good housekeeping with respect to the O&M
Units to ensure effective implementation of the IMM Remedy.
2. The Site Operator shall maintain equipment in a manner that ensures a clean, well-kept
appearance.
3. The Site Operator shall maintain the O&M Units and all areas within 30 feet of O&M
Units clear of dead and downed brush, trees, and debris. The Site Operator shall
burning at an approved burn location.
4. The Site Operator shall maintain all areas within 30 feet of all power poles clear of dead
and downed brush, trees, and debris. The Site Operator shall properly dispose of
removed and cleared brush and trees, such as through chipping or burning at an
approved burn location.
5. The Site Operator shall use reasonable efforts to prevent unauthorized entry to the Site.
6. The Site Operator shall provide a safe working environment through keeping Work
areas free of tripping and other hazards, providing lighting for any night work, and
implementing an adequate safety program.
8.4 Minnesota Flats Treatment Plant
1. The Site Operator shall achieve the Performance Standards in this SOW as set forth in
Sections 8 and 14.
2. The Site Operator shall operate and maintain the HDS plant in a manner that optimizes
(maximizes) terminal sludge density while maximizing long-term performance and
reliability of the treatment plant equipment. Terminal sludge density is the density of
the sludge prior to sludge haulage.
3. The Site Operator shall operate and maintain the reactor blowers and aeration systems
in a manner that maximizes oxidation of the sludge prior to discharge of the sludge to
the sludge drying beds. The Site Operator shall, to the maximum extent practicable,
produce a fully oxidized sludge characterized by a deep red color (Munsell Soil Color
Chart 10R 3/6 Dark Red).
4. The Site Operator shall provide staff trained for operations, maintenance, and safety in
accordance with the requirements specified in the Operations and Maintenance
Instructions, High Density Sludge Treatment Plant, Iron Mountain Mine-Redding, CA,
included by reference as Attachment E. The Site Operator shall maintain records onsite
that verify the training for all treatment plant staff.
5. Once the MFTP modifications are completed (under separate contract), the Site Operator
shall maintain the maximum design peak inflow capacity at 6,500 gpm. The Site
Operator shall operate the MFTP with a target inflow rate of 5,500 gpm to ensure
1,000 gpm emergency capacity to address AMD surges and other unusual conditions.
6. The Site Operator shall maximize the use of emergency storage to prevent discharge of
untreated or partially treated Designated Contaminant Discharges. In the event that the
influent flow rate to the MFTP exceeds the capacity of the MFTP to neutralize the influent,
and all available storage, the Site Operator shall maximize removal of metals by
providing treatment of Designated Contaminant Discharges according to the following
priorities: (a) Richmond portal, (b) Lawson portal, (c) Old No. 8 Mine Seep, and
(d) SCRR. Excess Designated Contaminant Discharges from (a), (b), and (c) shall be
treated at the Boulder Creek Cementation Plant to achieve maximum removal of
copper.
7. In situations where the Designated Contaminant Discharges exceed the capacity of the
MFTP, the Site Operator shall notify the Oversight Agency within eight (8) hours, shall
use best efforts to avoid the release of untreated AMD, and shall coordinate with the
Oversight Agency to modify the operations approach to address the problem. The Site
Operator shall take immediate actions to prevent or minimize the release of untreated
or partially treated AMD, including, but not limited to, coordinating the operation of
the SCRR, using the Old/No. 8 Mine as a storage facility, filling the AMD storage tank,
and filling the Modutank. If despite these efforts, there is insufficient storage and treatment
capacity, the Site Operator shall maximize removal of metals by prioritizing the
treatment of flows according to Section 8.4(6). If there is a release of untreated or partially
treated Designated Contaminant Discharges, then the Site Operator shall not be
responsible for the release of Designated Contaminant Discharges due to an exceedance
of the capacity of the MFTP, to the extent that such discharges exceed the capacity of
the MFTP, provided that the Site Operator follows these procedures and has maintained
the capacity of the MFTP and other relevant facilities as required by this SOW.
8.5 Treatment Plant Ancillary Facilities
8.5.1 Plant Roads
1. The Site Operator shall maintain the roadbase-surfaced roads in a manner that preserves
or improves the existing (August 1,2000) condition and road surface quality,
provides safe access, preserves the initial investment of the roadway construction, and
provides reasonable ride quality. The Site Operator shall maintain all roadways within
and adjacent to the treatment plant and sludge drying beds. This maintenance shall
include routine regular removal of sediment from ditches and culverts prior to and
during winter months, routine road grading and patching, filling potholes, and resurfacing
of roads surfaced with roadbase to minimize rut formation in conformance with
the original design.
2. The Site Operator shall maintain the asphalt-paved road in a manner that preserves the
existing (August 1,2000) road surface, provides safe access, preserves the initial investment
of the roadway construction, and provides reasonable ride quality. Asphalt
roadway deficiencies vary considerably. Conditions to be prevented and corrected
include, but are not limited to, chronically slippery pavement, raveling, rutting, potholes,
abrupt vertical variations, pavement cracks, and shoulder distress. Depending on
the extent and severity of the observed distress, the Site Operator shall implement
corrective measures, including roadbase repair, hand patching, machine patching, spot
sealing, seal coat, crack sealing and/or filling, cold planing, and overlays.
3. Inspections of the asphalt-paved roads shall be conducted as needed, but at a minimum
the inspections shall be performed annually to identify pavement deficiencies requiring
corrective measures. Upon identification of a deficiency, permanent corrective measures
shall be scheduled to occur on an annual basis. If unsafe conditions exist when
permanent repair operations are not scheduled, temporary measures may be utilized to
bring the pavement into a safe condition. These temporary measures shall be replaced
with a permanent corrective measure during the next regular repair operation.
4. The Site Operator shall maintain asphalt-paved roads at the Site in a manner that complies
with the Shasta County Development Standards.
8.5.2 Hillslopes
1. The Site Operator shall maintain hillslopes above and below the emergency storage
tank, sludge drying beds, and the treatment plant in a manner that directs drainage to
the existing drainage ditches, and prevents gullying, concentrated flow patterns, and
erosion of the slope surfaces. The Site Operator shall repair or improve surface erosional
features annually, or more often as required, to prevent development of gullies and
sedimentation of receiving drainage ditches. The repairs shall include placement or
replacement of erosion mats, geotextiles, and riprap covers, or other designs.
8.5.3 Effluent Discharge Works
1. The Site Operator shall operate and maintain the effluent discharge works, including the
intake, piping, outlet works, and dike separating the outlet works from Spring Creek, in
a manner that ensures continuous 10,000 gpm discharge capacity of the outlet works.
The Site Operator shall operate and maintain the effluent discharge works to ensure that
all treated effluent is discharged to Spring Creek.
8.5.4 Modutank
1. The Site Operator shall maintain the Modutank and supporting pipes, valves, and other
equipment in a manner that ensures availability and reliable operation of the Modutank
during emergency conditions, including treatment plant downtimes and major storm
events.
2. The Site Operator shall maintain the Modutank and related structures in a manner that
does not leak beyond acceptable design tolerances based on a forty-eight (48)-hour leak
test with a full head of water.
8.5.5 AMD Storage Tank
1. The Site Operator shall operate and maintain the AMD storage tank and supporting
pipes, valves, and other equipment in a manner that ensures availability and reliable
operation of the tank capacity for operations and storage during both routine and emergency
conditions (including treatment plant downtimes and major storm events).
2. The Site Operator shall operate and maintain the AMD storage tank and related equipment
in a condition that does not leak beyond acceptable design tolerances.
8.5.6 Clean Water System
1. The Site Operator shall operate and maintain the clean water system to ensure sufficient
lime slurry makeup water at the treatment plant at all times and under all treatment
plant inflow conditions.
2. The Site Operator shall operate and maintain the clean water intake structure stilling
pool to minimize intake of sediment and debris; reduce wear on pumps, pipes, and
valves; and minimize sediment loading of the clean water storage tank.
8.5.7 Sludge Drying Beds
1. The Site Operator shall maintain the integrity of the lining system and prevent filtrate
from infiltrating into the groundwater beyond acceptable design tolerances.
2. The Site Operator shall prevent sludge and supernatant from overtopping the drying
beds and discharging into the Flat Creek watershed drainage.
3. The Site Operator shall prevent overtopping of the filtrate pump station sump and discharge
of filtrate into the Flat Creek watershed.
4. The Site Operator shall operate and maintain the sludge drying beds in a manner that
maximizes separation of water from the sludge, ensures collection and conveyance of
the filtrate to the filtrate pump station, and ensures conveyance of the filtrate to Spring
Creek.
8.5.8 Boulder Creek Copper Cementation Plant
1. The Site Operator shall maintain the Boulder Creek Copper Cementation Plant (BCCP)
and supporting pipes, valves, and other equipment in a manner that ensures availability
and reliable operation of the BCCP for copper removal during emergency conditions
that prevent treatment of AMD at the MFTP. The BCCP has been idle for several years
prior to this SOW and is only anticipated to be used in an unusual set of circumstances.
2. The Site Operator shall keep the concrete bays of the BCCP stocked with scrap iron at all
times and shall actively operate and maintain the BCCP during periods of use to ensure
the effective removal of copper from the AMD flows directed to the BCCP.
3. Notwithstanding Sections 8.5.8(1) and (2) above, the Site Operator shall not be obligated
to expend more than $5,000 per year in any year (adjusted by the Inflation Escalator) in
connection with this O&M Unit.
8.6 Site Roads
1. All roads, ditches, culverts, grates, drainage control structures, and structures supporting
roadways at the Site require regular maintenance. For purposes of this SOW, the
roadways are classified in Section 9.5.2 as Critical Access Roads, Important Access
Roads, and Non-critical Access Roads.
2. The Site Operator shall maintain the roads in a manner that preserves or improves the
existing (August 1,2000) road surface, provides safe access, preserves the initial
investment of the roadway construction, and provides reasonable ride quality.
3. The Site Operator shall maintain the roads in a fire-safe manner and in a manner that
permits access for fire-fighting equipment and personnel. The Site Operator shall
maintain the roadways clear of brush overhanging roadways and remove dead, dry
brush near roadways.
4. The Site Operator shall keep all roads open, clear, and in good repair. The Site Operator
will be allowed to close roads for maintenance or repair operations as required.
5. The Site Operator shall, at a minimum, provide the following levels of access:
a. Continuous access on Critical Access Roads with short-duration (four [4]-hour
maximum) delay allowed during major storm events (precipitation greater than
1.45 inches per hour or 9.7 inches in twenty-four [24] hours). Snow shall be
removed from Critical Access Roads within twenty-four (24) hours.
b. Continuous access on Important Access Roads with intermediate duration (twentyfour
[24]-hour maximum) delay allowed during major storm events (precipitation
greater than 1.45 inches per hour or 9.7 inches in twenty-four [24] hours). Snow
shall be removed from Important Access Roads within seven (7) calendar days.
c. Continuous access on Non-critical Access Roads with long-duration (seven [7]
calendar-days maximum) delay. Snow need not be removed on Non-critical Access
Roads.
6. Additional personnel and equipment shall be under contract and/or onsite or at the
Site Operator's disposal to respond promptly during wet-weather operations. The Site
Operator shall enumerate these additional resources required for wet-weather operation
in the Annual Operations Work Plan required for submission under Section 6.3. In
the Annual Operations Work Plan, the Site Operator shall update the anticipated
requirements for wet-weather operations resources, and certify by a signed memorandum
that these resources are contracted for or will be onsite, or at the Site Operator's
disposal for the upcoming wet-weather season.
8.7 AMD Collection and Conveyance Systems
1. The Site Operator shall maintain the AMD collection and conveyance systems at a
minimum of 90 percent of the flow capacity in each conveyance element.
2. The Site Operator shall prevent any leakage that is beyond acceptable design tolerances
from the AMD collection systems and the AMD conveyance systems.
8.8 Brick Flat Pit
1. The Site Operator shall inspect, operate, and maintain the BFP Containment Dam in
compliance with all requirements of the State of California, Department of Water
Resources, Division of Safety of Dams (DSOD). To the best of EPA's knowledge, the
current structure meets all requirements of DSOD and has passed the most recent
annual inspection.
2. The Site Operator shall place HDS sludge in Brick Flat Pit at a minimum relative compaction
of 90 percent as measured by ASTM D 698. The final sludge surface at the end
of each sludge haul shall be graded to drain, at slopes less than 5 percent, toward the
filtrate riser pipes.
3. The Site Operator shall maintain all existing and planned drainage ditches, roads, and
drainage structures in the Brick Flat Pit and Subsidence Areas to ensure a minimum
90 percent flow capacity of the drainage system.
4. The Site Operator shall manage Brick Flat Pit in accordance with the existing LMRP
(Iron Mountain Mine 1999 Landfill Management Report and Plan) in 2000, and in conformance
with the annual revised LMRP.
8.9 Subsidence Areas
1. The Site Operator shall operate and maintain all existing subsidence area caps, including
the cracked ground areas and areas capped with shotcrete, in a manner that directs
the maximum surface runoff away from the subsidence areas and fracture zones. The
surface runoff shall be directed and controlled in a manner that does not result in detrimental
erosion or other detrimental effects.
8.10 Mine Workings
1. The Site Operator shall maintain and operate the Richmond Portal, the Lawson Portal,
and the Old/No. 8 Mine workings in a manner that ensures collection, conveyance, and
treatment of all AMD from these three components of the Designated Contaminant Discharges.
In the event that the Designated Contaminant Discharges' pathway changes, the
Site Operator shall install and maintain additional collection system(s) necessary to
ensure collection, conveyance and treatment of the Designated Contaminant Discharges.
2. The Site Operator shall inspect, maintain and operate the Richmond Adit, the 5-way,
and drifts in a manner that ensures near-continuous, safe entry into the Richmond Adit
from the portal to the 5-way, and for a distance of 65 feet from the 5-way into the
A Drift, B Drift, C Drift, and D Drift. After completion of the Richmond Adit and Drifts
Rehabilitation, the Site Operator shall also inspect, maintain and operate the Richmond
Adit, 5-way, and drifts in a manner to ensure safe entry, on a semi-annual, or more
frequent basis as needed, into the B Drift (for approximately 225 feet from the 5-way),
into the C Drift (for approximately 340 feet from the 5-way), into the proposed new 5-
way bypass drift connecting the Richmond Adit to the C Drift, and into the proposed
new cross-cut connecting the B Drift and the C Drift (at approximately 140 feet and 165
feet from the 5-way, respectively).
3. The actual lengths of adit and drifts to be maintained shall be determined after
completion of the rehabilitation construction.
4. The Site Operator shall maintain and operate the Lawson Mine workings in a manner
that ensures reliable, routine, safe entry into the Lawson adit from the portal to the collection
point approximately 550 feet from the portal, on a once-per-month or more frequent
basis, as needed.
5. The Site Operator shall maintain and operate the Old/No. 8 Mine Seep collection
system in a manner that ensures diligent, selective collection and conveyance of all
AMD discharges from the Old/No. 8 Mine Seep component of the Designated
Contaminant Discharges.
8.11 Clean Water Diversions
8.11.1 Upper Spring Creek Diversion
1. The Site Operator shall operate and maintain the Upper Spring Creek Diversion in a
manner that diverts stream flow, up to the maximum hydraulic capacity of the diversion,
from Upper Spring Creek to Flat Creek at all times, except as authorized or
directed by the Oversight Agency. The maximum hydraulic capacity of the diversion
currently equals approximately 850 cfs.
2. The Site Operator shall operate and maintain the Upper Spring Creek Diversion stilling
basin in a manner to settle out sediment particles 1/4 inch or greater in cross section at
all stream flow less than or equal to 1,000 cfs.
8.11.2 ROD1 Upper Slickrock Creek Clean Water Diversion
1. The Site Operator shall operate and maintain the ROD1 Upper Slickrock Creek Diversion
in a manner that diverts stream flow, up to the maximum hydraulic capacity of the
diversion, from Upper Slickrock Creek around the Slickrock Creek Basin to Lower
Slickrock Creek at all times, except as authorized or directed by the Oversight Agency.
The maximum hydraulic capacity of the diversion currently equals approximately
80 cfs.
2. The Site Operator shall maintain and operate the Upper Slickrock Creek Diversion
stilling basin in a manner that settles out sediment particles 1/4 inch or greater in cross
section.
8.11.3 ROD4 Slickrock Creek Clean Water Diversion
1. The Site Operator shall operate and maintain the Upper Slickrock Creek Diversion in a
manner that collects and conveys stormflow, up to the maximum hydraulic capacity of
the diversion, from Upper Slickrock Creek and South Fork Mountain around the Slickrock
Creek Basin and the SCRR to Lower Slickrock Creek. The maximum hydraulic
capacity, at the design depth of flow (70 percent of the pipe inside diameter), varies
from 520 cfs at the intake structure near the Slickrock Creek Tailings Dam to 610 cfs at
the SCRR spillway. These improvements will be constructed or modified as part of
ROD4 work under separate contract. Testing of improvements, as well as any shakedown
and startup Work, will be completed prior to turning over responsibility for
operation and maintenance by the Site Operator.
2. The Site Operator shall operate and maintain the Upper Slickrock Creek Diversion
stilling basin in the Catfish Pond area in a manner mat settles out sediment particles
1/8 -inch or greater in cross section. These improvements will be constructed or modified
as part of ROD4 Work under separate contract. Testing of improvements, as well as
any shakedown and startup Work will be completed prior to turning over responsibility
for operation and maintenance by the Site Operator.
8.11.4 Left-Side Water Diversions
1. The Site Operator shall operate and maintain the Left-Side Water Diversions in a manner
that collects and conveys all surface-water flow up to and including the peak
100-year surface water flow from the designated drainage areas. The areas are shown in
the design document Iron Mountain Mine, Slickrock Creek Water Diversions, Design Criteria
Report (SMC, March 1999). The peak 100-year design flows are given in the document
Draft Final Iron Mountain Mine Slickrock Creek Retention Reservoir Engineering Calculations,
Volume VI (SMC, April 2000). The Site Operator shall collect and convey contaminated
flow to the SCRR sedimentation basin or reservoir. The Site Operator shall direct relatively
clean surface-water flow out of the SCRR catchment area. These improvements
will be constructed or modified as part of ROD4 Work under separate contract. Testing
of improvements, as well as any shakedown and startup Work, will be completed prior
to turning over responsibility for operation and maintenance by the Site Operator.
2. The Site Operator shall operate and maintain the Left-Side Water Diversions in a manner
that reduces erosion and minimizes sedimentation of the SCRR, the SCRR sedimentation
basin, and Slickrock Creek. These improvements will be constructed or
modified as part of ROD 4 work under separate contract. Testing of improvements, as
well as any shakedown and startup work will be completed prior to turning over
responsibility for operation and maintenance by the Site Operator.
8.12 Boulder Creek Tailings Dam
1. The Site Operator shall modify the Boulder Creek Tailings Dam embankment and
spillway to ensure that storm flows are directed to the spillway and to provide spillway
capacity adequate to pass the peak 100-year storm flow (estimated at 1,650 cfs), as
detailed in Section 9.11.3.
2. After the Site Operator modifies the dam embankment and spillway as set forth above,
the Site Operator shall maintain and operate the Boulder Creek Tailings Dam, the Boulder
Creek streambed, and the hillslopes above the Boulder Creek streambed in a manner
that ensures the continuous capacity of the spillway to safely pass the peak 100-year
stormflow as per Table 14-2 in Section 14 of Response Action Contract No. 68-W6-0036,
EPA Work Assignment No. 038-LST-0917, Iron Mountain Risk Assessment, Dated March
2000.
8.13 Slickrock Creek Basin
1. For all items listed under this Section: These improvements will be constructed or modified
as part of ROD4 work under separate contract. Testing of improvements, as well as
any shakedown and startup Work, will be completed prior to turning over responsibility
for operation and maintenance by the Site Operator. During the Startup/Shakedown
Period, the Site Operator shall assist the Oversight Agency to solve operational problems
at the MFTP that arise during the Startup/Shakedown Period. After the Startup/
Shakedown Period, the Site Operator shall be responsible for operating and maintaining
the facilities and addressing design and construction defects.
2. The Site Operator shall operate and maintain the Slickrock Creek Dam and SCRR in
accordance with the requirements of the State of California, Department of Water
Resources, DSOD.
3. The Site Operator shall maintain and operate the SCRR in a manner that maximizes
operating efficiencies, defined as flow rate into the reservoir divided by flow rate out of
the reservoir.
4. To the maximum extent practicable, all inflow into the reservoir shall be continuously
discharged for treatment, with the exception of the dead pool storage.
5. The Site Operator shall not allow the reservoir to accumulate storage, except under
emergency conditions, treatment plant downtime, maintenance periods, or if the inflow
rate exceeds the design discharge flow rate.
6. The Site Operator shall operate the SCRR to achieve an MFTP maximum inflow rate
equal to 5,500 gpm. Under peak-flow operating conditions, the SCRR target maximum
operational discharge flow rate shall equal 3,250 gpm. The Site Operator shall increase
the SCRR operational discharge to a maximum flow rate of 4,000 gpm once the peak
AMD discharges from the Richmond and Lawson portals have safely declined from
peak-flow conditions.
7. During the detailed development of the SCRR O&M Manual, scheduled for completion
under separate contract in 2001 or 2002, the Oversight Agency may modify the SCRR
maximum target operational discharge flow rates under various conditions. The Site
Operator shall revise the O&M Work Plan in conformance with all modifications given
in the SCRR O&M Manual and such modifications will not be considered to be changes
to the Performance Standards or SOW.
8. The Site Operator shall maintain and operate the sedimentation basin in a manner that
ensures that the maximum grain size of materials discharged from the sedimentation
basin to the SCRR does not exceed 1.0 mm.
9. The Site Operator shall maintain and operate the SCRR in a manner that ensures that
the maximum grain size of materials discharged from the SCRR does not exceed
0.1 mm.
10. The Site Operator shall maintain and operate the upper hematite pile and lower hematite
pile tailings storage areas in a manner that minimizes erosion of the hematite into
Slickrock Creek.
8.14 Boulder Creek Slide Area
1. The Site Operator shall operate and maintain the horizontal drains in a manner that
maximizes collection of flow from the horizontal drains, controls the discharge from the
drains in a manner that minimizes infiltration of the drainage back into the hillside, and
minimizes erosion at the discharge locations.
2. The Site Operator shall operate and maintain the surface-water control ditches and
structures in a manner that maximizes the conveyance of surface-water flow away from
the Boulder Creek landslide area and minimizes erosion at the surface-water discharge
location.
8.15 Sampling Program
1. The Site Operator shall conduct the sampling program in conformance with Section 14,
Performance Standards and Verification Plan, and the approved QAPP.
8.16 Downgradient Property
1. The Site Operator shall provide for the long-term maintenance of the IMM remedial
action improvements at downgradient property locations, including the protection of
the Flat Creek embankments at the Iron Mountain Road crossing near the gate, adjacent
to the Rardin property, at the archeological site, and at the former Finazzo property, in a
manner that preserves or improves the existing (August 1,2000) condition of these
property improvements.
2. The Site Operator shall provide for long-term maintenance (or upgrade) of the Flat
Creek embankment protections immediately downgradient of the Upper Spring Creek
(USC) Diversion energy dissipation structure in a manner that preserves or improves the
existing (August 1,2000) condition of these embankment protections. It is important that
the embankment protections are maintained, and upgraded if necessary, to ensure that
the energy dissipation structure is not undermined by progressive erosion of the Flat
Creek channel.
3. The Site Operator shall perform emergency response actions related to the county road
and bridges that may be necessary to ensure access of personnel, supplies, and equipment
to the Site to ensure continuous performance of the IMM remedial action.
8.17 Mine Waste Disposal Facilities
1. The Site Operator shall provide for the long-term maintenance of each of the mine
waste disposal facilities constructed as part of the IMM Remedy (including the disposal
cell constructed upgradient from the Richmond Mill buildings area, the WR-8 and
WR-9 mine waste cell, the capped cell at Pond No. 2 at the Temporary Treatment Plant,
and the new muck disposal cell to be constructed under this SOW) consistent with the
original design and in a manner that preserves or improves the existing (August 1,
2000) function and condition of these facilities.
2. The Site Operator shall provide for long-term maintenance of the surface-water controls
constructed to minimize surface-water erosion of historic mine waste piles in the Slickrock
Creek and Boulder Creek basins in a manner that preserves or improves the existing
(August 1,2000) function and condition of these facilities. Improvements to facilities
in some of these areas will be constructed as part of ROD4 work under separate contract.
During the Startup/Shakedown Period of the SCRR improvements, the Site
Operator shall assist the Oversight Agency to solve operational problems at the MFTP
that arise during the Startup/Shakedown Period.
3. If a failure of an historic mine waste pile occurs, the Site Operator shall re-stabilize the
remaining mining waste in a manner consistent with the existing (August 1,2000)
function and condition of the waste pile. If such a failure occurs, the Site Operator shall
also remove, to the extent practicable as determined by the Oversight Agency, taking
into consideration economic and technical constraints, mining wastes from surface
waters that drain Iron Mountain, surface-water conveyances, roadways, or other features
of the EMM Remedy, and place the recovered mine wastes in a stable disposal
area, as approved by the Oversight Agency.
8.18 Failure to Attain Performance Standards
1. In the event that the Oversight Agency determines that modification to the O&M Work
Plan is necessary to meet applicable Performance Standards or other requirements of
this SOW, the Oversight Agency may notify the Site Operator that the Site Operator
shall modify the O&M Work Plan. The Site Operator may invoke the Dispute Resolution
procedure of the Consent Decree if it disputes the Oversight Agency's request for
modification.
2. Unless otherwise directed by the Oversight Agency, within sixty (60) days of receipt of
notice from the Oversight Agency that modification to the O&M Work Plan is necessary,
the Site Operator shall submit for approval by the Oversight Agency a
modification to the Work Plan that will achieve the Performance Standards or other
requirements of this SOW. The modified Work Plan shall also be submitted to the Support
Agency for review and comment. The modified Work Plan may call for, among
other things, additional response activities consistent with this SOW.
3. If RD or RA work activities are required to achieve Performance Standards or other
requirements of this SOW, the Site Operator shall achieve in a reliable and safe manner
as determined by the Oversight Agency, the Performance Standards and the design
criteria for the respective O&M Units and other requirements of this SOW.
4. Subject to Section 7.15 of this SOW and notwithstanding any action by the Oversight
Agency or other State or Federal agency, the Site Operator remains fully responsible for
achieving all Performance Standards and other requirements of this SOW.
5. Nothing in this SOW, or in the Oversight Agency's approval of any submission, shall
be, or be deemed to constitute, a warranty or representation of any kind by the
Oversight Agency that full performance of an approved RD, RA, Work Plan, or other
action will achieve the Performance Standards and other requirements of this SOW. The
Site Operator's compliance with such approved documents does not preclude the
Oversight Agency from seeking additional Work consistent with this SOW to achieve
the Performance Standards and other requirements of this SOW.(pg. 84)
9.15 Boulder Creek Cementation Plant
9.15.1 Unit Description
1. The Boulder Creek Cementation Plant (BCCP) was constructed around 1957 to treat
AMD discharges from the Richmond and Lawson mine workings. The plant was operated
intermittently through September 1994, at which time the MFTP was put into fulltime
service at the site.
9.15.2 O&M Requirements for the Boulder Creek Cementation Plant
1. The Site Operator shall inspect, operate, maintain, and repair the BCCP for use during
treatment plant downtimes or other emergency conditions. The Site Operator shall
maintain the piping, valves, miscellaneous equipment, and the plant structure. The Site
Operator shall have shredded iron materials onsite for use in processing AMD during
emergency conditions.(pg. 109)
14.9 Quality Assurance Oversight
14.9.1 Performance and System Audits
1. The Oversight Agency will implement and conduct audits of the QA procedures for
sample/data collection. The Oversight Agency will implement audits to evaluate the
execution of sample identification, sample control, chain-of-custody procedures, sample
log notebooks, sampling procedures, and onsite or offsite laboratory measurements.
2. The Oversight Agency will audit onsite or offsite laboratories. The laboratory audits
shall include analytical methodology QC procedures.
ATTACHMENT A
IMM ROD Components Not Implemented
ROD1
Component Selected In ROD (pp 64-65)
Up to 250 cfs of clean water to be diverted
from the South Fork of Spring Creek across
the drainage divide into Rock Creek, which
discharges into the Sacramento River below
Keswick Dam. The purpose of this alternative
is similar to the Upper Spring Creek diversion
and required a small diversion dam and 4,000
feet of pipeline to complete the conveyance of
flows to Rock Creek.
Spring Creek Debris Dam to be enlarged from
its present storage capacity of 5,800 acre feet
to 9,000 acre feet.
Perform hydrogeologic study and field-scale
pilot demonstration to better define the feasibility
of utilizing LDCC to minimize AMD
formation.
Component Implemented
This was not implemented.
This component was not implemented.
LDCC plugging was determined to not
be feasible.
O & M required
SOW?
No.
No.
No.
ROD2
All components implemented.
ROD3
All components implemented.
ROD4
Treatment plant upgrades will be completed by the end of September 2000. Other
improvements should be completed over the next two years.
III. THREATS TO PUBLIC HEALTH OR WELFARE OR THE ENVIRONMENT
A. Threats tg Publig Health or Welfare
The principal threats to public health or welfare posed by
the Site discharges are summarized below. A more in depth
discussion of the public health threats is contained in EPA's
Human Health Risk Assessment (PRC, 1991) which is contained in
the Administrative Record for the IMM Site (Boulder Creek OU,
1992, [1992 AR 2205]). With respect to the removal action
proposed in this memorandum, the principal threats to the public
health or welfare would arise from the discharge of untreated AMD
into surface waters related to lack of site access because of the
failure of the Flat Creek Bridge. As discussed below, the
threats to human health posed by the IMM AMD discharges are
expected to be low.
Under current conditions, the potential for direct human
exposure to AMD is relatively small. Persons who might come into
direct contact or consume concentrated AMD at Iron Mountain could
be at risk. Such persons include people working, living, or
hiking at the Site. Individuals who enter the Site are at risk
if they have direct contact with or ingest the AMD. The risk of
such exposure is currently limited by controlled access to the
mine Site. The property owner has posted the property to discourage
trespassers. The property is located between two heavily
used national forests, however, and direct exposure is a
possibility.
Persons who might come into direct contact with surface
water downstream from Iron Mountain include people working,
living, hiking, or swimming near the Site. Individuals who come
in direct contact with water or sediments from the main body of
Keswick Reservoir or Sacramento River are not currently at risk.
Persons who might consume surface water downstream from Iron
Mountain include people working, living, or hiking near the
Site . Persons who might consume fish taken from the Sacramento
River downstream from Iron Mountain include the general population
in the upper Sacramento River Valley. Individuals who
consume fish from the main body of Keswick Reservoir or
Sacramento River may currently be at some risk; the uncertainties
associated with this scenario are great and likely would result
in the risk being overestimated.
23
Children are at somewhat greater risk than adults when
considering noncancer toxicity resulting from incidental
ingestion of creek water downstream from Iron Mountain.
B. Threats to the Environment:
The principal threats to the environment posed by the Site
are summarized below. A more in depth discussion of the
environmental threats is contained in EPA's Environmental Risk
Assessment which is contained in the Administrative Record for
the IMM Site (Boulder Creek OU, 1992 [1992 AR 2563]). With
respect to the removal action proposed in this memorandum, the
principal threat to the environment would arise from the
discharge of untreated AMD related to lack of Site access because
of the failure of the Flat Creek Bridge.
The principal risks posed by the runoff of metals-bearing
AMD from Iron Mountain are the associated impacts on aquatic life
in the Spring Creek drainage, Keswick Reservoir, and the
Sacramento River downstream of Keswick Dam. Among these natural
resources, the most important are the fishery resources in the
Sacramento River downstream of Keswick Dam. Migratory
populations of chinook salmon, steelhead trout, resident trout,
and numerous other aquatic and terrestrial species can be or are
affected by AMD from Iron Mountain.
The salmon and steelhead trout populations have high
commercial and/or recreational value to the region. The susceptibility
of these populations to contaminants originating from
Iron Mountain has been documented (Wilson, 1982 [1992 AR 0371]).
One of the chinook salmon runs, the winter run, is a species
listed by the Federal Government and the State of California as a
species endangered with extinction.
Pollution from Iron Mountain is considered to be a major
factor causing the decline in Sacramento River fishery resources,
and an impediment to achieving fishery resource restoration
goals. Other major factors contributing to the decline include
loss of spawning habitat, predation, habitat degradation,
mortality at dams and diversions, overfishing, and natural
disasters (such as drought) (Vogel, 1989 [1992 AR 2561]). Fish
migrating into the uppermost river reach of the Sacramento River
risk being killed by AMD from Iron Mountain; offspring of adult
fish spawning in that reach have reduced chances of survival due
24
to the Iron Mountain AMD (Finlayson and Wilson, 1979 [1986 AR
0341]) . There is an indication that AMD from Iron Mountain has
reduced the suitability of available spawning grounds for salmon
in the uppermost reaches of the Sacramento River and that fish
population reductions have occurred following uncontrolled
spillage of Iron Mountain AMD (Finlayson, 1979, 1992 AR 0293) .
The greatest decline in salmon-spawning populations has occurred
within the uppermost river reach from Balls Ferry upstream to
Redding, a distance of approximately 26 river miles (NOAA, 1989
[Order 89-18 AR 0127]).
Since the late 1960s, when fish counts were initiated at Red
Bluff Diversion Dam (RBDD), each of the anadromous salmonid runs
has suffered major declines. A more extensive data base is
available specifically for fall-run chinook. This data base
demonstrates that recent levels of spawning escapement to the
upper Sacramento River are only about 50 percent of levels
observed during the late 1950s. The greatest decline among the
salmon runs has occurred for the winter run, which has been
reduced to less than 5 percent of run sizes during the late
1960s. This serious decline prompted the listing of this fish as
an endangered species.
The primary potential exposed fisheries populations are the
salmonids and steelhead trout present in the Sacramento River.
The upper Sacramento River chinook salmon runs, steelhead trout
run, and resident populations of rainbow trout have life history
characteristics that make them vulnerable to potential adverse
effects from AMD originating from Iron Mountain Mines. The
probability and magnitude of potential exposure depends on the
releases of contaminated water from SCDD, the releases of water
from Shasta Lake and Whiskeytown Reservoir, and the life stages
present within the zone of impact.
For spring- and fall-run chinook salmon, in a worst-case
scenario, approximately half of an entire year's fall spawning
production could be at risk from contaminants released from Iron
Mountain. The impact of the release depends in large part on the
pattern of releases from Shasta Lake and Whiskeytown Reservoir
relative to when releases occur from IMM. For example, flood
control releases from Shasta Lake could cause most of the year's
production to migrate downstream of the affected water quality
zone, thereby reducing the AMD's impact.
25
The steelhead trout and resident rainbow trout populations
that are potentially at risk are not well-defined or understood.
However, both the adult and yearling life phases are potentially
at risk because both are present in the river when fish kills
have historically occurred.
At present, a memorandum of understanding commits the USER
to operate SCDD in a manner that (when considering releases of
waters from CVP facilities, including Shasta Lake, Whiskeytown
Reservoir and Keswick Dam) will meet operation criteria for the
control of metal concentrations in the Sacramento River, provided
such operation would not cause flood control parameters on the
Sacramento River to be exceeded or interfere unreasonably with
other project requirements, and in light of the extreme releases
from the Site, to protect aquatic life in the Sacramento River
downstream of Keswick Dam. The USER must also operate Shasta Dam
to provide electric power, irrigation water, and flood control.
The USER estimated that it could incur significant losses of
revenues, depending on the level of protection required in the
Sacramento River, if special releases of CVP waters continue to
be relied on for purposes of diluting IMM contaminant
discharges. There is the potential that USER'S ability to supply
adequate dilution water will be further reduced due to conflicting
priorities for water use, thereby increasing the
potential risk to the aquatic community.
It is extremely difficult to quantify fish mortality in the
Sacramento River as a result of contamination from IMM. This is
due to a variety of factors, including the general size of the
Sacramento River downstream of Keswick Reservoir and the difficulty
of visually observing dying or dead fish during periods
when the water is turbid. However, there have been 39 documented
fish kills near Redding since 1940, and there have been
observations of adult steelhead mortalities near Redding attributable
to metal contamination from IMM since installation of the
SCDD.
Boulder Creek, Slickrock Creek, and Spring Creek are
currently devoid of fish and aquatic invertebrates below the mine
drainage area. Future response actions might restore some
aquatic life to those reaches of those creeks, but is possible
that the creeks or some portion thereof may remain sterile
following current remediation activities at Iron Mountain.
Aquatic populations, water column and benthic, in Keswick
26
Reservoir downstream of Spring Creek are at risk because of
sediment contamination, as well as water column contamination.
Below Keswick Dam, contaminant concentrations in the water column
occasionally exceed toxic concentrations for sensitive life
stages and frequently exceed both EPA and State of California
criteria to protect aquatic life, indicating that these populations
are also at risk. Access to the Site would likely
facilitate the future response actions to address these risks.
Terrestrial wildlife onsite has the potential for direct
exposure to AMD, such as deer drinking from contaminated creeks
or licking metals-laden salts along the flume system, or
consuming contaminated plants, fish, or other organisms. More
than 300 species of amphibians, reptiles, birds, and mammals can
be expected to occur in the Boulder Creek basin and downstream
areas that may be directly exposed to AMD.
IV. ENDANGERMENT DETERMINATION
Actual or threatened releases of hazardous substances from
this Site, if not addressed by implementing the response action
selected in this Action Memorandum, may present an imminent and
substantial endangerment to public health, or welfare, or the
environment.
V. PROPOSED ACTIONS AND ESTIMATED COSTS
The proposed action is to replace the damaged Flat Creek
Bridge on Iron Mountain Road to re-establish reliable access to
the Site prior to the upcoming winter wet season. The Flat Creek
Bridge suffered extensive damage during the 1997 New Year's Day
Storm. Replacement of the Flat Creek Bridge would assure
reliable long-term access to the Site. The proposed replacement
would consist of a clear span concrete deck bridge with abutments
founded on bedrock. This approach meets all modern design
standards, and would essentially eliminate failure due to flood
flows overtopping the bridge and failure due to scouring of
materials that support the bridge abutments.
Reliable site access is a critically important factor
necessary to assure the success of EPA's IMM remedial action.
Iron Mountain Road is the only means of access for treatment
plant operational personnel and the delivery of equipment and
supplies.
27
EPA has also evaluated three alternatives that would repair
the fifty year old bridge. EPA has determined that, although
these three repair alternatives would have lower associated cost
in the short term, two of the approaches are not technically
adequate and the third approach would not adequately assure
reliable site access. The first repair approach, Alternative A,
is the approach originally proposed by SMC in their May 1997
submittal to Shasta County DPW. The second repair alternative,
Alternative B, modifies SMC's original proposal to include the
construction of a new deck on top of the damaged existing bridge
deck (as proposed by SMC). The third repair, Alternative C,
would remove the damaged bridge deck, replace a new deck on the
existing abutments and piers, and also increase abutment and pier
scour protection beyond the measures contained in Alternatives A
and B.
A. Proposed Actions
1. Propoaed Action Description
The proposed action is to construct a new 67.5-foot long,
28-foot wide clear span concrete bridge. The new bridge will
comply with current California Department of Transportation
(Caltrans) standards and the Local Programs Manuals. The
existing Flat Creek Bridge will be demolished and a temporary bypass
will be constructed to allow residential and truck traffic
to pass over Flat Creek during construction.
The project location is depicted on the Location Map in
Appendix A. Refer to Appendix A, General Plan for the
preliminary design for the profile grade and elevation for the
proposed Flat Creek Bridge replacement. Refer also to Appendix A
for reference photographs of the existing Flat Creek Bridge and
storm damage from the 1997 New Year's Day Storm, and the
preliminary project schedule.
a. Construction of a Temporary Bypass
Prior to commencing construction on the replacement bridge,
a temporary bypass will be constructed in the-Flat Creek channel.
The bypass will be designed to support heavily loaded lime truck
traffic and also allow the passage of light duty vehicles of
plant personnel and limited residential traffic. Because the
construction schedule will extend to the start of the wet season
28
in early November 1997 the bypass will be designed with hydraulic
capacity that can conservatively pass typical early season storm
flows in Flat Creek. The preliminary design for the bypass
estimates that three 36-inch culverts would provide for adequate
hydraulic capacity.
b. Demolition of the Existing Flat Creek Bridge
The existing bridge, consisting of the concrete abutments,
two concrete piers and the reinforced concrete deck, must be
demolished and properly disposed.
The existing approach roadway base and paving is to be
removed and disposed. Clearing and grubbing of certain areas
will be required. Existing approach roadway rock slope
protection is to be removed and stored for later re-use.
c. Abutments
The bridge abutments will be founded on bedrock at each end
of the channel opening. The abutments will be designed to retain
the embankments and carry the vertical and horizontal forces from
the superstructure. The footings will be founded on bedrock to
prevent differential settlement and excessive horizontal
movement.
The selection of the appropriate type of abutment, and the
detailed elements of the design, will be determined based upon
field geotechnical evaluations to be performed during demolition
of the existing bridge and excavation of the embankment for the
abutments. Several types of abutments are potentially
appropriate for application at this site and the selection from
among appropriate designs will be made on the basis of
reliability and economics. For the Flat Creek bridge crossing,
the conditions of the rock in the embankments underlying the
abutments, the extent of the waterway opening, the channel area
and stream velocities will be important factors in determining
the required type of abutment.
d. Bridge Deck
The preliminary design for the Flat Creek Bridge replacement
provides for a 67.5-foot long, 28-foot wide clear span concrete
29
bridge. The design relies on a single span precast, prestressed
concrete slab.
Precast concrete has been widely used for replacing short to
medium span bridges. The advantages of using precast concrete
bridges are minimum traffic interruption due to the speed of
bridge erection, relatively low construction cost, minimum
maintenance, low span/depth ratio which helps to increase
vertical underclearance, and high quality control of concrete at
the plant. Construction quality control must assure that the
connection details between members are properly performed to
fasten concrete members together and to prevent any future
deteriorations at the joints.
The appropriate deck design will be determined once the
field geotechnical work has been performed and the type of
abutments have been determined.
e. Scour Protection. Roadway Approaches and Erosion Control
Rock slope protection will be constructed around the new
bridge abutments. The rock slope protection will be designed to
meet the requirements of Shasta County DPW for this clear span
bridge with abutments founded on bedrock. Additional embankment
protection will be provided for an approximate 50-foot long reach
of Flat Creek north of the bridge replacement.
Controls to prevent erosion during construction and to
prevent sedimentation while working in the stream channel will be
implemented. The approach roadways will be reconstructed. Items
or details, such as placing guard rails, required by the plans
and specifications that are necessary to meet Caltrans
requirements, will be performed.
2. Contribution to Remedial Performance
Replacement of the Flat Creek Bridge would assure reliable
long-term access to the Site. Reliable site access is a
critically important factor necessary to assure the success of
EPA's IMM remedial action.
EPA's IMM remedy relies on the effective treatment of the
concentrated IMM AMD discharges from the four major underground
mine workings at Iron Mountain. EPA estimates that treatment of
30
the concentrated discharges from these sources reduces the IMM
discharges of copper, zinc and cadmium by about 80 percent.
Iron Mountain Road is the only means of access to the Site.
All treatment plant operational personnel rely on Iron Mountain
Road and the Flat Creek Bridge to get to work. Iron Mountain
Road provides the only route of access for the delivery of
equipment and supplies. Reliable treatment operations require
the regular delivery of lime, the neutralizing agent relied on to
treat the IMM discharges. At peak AMD discharge rates, lime
storage capacity is limited to as little as four days of supply.
(a) Except as specified in subdivision (b), the procedures specified in Article 8 (commencing with Section 11435.05) of Chapter 4.5 of Part 1 of Division 3 of Title 2 of, and in Section 11513 of, the Government Code apply to the proceedings conducted by the board pursuant to this article.
(b) Notwithstanding subdivision (a), Sections 801, 802, 803, 804, and 805 of the Evidence Code apply to the proceedings conducted by the board pursuant to this article.
(c) The board may consider evidence presented by any person against whom a demand was made pursuant to subdivision (c) of Section 25372. The evidence presented by that person shall become a part of the record upon which the board's decision shall be based.
Nothing in this article shall require, or be deemed to require, pursuit of any claim against the board as a condition precedent to any other remedy.
(a) Compensation of any loss pursuant to this article shall preclude indemnification or reimbursement from any other source for the identical loss, and indemnification or reimbursement from any other source shall preclude compensation pursuant to this article.
(b) If a claimant recovers any compensation from a party in a civil or administrative action for a loss for which the claimant has received compensation pursuant to this article, the claimant shall reimburse the state account in an amount equal to the compensation which the claimant has received from the state account pursuant to this article. The Attorney General may bring an action against the claimant to recover the amount which the claimant is required to reimburse the state account, and until the account is reimbursed, the state shall have a lien of first priority on the judgment or award recovered by the claimant. If the state account is reimbursed pursuant to this subdivision, the state shall not acquire, by subrogation, the claimant's rights pursuant to Section 25380.
(c) The Legislature hereby finds and declares that it is the purpose of this section to prevent double recovery for a loss compensable pursuant to this article.
Compensation of any loss pursuant to this article shall be subject to the state's acquiring, by subrogation, all rights of the claimant to recover the loss from the party determined to be liable therefor. Upon the request of the board, the Attorney General shall commence an action in the name of the people of the State of California to recover any amount paid in compensation for any loss pursuant to this article against any party who is liable to the claimant for any loss compensable pursuant to this article in accordance with the procedures set forth in Sections 25360 to 25364, inclusive. Moneys recovered pursuant to this section shall be deposited in the state account.
(a) The board shall, in consultation with the department, adopt, and revise when appropriate, all rules and regulations necessary to implement this article, including methods that provide for establishing that a claimant has exercised reasonable diligence in satisfying the conditions specified in Sections 25372, 25373, 25375, and 25375.5, and regulations that specify the proof necessary to establish a loss compensable pursuant to this article.
(b) Claims approved by the board pursuant to this article shall be paid from the state account.
(c) The Legislature may appropriate up to two million dollars ($2,000,000) annually from the state account to be used by the board for the payment of awards pursuant to this article.
(d) Claims against or presented to the board shall not be paid in excess of the amount of money appropriated for this purpose from the state account. These claims shall be paid only when additional money is collected, appropriated, or otherwise added to that account.
T.W. ARMAN & IRON MOUNTAIN MINES, INC. INTERVENE - "TWO MINERS"
“The law assumes that property is always in the possession of its owner ….” Pennoyer v. Neff , 95 U.S. (5 Otto) 714, 727 (1877)
| 1793–1857 | 100% copper |
| 1857–1864 | 88% copper, 12% nickel (also known as NS-12 ) |
| 1864–1942 1946–1962 | bronze (94% copper, 6% tin and zinc) |
| 1943 | zinc-coated steel (also known as steel penny ) |
| 1944–1946 | brass (94% copper, 6% zinc) |
| 1974 | Experimental aluminum variety |
| 1962–1982 | brass (95% copper, 5% zinc) |
| 1982–present* | 97.5% zinc core, 2.5% copper plating |
Public Health Goal
A revised PHG of 300 ^g/L was developed for copper in drinking water, based on a review 1
of the scientific literature since the original PHG, in 1997 (OEHHA, 2008). Copper is an
essential nutiient in humans, and has not been shown to be carcinogenic in animals or
humans. However, young children, and infants in particular, appear to be especially
susceptible to the effects of excess copper.
The revised PHG of 300 pig/L is two orders of magnitude greater than the applicable
numeric chemical-specific standards identified in ROD 5 for the protection of freshwater aquatic life
(see Table 1). Therefore, the revised PHG for copper wUl have no impact on the
protectiveness of the remedies originally selected in the RODs for IMM.
By JOHN R. WILKE and SUSAN WARREN
Staff Reporters of THE WALL STREET JOURNAL
WASHINGTON -- The world's two biggest vitamin makers agreed to pay a total of $725 million to settle Justice Department charges that they and other manufacturers engaged in a massive price-fixing conspiracy that inflated the cost of everything from breakfast cereal to hamburgers over the past decade.
Hoffmann-La Roche Ltd., a unit of the Swiss drug giant Roche Holding AG that has 40% of the global human and animal vitamin market, agreed in U.S. District Court in Dallas to pay a record $500 million fine and plead guilty as part of the settlement. BASF AG, a major German chemical maker that has 20% of the market, will pay $225 million and enter a guilty plea as well.
Rhone-Poulenc SA of France, the world's third-biggest vitamin maker with 15% market share, also participated in the price-fixing ring. But the company began cooperating with federal investigators a few months ago under an amnesty program and helped make the case against its co-conspirators, U.S. officials said.
Members of the ring, including Rhone-Poulenc, also face potentially massive damage claims in 25 private lawsuits now pending in four federal courts. The suits were brought by livestock farmers and other purchasers of bulk vitamins who allege they were forced to pay illegally inflated prices. The first of these cases was filed in U.S. District Court in Washington, D.C., in March 1998.
Wide Effect Cited
The cartel "is the most pervasive and harmful criminal antitrust conspiracy ever uncovered," declared Joel Klein, chief of the Justice Department's antitrust division. The price-fixing ring "hurt the pocketbook of virtually every American consumer, anyone who took a vitamin, drank a glass of milk, or had a bowl of cereal," he said.
10 largest fines secured by the U.S. Justice Department in antitrust cases. |
Company |
Fine (millions) |
Year |
Industry |
| Roche Holding | $500 | 1999 | Vitamins |
| BASF | 225 | 1999 | Vitamins |
| SGL Carbon | 135 | 1999 | Electricity conductors |
| Ucar International | 110 | 1998 | Electricity conductors |
| Archers Daniels Midland | 100 | 1996 | Feed supplements, food additives |
| Bayer | 50 | 1997 | Food additives |
| HeereMac | 49 | 1997 | Offshore oil and gas construction services |
| Showa Denko Carbon | 33 | 1998 | Electricity conductors |
| Fujisawa Pharmaceutical | 20 | 1998 | Industrial cleaners |
| Dockwise | 16 | 1997 | Offshore oil and gas construction, transportation |
A New York state appeals court is scheduled to hear arguments on Sept. 14 that American International Group's (AIG) auditor failed to unearth the alleged fraud the company perpetrated and should be held liable for it.
In the case, a Delaware court threw out a suit, Teachers Retirement System of Louisiana v. American International Group, because it was determined that AIG employees committed the fraud and the auditor, PricewaterhouseCoopers should not be held negligent for failing to identify the fraud.
However, the Delaware court passed the issue of auditor liability to the New York Court of Appeals to resolve questions in that state's law over whether professional malpractice/negligence suits are barred against an auditing firm under the doctrine of “in pari delicto” or at mutual fault.
The Delaware court asked the New York court to decide if a suit can be brought against an auditing firm that was not a participant in the corporation's fraud but failed “to satisfy professional standards in its audits of the corporation's financial statements.”
The Supreme Court of Delaware said it would take no further action until after the New York court makes a decision.
The questions stem from illegal accounting actions taken by AIG dating back to 1999, including the company's sham reinsurance contract with Gen Re to cover-up company losses.
Stuart Grant, with the law firm Grant & Eisenhofer, will be representing the plaintiffs in the case.
SAN FRANCISCO (CN) - The Sierra Club and WildEarth Guardians claim the U.S. Environmental Protection Agency violated the Clean Air Act by failing to ensure that six states meet national air quality standards. And the EPA failed to take final action on clean-air plans submitted by 13 other states and the District of Columbia, according to the federal complaint.
The EPA found in 2008 that six states and three U.S. territories failed to submit implementation plans for National Ambient Air Quality Standards, and failed to issue federal implementation plans for North Dakota, Hawaii, Guam, American Samoa, Northern Mariana Islands, Alaska, Idaho, Oregon and Washington, the environmental groups say.
And the EPA never took final action on plans submitted by Maryland, Virginia, Delaware, Arkansas, New Mexico, Oklahoma, Florida, Georgia, Texas, Nevada, North Carolina, Tennessee, Washington, D.C. and West Virginia.
EPA approvals are required under to Clean Air Act, to limit levels of pollutants such as carbon monoxide, lead and ozone.
The groups ask the court to order the EPA to implement the "long-overdue" standards under the Clean Air Act.
They are represented by Kristin Henry with the Sierra Club's
Environmental Law Program in San Francisco.
OTHER ENVIRONMENTAL JUSTICE COMMUNITIES
In Hilao , the Ninth Circuit recognized that “serious questions” as to whether this method comported with due process, but nonetheless concluded that due process was provided. Id. (citing Hilao, 103 F.3d at 786). “The defendant's interest was in the aggregate amount of damages; thus, provided that the average was properly calculated, it was of no consequence to defendant that some plaintiffs would have been entitled, in individual adjudications, to more or less than this average.” Id. (citing Hilao , 103 F.3d at 786). The Ninth Circuit concluded that plaintiffs had an “enormous” interest in the use of averages since individual adjudications were infeasible; and the Hilao court concluded that balancing these interests under Connecticut v. Doehr , 501 U.S. 1, 10-11 (1991) and Mathews v. Eldridge , 424 U.S. 319 (1976), the method did not offend the Due Process clause. Id.
The court in Adoma cited the Ninth Circuit's recent en banc opinion in Dukes v. Wal-Mart , affirming the continuing validity of Hilao . Dukes v. Wal-Mart , 603 F.3d at 625-27:
Id. *7.
The court concluded that “the types of arguments are common to all class members” and that “ Hilao appears to permit a representative inquiry to determine the magnitude of these effects, and at this stage, the court cannot distinguish Hilao.” Id. *8. The court also found that the “question of whether the Avaya system gave defendants at least constructive knowledge of the employee overtime is a common question.” Thus it concluded that common questions predominate.
Order
The court thus granted plaintiffs' motion for class certification, defining the classes as follows:
ADVERSE CLAIMS - DEFAMATION OF CHARACTER - STIGMATIC INJURY - ILLEGITIMATE ANIMUS - LIBEL & SLANDER
CONCURRENT JURISDICTIONS & CLASS ACTION FAIRNESS ACTION -"TWO MINERS (A HUNDRED MEMBERS) & 8000 ACRES OF LAND"
Structure of Cooperative Utility Model
One model for replacing Fannie Mae and Freddie Mac that has so far received frequent
mention but little sustained analysis is the lender cooperative utility. Yet while each different model
for a successor to the GSEs has its own strengths and weaknesses, a private lender cooperative
utility may provide the best overall solution based on the design principles listed earlier. Under this
model, securitization would be carried out by a mortgage securitization cooperative that would be
mutually owned by a membership consisting of financial institutions engaged in residential mortgage
lending. Cooperative or mutual structures have existed for more than a century in the U.S. financial
system, ranging from clearing houses (e.g. CME until 2000, DTC, CLS, ICE Trust), banking (e.g.
mutual savings banks, credit unions and the FHLB system) and agricultural finance (e.g. the Farm
Credit System). The main goal of a cooperative is to provide services to its members
The office of reformer of the superstitions of a nation, is ever dangerous. Jesus had to walk on the perilous confines of reason and religion; and a step to the right or left might place him within the grasp of the priests of the superstition, a bloodthirsty race, as cruel and remorseless as the being whom they represented as the family God of Abraham, of Isaac and of Jacob, and the local God of Israel. They were constantly laying snares, too, to entangle him in the web of the law. He was justifiable, therefore, in avoiding these by evasions, by sophisms, by misconstructions and misapplications of scraps of the prophets, and in defending himself with these their own weapons, as sufficient ad homines, at least. That Jesus did not mean to impose himself on mankind as the son of God, physically speaking, I have been convinced by the writings of men more learned than myself in that lore. But that he might conscientiously believe himself inspired from above, is very possible. The whole religion of the Jew, inculcated in him from his infancy, was founded in the belief of divine inspiration. The fumes of the most disordered imaginations were recorded in their religious code, as special communications of the Deity . . . Elevated by the enthusiasm of a warm and pure heart, conscious of the high strains of an eloquence which had not been taught him, he might readily mistake the coruscations of his own fine genius for inspirations of an higher order. This belief carried, therefore, no more personal imputation, than the belief of Socrates, that himself was under the care and admonitions of a guardian Daemon. - Thomas Jefferson
CONTACT:
Stacy Kika
202-564-0906
202-564-4355
FOR IMMEDIATE RELEASE
September 15, 2010
EPA to Transition Climate Leaders Program
WASHINGTON - The U.S. Environmental Protection Agency (EPA) announced that it will phase down services the agency offers under its Climate Leaders program over the coming year and encourage participating companies to transition to state or non-governmental programs. Factoring into the agency's plans for the program are the many new developments in regulatory and voluntary programs that address greenhouse gas (GHG) emissions, including the first-ever mandatory greenhouse gas reporting rule that took effect on January 1, 2010. In addition, several states and non-governmental organizations (NGOs) now offer climate programs that are now robust enough to serve companies in the Climate Leaders program.
As EPA phases down services the agency provides under the program – including technical assistance and setting greenhouse gas reduction goals – the agency will also take steps to assist the transition of the partners into non-federal programs that will allow them to go above and beyond mandatory reporting requirements to meet their goals. The agency will work with these programs to continue to stay involved in important initiatives related to corporate greenhouse gas accounting and to support companies' actions to reduce their GHG emissions, in particular through other EPA programs such as Energy Star and the Green Power Partnership. The agency will also seek new ways to promote, support and recognize climate leadership.
EPA is confident that this transition will allow the agency to realign resources to better assist companies in learning from the emissions data collected under the Greenhouse Gas Reporting Program. This data will facilitate the exchange and application of best practices and innovative technologies across a wide range of industries. EPA's other voluntary programs will remain in place and continue to work with partner organizations to reduce emissions and increase sustainability.
Climate Leaders was started in 2002 as a voluntary program for organizations to complete a corporate-wide greenhouse gas inventory, set a reduction goal and meet that goal.
CONTACT:CONTACTO:
Jalil Isa
isa.jalil@epa.gov
202-564-3226
202-564-4355
PARA PUBLICACIÓN INMEDIATA
15 de septiembre de 2010
Representantes de 36 gobiernos se reúnen en México. Agenda: reducir gases de efecto invernadero y energía limpia
Administradora Lisa P. Jackson y Ministros adelantan la cooperación para la reducción de metano
WASHINGTON – La Administradora Lisa P. Jackson de la Agencia de Protección Ambiental de EE.UU. (EPA, por sus siglas en inglés) se unirá a los ministros de los países que forman la Asociación de Metano al Mercado (Methane to Markets ). Esta reunión se dará lugar el 1 de octubre en la Ciudad de México. Durante la reunión, EE.UU. colaborará con otros países socios para promover acción global con el objetivo de reducir las fuentes de emisiones de metano y para identificar recursos adicionales para alcanzar esta meta. El metano es un gas de efecto invernadero (GHG) que es 20 veces más potente que el dióxido de carbono en su capacidad de calentar la atmósfera.
“Con el metano y otros contaminantes dañando la atmósfera del planeta, es una prioridad doméstica e internacional, la cual requerirá la ayuda de todos los países para hacerle frente al cambio de clima y para lograr mejorar la calidad de aire,” dijo la Administradora Lisa P. Jackson. “La asociación de Metano al Mercado ha gozado de tremendos logros en este esfuerzo. Estoy animada a participar en nuestra reunión en octubre al igual que continuar nuestra labor para que juntos podamos reducir las emisiones de metano a nivel mundial.”
La reunión, en la cual EPA y la Secretaría de Medio Ambiente y Recursos Naturales de México servirán de anfitriones, también celebrará los logros de la asociación. Éstos incluyen el apoyo de más de 300 proyectos para la reducción de emisiones de metano por todo el mundo. Los proyectos, cuando estén completos, ayudarán reducir las emisiones de GHG en una cantidad equivalente a lo que emiten 11.4 millones de automóviles anualmente. Se espera que los ministros reafirmen sus compromisos a tomar fuertes medidas de acción mundial para combatir el metano durante cinco años más.
La Asociación de Metano al Mercado reduce las emisiones de GHG promoviendo la recuperación y el uso de metano de manera eficiente a través de proyectos globales. Dichos proyectos también son importantes porque proveen nuevas fuentes de energía limpia, a la vez que mejoran la calidad del aire y agua. Desde el 2004, la asociación ha resultado ser uno de los esfuerzos internacionales más efectivos para la reducción de emisiones de gases de efecto invernadero. La asociación ha crecido de 14 a 36 países socios los cuales representan el 70 por ciento de las emisiones de metano alrededor del mundo. Más de 1,000 organizaciones del sector privado y público también se han unido hasta la fecha.
La asociación ha contado con casi $360 millones en inversiones de compañías privadas e instituciones financieras. EPA estima que si la tecnología actualmente disponible para llevar a cabo la reducción de metano se implementa completamente alrededor del mundo, la reducción de emisiones anuales de GHG en una cantidad equivalente a 280 millones de autos pudiera lograrse para el año 2020 a un costo relativamente bajo.
Más información de la asociación: http://methanetomarkets.org/spanish.aspx
Más información sobre las prioridades internacionales de EPA (en inglés): http://www.epa.gov/international/topsix.html
You are subscribed to HQ: International News Releases for U.S. Environmental Protection Agency. This information has recently been updated, and is now available .
U.S. Department of Justice
and the
Federal Trade Commission
Issued: August 19, 2010
EJECTMENT FROM FLAT CREEK MINING DISTRICT, DEBARMENT COMMISSION. FOR T.W. ARMAN
This strategy is by no means the end of the discussion; it is the beginning of a more meaningful conversation with our watershed partners and the first step together on a new path towards more sustainable and safe watersheds and communities.
A NEW PATH TO SAFE WATERSHEDS, SOS, SAFE ON SOIL
The purpose outlined in the SWR—drinkable water—is not new . In fact, this strategy is about how we can achieve a leap forward in our nation's watersheds to realize this purpose.
In 23(b)(1) , 23(b)(3) Class , CAFA , Certification , Extrapolation on September 6, 2010 at 2:17 am
The first step is to improve transparency. Americans have a right to know how their government is doing in enforcing laws to protect the nation's water, and government has an obligation to clearly inform the public about water quality and our actions to protect it. An informed public is our best ally in pressing for better compliance. Therefore I am directing you to improve and enhance information that is available through the EPA web site on compliance with the Clean Water Act and the level of enforcement activity in each state, showing connections where possible to local water quality. This information should be user-friendly and provide a way to look at performance of individual businesses as well as state and national performance. State-by-state performance reports that have already been released under the Freedom of Information Act should also be posted to the web, together with tools to analyze the data EPA prepared for those reports.
Second, we need to raise the bar for clean water enforcement performance. We must make sure that strong and effective action is taken when serious violations of law threaten water quality, and we must boost EPA's enforcement presence against serious violators, recognizing that authorized states have the first opportunity to act. EPA must also improve its own enforcement performance in states where EPA directly implements the clean water program. And we must assure that we are doing the work that is most important to clean up our nation's waters. Because EPA and the states face significant and competing demands for resources, we need to place a high priority on the problems that have the biggest impact on water quality, such as wet weather pollution, which are not currently well represented in the information we have on Clean Water Act compliance.
Third, we need to move EPA's information technology into the 21st century. We need to transform EPA to be not only a collector and disseminator of information but an analytical resource that can present information in a form that is easily understood and useable by the public. We have seen that when information is made public, it can be a powerful tool to help improve the environment directly. We need to launch into a major shift of EPA's Clean Water Act information systems – so that data on both facilities' discharges and compliance and water quality and other environmental conditions will be readily available and transparent to both federal and state regulators and the public, over the web, on a real-time basis.
So that we can identify the concrete steps that EPA should take to accomplish these goals, I am directing you to work with the Office of Water to develop an action plan to further enhance public transparency regarding EPA and state Clean Water Act enforcement program performance, to strengthen that performance, and to transform our water quality and compliance information systems. A critical part of this process should be close consultation with EPA Regional Offices and with states, including the Environmental Council of the States (ECOS) and the Association of State and Interstate Water Pollution Control Administrators (ASIWPCA). You should gather the best ideas from the states and regions, as well as outside stakeholders, and report back to me within 90 days with your recommendations.
cc: Scott Fulton
Diane Thompson
Bob Sussman
Mike Shapiro
Assistant Administrators
Associate Administrators
Regional Administrators
The Army Corps of Engineers is putting solar panels on nine dams in California, and the Department of Homeland Security will include rain gardens and other green landscaping
Last Update: July 24, 2010 This page compares maximum contaminant levels (MCLs) and public health goals (PHGs).
Posted by the EPA on August 20th, 2010 - 11:58 AM
Local Governments
Several local governments have developed local wetlands management plans. See the links for the following communities.
The War Against Mountaintop Mining Heats Up
RELATED REPORTS
Special Publication 103 (Revised 1999): Mines and Mineral Producers Active in California (1997-
1998); by Department of Conservation, Division of Mines and Geology in cooperation with
Department of Conservation, Office of Mine Reclamation
NCP, 40 CFR§300.435(f)(2), states, “A remedy becomes ‘operational and functional’ either one year after construction is complete, or when the remedy is determined concurrently by EPA and the State to be functioning properly and is performing as designed, whichever is earlier.
A Cu-Zn-Fe-Pt-Ti mine located in secs. 26, 27, 34 & 35, T33N, R6W, MDM, about 4 miles NNW of Keswick and 9½ miles NW of Redding.
THE FOLLOWING INFORMATION IS FROM THE USGS WEBSITE (FORMERLY THE U.S. BUREAU OF MINES RECORDS)
Producer in Shasta county in California, United States with commodity Iron
Ownership information
| Owner-Operator | Iron Mountain Mine, Ltd. | 1989 |
| Deposit | CALIF. DIV. MINES AND GEOL. SPECIAL PUBL. 103, 1990. |
| Deposit | IRON MINED USED IN CEMENT |
| 23-NOV-1994 | U.S. Bureau of Mines |
| 2010-08-18 13:14:48 |
Mineral Resources > Online Spatial Data > Mineral Resource Data System (MRDS)
The Richmond Mine at Iron Mountain, Shasta County, California, USA provides an excellent opportunity to study the chemical and biological controls on acid mine drainage (AMD) generation in situ , and to identify key factors controlling solution chemistry.
ORGANIC BASE SILICATES
Since silica dissolves above about pH 10.7-11.0, silicates can ber prepared with organic bases. Merrill and Spencer reported the preparation of a number of water-soluble quaternary ammonium silicates by grinding silica gel with a solution of the free base. However, the compounds all appear to have a ratio of 2:1 when expressed by analogy with the alkali metal system.
COMPLEX METAL ION SILICATES
Numerous metal polyamine silicate compositions can be formed with amines including copper, iron, zinc, magnesium, manganese, and molybdenum.
HUMIC ACIDS
Humic acid from decaying vegetation is believed to have a structure related to fulvic acid, which has adjacent hydroxyl groups on an unsaturated six-membered carbon ring and forms chelates with silicon. The soluble chelate with ammonium humate has been used to supply silicon as a nutrient to rice plants, which require silicon for their structure.
(not for marijuana cultivation) no smoking
Symptoms of mineral deficiency in soil
| Element | Deficiency symptoms | Probable cause and ordinary remedy |
| Nitrogen | Growth is poor; shoots are short; leaves are small; and yellow brassicas turn pink then orange. Fruit or tubers are small. |
As an immediate booster, spray with diluted liquid seaweed or fish fertiliser. Incorporate as much compost and manure as possible. |
Phosphorus |
Root development and flower bud formation are poor, and plants sometimes also show symptoms similar to that of nitrogen deficiency. Brown spots may appear on leaves, or leaf edges may turn brown. Fruit has an acid flavour. | Bonemeal is rich in phosphorus. Incorporate 120 g per square metre before planting. The deficiency appears more often in acid soils. |
| Potassium | Growth becomes stunted, and leaves turn a dull bluegreen, with browning at the leaf tips or leaf margins, or showing as blotches. Leaves of broad-leaved plants curl downwards. |
Most often seen on light, sandy soils. Comfrey tea is high in potassium; dilute 1 part tea to 15 parts water and apply to soil. Wood ash is high in potassium. |
| Magnesium | Magnesium deficiency shows either as a loss of colour or as a mottling of red, orange, brown and purple tints. | Excessive potash application may be responsible. Spray with a solution of Epsom salts (250 g in 12 litres water). If liming soil, apply dolomite, which is rich in magnesium as well as calcium, or green sand. |
| Manganese | Manganese deficiency occurs in sandy and alkaline soils, frequently in combination with iron defi ciency. Chlorosis (loss of colour) begins on older leaves. The leaves of green peas develop brown patches. Beetroot leaves have red-brown speckling. | This is most evident in poorly drained soils. Lift beds to improve drainage. Overliming can also be responsible. Never apply manganese to soils with a pH below 6. |
Iron |
Chlorosis (loss of colour) occurs on young shoot tips and leaves, while the veins remain green. Eventually, shoots die back. This condition usually occurs in alkaline soils, which prevent plants from absorbing iron. |
Sequestered iron (iron EDTA) used as a foliar spray produces rapid results. Check soil pH and acidify with sulphur and regular compost additions. |
| Boron | The roots of beetroots, swedes and turnips turn brown. Cauliflower curds also turn brown. Brown cracks appear across the stalks of celery. Apple cores become ‘corky'. The growing points of plants die off. | Mix 30 g borax with sand and disperse evenly over 18 square metres of soil. Or spray crops fortnightly with liquid seaweed fertiliser. Overliming can cause this problem. |
Molybdenum |
Leaves, particularly of broccoli and cauliflowers, develop a disorder known as whiptail. Leaves become distorted and shrink back to the midrib, giving a tail-like appearance. On tomatoes, leaves become mottled and roll forward. | Apply ground dolomite to acidic soils. Add kelp meal to soil. For a short-term remedy, apply sodium molybdate at 30 g per 8 litres water. This will treat 8 square metres of soil. |
| Calcium | This shows most commonly in tomatoes and capsicums as a darkened, shrivelled end on fruit. It also causes bitter pit in apples. | Uneven soil moisture causes a failure of calcium uptake from the soil. This is particularly evident in pot-grown plants and in light soils. Water regularly. To add calcium, incorporate crushed eggshells into compost. |
TRY AG-GEL!
Ag-Gel micronutrient with soluble silicate offers growers these performance benefits in agricultural applications:
Reduces disease pressure.
Provides resistance to mineral stress.
Decreases climate stress.
Improves plant strength.
Increases growth and yeild.
Ag-Gel micronutrient with silicate reduces the stress from diseases including powdery mildew, pythium root rot, and rice blast. It resists or prevents toxicity from phosphorous, manganese, aluminum, and iron, and increases plant tolerance to salt.
Application of Ag-Gel micronutrient with soluble silicate improves leaf erectness, reduces susceptibility to lodging in grasses, and improves photosynthesis efficiency.
Crops that have demonstrated benificial responses to Ag-Gel micronutrient with soluble silicate application include rice, wheat, barley, sugar cane, tomatoes, beans, cucurbits, strawberries, grapes, roses, apples, grass, and ornamental plants.
Ag-Gel micronutrient with soluble silicate can increase growth and yield by providing micronutrients and by reducing susceptibility to diseases and pests.
Iron in Plants
Iron is a absorbed by plant roots as Fe²+ and Fe³+. The chemical properties of iron making it an important part of oxidation-reduction reactions in both soils and plants. Because iron can exist in more than one oxidation state, it accepts or donates electrons according to the oxidation potential of the reactants. The transfer of electrons between the organic molecule and iron provides the potential for many of the enzymatic transformations. Several of these enzymes are involved in chlorophyll synthesis, and when iron is deficient chlorophyll production is reduced, which results in the characteristic chlorosis symptoms of iron stress.
Iron is a structural component of porphyrin molecules. These substances are involved in band oxidation-reduction reactions in respiration and photosynthesis. As much as 75% of the total cell iron is associated with chloroplast, and up to 90 percent of the iron in the leaves occurs with lipoprotein of the chloroplast and the mitochindria membranes.
The sufficiency range of time in plant tissue is normally between 50 and 250 ppm. and in general, when iron contents are 50 ppm or less in the dry matter, deficiency is likely to occur. Iron deficiency symptoms show up in the young leaves of plants, first because iron does not readily translocate from older tissues to the tip meristem; as a result, growth ceises. The young leaves develop an interveinal chlorosis, which progresses rapidly over the entire leaf. In severe cases the leaves turn entirely white. Iron toxicity can be observed under certain conditions. For example, in rice grown on poorly drained or submerge soils, a condition known as a bronzing is associated with greater than 300 ppm iron levels in rice leaves at telling.
Iron in soil
Mineral Fe. Iron comprises 5% of the earth's crust and is the fourth most abundant element in the lithosphere. Common primary and secondary iron minerals are olivene, siderite, hematite, goethite, magnetite, and limonite. Iron can be either concentrated or depleted during soil development; thus, iron concentrations in soil vary widely, from 0.7 to 55%. Most of the soil iron is found in primary minerals, clays, oxides, and hydroxides.
Forms and functions of Calcium in plants.
Ca is absorbed by plants as Ca²+ from the soil solution and is supplied to the root surface by mass flow and root interception. Ca deficiency is uncommon but can occur in highly leached and unlimed acidic soils. In soils abundant in Ca²+, excessive accumulation in the vicinity of roots can occur.
Ca²+ concentration in plants range from 0.2 to 1.0%. Ca is important in the structure and permeability of cell membranes. Lack of Ca²+ causes a breakdown of membrane structure, with resultant loss in retention of cellular diffusible compounds. Ca enhances uptake of NO3 and therefore is interrelated with N metabolism. Ca²+ provides some regulation in cation uptake. For example, studies have shown that K+ and Na+ uptake are about equal in the absence of Ca²+, but in its presence, K+ uptakes greatly exceeds Na+ uptake.
Ca is essential for cell elongation and division, and Ca²+ deficiency manifests itself in the failure of terminal buds of shoots and apical tips of roots to develop, which causes plant growth to cease. In corn Ca²+ deficiency prevents the emergence and unfolding of new leaves, the tips are almost colorless and are covered with sticky gelatinous material that causes them to adhere to one another. In fruits and vegetables, the most frequent indicator of Ca²+ deficiency consists of disorders in the storage tissues. Examples of Ca²+ disorders are bloom-end rot in tomato and bitter pit of apples. Finally, Ca²+ is generally immobile in the plant. There is very little translocation of Ca²+ in the phloem, and for this reason there is often a poor supply of Ca²+ to fruits and storage organs. Downward translocation of Ca²+ is also limited in roots, which usually prevents them from entering low-Ca soils.
Conditions impairing the growth of new roots will reduce root access to Ca²+ and induce deficiency. Problems related to inadequate Ca²+ uptake are more likely to occur with plants that have smaller root systems than with those possessing more highly developed root systems.
Special attention must be given to the Ca²+ requirements of certain crops, including peanuts, tomatoes, and celery, which are often unable to obtain sufficient Ca²+ from soils supplying adequate Ca²+ for most other crops. Proper Ca²+ supply is important for tree fruits and other crops such as alfalfa, cabbage, potatoes, and sugar beets, which are known to have high Ca²+ requirements.
Ca in Soil
The Ca concentration in the earth's crust is about 3.5%; however, the Ca²+ content in soils varies widely. Sandy soils of humid regions contain very low amounts of Ca²+, whereas Ca²+ normally ranges from 0.7 to 1.5% in noncalcareous soils of humid temperate regions; however, highly weathered soils of the humid tropics may contain as little as 0.1 to 0.3% Ca. Ca levels in calcareous soils vary from less than 1% to more than 25%.
Calcium concentrations in the soil higher than necessary for proper plant growth normally have low affect on the Ca²+ uptake, because Ca²+ uptake, is genetically controlled. Although the concentration of the soil solution is about 10 times greater than that of potassium, it's a uptake is usually lower than that a potassium. Plants capacity for uptake is limited because it can be absorbed only by young root tips in which the cell walls of the in the endodermis are still unsuberized.
As a general rule, course-textured, humid-region soils formed from rocks low in calcium minerals are low in calcium. The fine-textured soils formed from rocks high in calcium are much higher in both exchangeable and total calcium. However, in humid regions, even soils formed from limestone are frequently acetic in the surface layers because of the removal of calcium and other cations by excess leaching. As water containing dissolved CO2 percolates through the soil, the H + forms displaces Ca²+ (and other basic cations) on the exchange complex. If there is considerable percolation of such water through the soil profile, soils gradually become acidic. When leaching occurs, Na+ is lost more readily than Ca²+, however, since exchangeable and solution Ca²+ is much greater than Na+ in most soils, the quantity of Ca²+ lost is also much greater. Calcium is often the dominant cation in drainage waters, springs, streams, and lakes. Leaching of calcium ranges from 75 to 200 lbs. per acre per year. Since Ca²+ is absorbed on the cation exchange capacity (CEC), losses by erosion may be considerable in some soils.
Copper in plants.
Cu is absorbed by plants as the cupric ion, Cu²+, and may be absorbed as a component of either natural or synthetic organic complexes. It's normal concentration in plant tissue ranges from 5 to 20 ppm. Deficiencies are probable when Cu levels in plants fall below 4 ppm in the dry matter.
Symptoms of Cu deficiency vary with crop. In corn the youngest leaves become stunted, and as the deficiency becomes more severe, the young leaves pale and the older leaves die back. In advanced stages, dead tissue appears along the tips and edges of the leaves in a pattern similar to that of K deficiency. Cu-deficient small-grain plants lose color in young leaves, which eventually break, and the tips die. Stem melanosis and take-al root rot disease occur in certain wheat varieties when Cu is deficient. Also ergot infection is associated with Cu deficiency in some wheat and barley varieties. In many vegetables crops the leaves lack turgor. They develop a bluish-green cast, become chlorotic, and curl, and flower production fails to take place.
Cu in it's reduced form readily binds and reduces O2. In the oxidized form the metal is readily reduced, and protein-complexed Cu has a high redox potential. Enzymes that create complex polymers such as lignin and melanin exploit these properties of Cu. Cu is unique in its involvement in enzymes, and its cannot be replaced by any other metal ion.
Toxicity symptoms include reduced shoot vigor, poorly developed and discolored root systems, and leaf chlorosis. The chlorotic condition in shoots superficially resembles Fe deficiency. Toxicities are uncommon, occurring in limited areas of high Cu availability; after additions of high-Cu materials such as sewage sludge, municipal composts, pig and poultry manure's, and mine wastes; and from repeated use of Cu-containing pesticides.
Copper in soil.
Cu concentration in the earth's crust average about 55 t0 70 ppm. Igneous rocks contain 10 to 100 ppm Cu, while sedimentary rocks contain between 4 and 45 ppm Cu. Cu concentration in soils ranges from 1 to 40 ppm and averages about 9 ppm. Total soil Cu may be 1 or 2 ppm in deficient soils.
Copper interaction with other nutrients.
There are numerous interactions involving Cu. Applications of N-P-K fertilization can induce Cu deficiencies. Furthermore, increased growth resulting from the application of N or other nutrients may be proportionally greater than Cu uptake, which dilutes Cu concentration in plants. Increasing the N supply to crops can reduce mobility of Cu in plants, since large amounts of N in plants impede translocation of Cu from older leaves to new growth. High concentration of Zn, Fe, and P in soil solution can also depress Cu absorption by plant roots and may intensify Cu deficiency.
Plant Factors.
Crops vary greatly in response to Cu. Among small-grain species, rye has exceptional tolerance to low levels of soil Cu and will be healthy, whereas wheat fails completely without the application of Cu. Rye can extract up to twice as much Cu as wheat under the same conditions. The usual order of sensitivity of the small grains to Cu deficiency in the field is wheat > barley > oats > rye. Varietal differences in tolerance to low Cu are important, and sometimes they can be as large as those among crop species.
Severe Cu deficiency in crops planted in soils with high C/N residues is related to (1) reactions of Cu with organic compounds originating from decomposing straw, (2) competition for available Cu by stimulated microbial populations, and (3) inhibition of root development and the ability to absorb Cu. If the soil-available Cu is low, manure added to a field may accentuate the problems. Organic material from manure, straws, or hay can tie up Cu, making it unavailable to plants.
Copper - Functions in the plant or soil
Essential for chlorophyll formation
Essential in many plant enzymes (oxidases in particular)
It is involved in electron transfer
Essential in enzyme systems associated with grain, seed, and fruit formation
It has a marked effect on the formation and chemical composition of cell walls - Very distinct on stem tissue
Copper - Special considerations
Copper can be used as a fungicide on plants
Excessive amounts of copper can cause iron deficiency
It is rather immobile in plants, therefore deficiency symptoms usually occur on new growth
Copper - The conditions associated with deficiencies
Sandy soils
High organic soils
Overlimed soils
High pH soils
Soils with high concentrations of phosphate and nitrogen
Copper - Deficiency Symptoms
Corn
General chlorosis of younger leaves
Leaf tips die and curl like pig tails
Interveinal chlorosis toward lower end of leaves
Small Grains
High organic matter soils - Yellowing of plant
Leaf tip dieback and twisting of leaf tips
Alfalfa
Youngest tissue turns faded green with grayish cast
Plants appear bushy and drought-stricken
Forms and Functions of Magnesium (Mg) in Plants
Mg is absorbed by plants as Mg²+ from the soil solution and, like Ca²+, is supplied to plant roots by mass flow and diffusion. Root interception contributes much less Mg²+ to uptake than Ca²+. The amount of Mg²+ taken up by plants is usually less than that of Ca²+ or K+.
Mg²+ concentration in crops varies between 0.1 to 0.4%. Mg²+ is a primary constituent of chlorophyll, and without chlorophyll the autotrophic green plant would fail to carry on photosynthesis. Chlorophyll usually accounts for about 15 to 20% of the total Mg²+ content of plants.
Mg also serves as a structural component to ribosomes, stabilizing them in the configuration necessary for protein synthesis. As a consequence of Mg²+ deficiency, the proportion of protein N decreases and that of non proteins N generally increases in plants.
Mg is associated with transfer reactions involving phosphate-reactive groups. Mg is required for maximum activity of most every phosphorylating enzyme in carbohydrate metabolism. Most reactions involving phosphates transfer from bad adenosine triphosphate (ATP) require Mg²+. Since the fundamental process of energy transfer occurs in photosynthesis, glycolysis, the citric or acid cycle, and respiration, Mg²+ is important throughout plant metabolism.
Because of the mobility of plant Mg²+ and it's ready transportation from older to younger plant parts, deficiency symptoms often appear first on the lower leaves. In many species, shortage of Mg²+ results in interveinal chlorosis of the leaf, in which only the veins remain green. In more advance stages the leaf tissue becomes uniformly pale yellow, then brown and necrotic. In other species, notably cotton, the lower leaves may develop a reddish-purple cast, gradually turning brown and finally necrotic.
Mg in Soil
Mg constitutes 1.93% of the earth's crust; however, the Mg²+ content of soils ranges from 0.1% in course, sandy soils in humid regions to 4% in fine-textured, arid, or semiarid soils formed from high-Mg parent materials.
The Mg concentration of soil solutions is typically 5 to 50 ppm in temperate- region soils, although Mg²+ concentrations between 120 and 2,400 ppm have been observed. Mg²+, like Ca²+, can be leached from soils, and Mg losses of 5 to 60 lbs./acre have been observed. The amounts lost depend on the interaction of several factors, including the Mg content of soil, rate of weathering, intensity of leaching, and the uptake by plants. Leaching of Mg²+ is often a problem in sandy soils, particularly following the addition of fertilizer such as KCL and K2SO4. Very little Mg displacement occurs when equivalent amounts of K are applied as either CO3²-, HCO3, or H2PO4-. Apparently, Mg²+ desorption and leaching in coarse-texture soils are enhanced by the presence of soluble Cl- and SO4²-. As with Ca²+, erosion losses can be considerable in some soils.
Mg in clay minerals is slowly weathered out by leaching and exhaustive cropping. Conditions in which Mg is likely to be deficient include acidic, sandy, highly leached soils with low CEC; calcareous soils with inherently lower Mg levels; acidic soils receiving high rates of lining materials low in Mg; higher rates of NH4+ or K+ fertilization; and crops with Mg demand.
Mg Sources
In contrast to calcium, the primary nutrient fertilizers contain magnesium, with the exception of K2SO4 · MgSO4. Dolomite is commonly applied to low-Mg acidic soils. K2SO4 · MgSO4 and MgSO4 (Epsom salts) are the most widely used materials in dry fertilizer formulation. Other materials containing Magnesium are magnesia (MgO, 55% Mg), magnesium nitrate [Mg(NO3)2. 16% Mg], magnesium silicate (basic slag, 3 to 4 % Mg; serpentine, 26% Mg), magnesium chloride solution (MgCl2 ( 10 H20, 8 to 9% Mg), synthetic chelates (2 to 4% Mg), and natural organic complexing substances (4 to 9% Mg). MgSO4, MgCl2, Mg(NO3)2, and synthetic and natural magnesium chelates are well-suited for application in clear liquids and foliar sprays. Magnesium deficiency of citrus trees in California is frequently corrected by foliar applications of Mg(NO3)2. In some tree-fruit growing areas, MgSO4 solutions are applied to maintain levels, and in seriously deficient orchards several annual applications are necessary. K2SO4 ¸ MgSO4 are the most widely used magnesium additives in suspensions. Special suspension grade [100% passing through a 20-mesh screen] of this material is available commercially. Magnesium content in animal and municipal waste is similar to S content and can therefore be used to supply sufficient magnesium.
Manganese in Soil
Mineral manganese. Manganese concentration in the earth's crust average 1000 ppm, and manganese is found in most iron-magnesium rocks. Manganese, when released through weathering of primary rocks, will combine with O2 to form secondary minerals, including pyrolusite (MnO2), hausmannite (Mn3O4), and manganite (MnOOH). Pyrolusite and manganite are the most abundant.
Total manganese in soils generally range between 20 and 3,000 ppm and averages about 600 ppm. Manganese in soils occurs as various oxides and hydroxide coated on soil particles, deposited in cracks and veins, and mixed with iron oxides and other soil constituents.
Soil solution manganese. The principal species in solution is Mn²+ , which decreases 100-fold for each unit increase in pH, similar to the behavior of other divalent metal cations. The concentration of Mn²+, in solution is predominately controlled by MnO2. Concentration of Mn²+ in the soil solution of the acidic and neutral soils is commonly in the range of 0.01 to 1 ppm, with organically complexed Mn²+ comprising about 90 percent of solution Mn²+. Plants take up Mn²+, which moves to their root surface by diffusion.
Manganese in soil solutions is greatly increased under acidic, low-redox conditions. In extremely acidic soils, Mn²+ solubility can be sufficiently great to cause toxicity problems in sensitive plant species.
Interaction with other nutrients
High levels of copper, iron, or zinc, can reduce manganese uptake by plants. Addition of acid-forming NH4+ to soil will enhance manganese uptake.
Plant Factors
Several plant species exhibit differences in sensitivity to manganese deficiency. These differences in the response of manganese deficient and manganese inefficient plants are due to internal factors rather than to the facts of the plants on the soil. Reductive capacity at the root may be the factor restricting manganese uptake and translocation. There may also be significant differences in the amounts and properties of root exudates generated by plants, which can influence Mn²+ availability. It is possible that plant characteristics possessed by irony fission plants may similarly influence manganese uptake in plants and their tolerance to manganese stress.
Manganese sources
Organic manganese. The manganese concentration in most animal wastes is similar to zinc, ranging between 0.01 and 0.05% (0.2and 1 lb. / t). Thus, with most manures, average application rates will provide sufficient plant available manganese. As with iron, zinc, and copper, the primary benefits of organic waste application is increased organic material and associated natural chelation properties that increased manganese concentration in soil solution and plant availability. As with the other micronutrients, manganese content in municipal waste varies greatly depending on the stores. On average, manganese content is about half the copper content (0.05%, or one pound per ton).
Organic manganese. Manganese sulfate is widely used for correction of manganese deficiency and may be soil or foliar applied. In addition to organic manganese fertilizers, natural organic complexes and chelated manganese are available and are usually foliar applied.
Manganese oxide (MnO) is only slightly water soluble, but it is usually a satisfactory source of manganese. Manganese oxide must be finely ground to be affected. Rates of manganese applications range from 1 to 25 lbs. per acre; higher rates are recommended for broadcast application, while lower rates are foliar applied. Band-applied manganese is generally more effective than broadcast manganese, and band treatments are usually about one-half of the broadcast rates. Oxidation to less available forms of manganese is apparently delayed with band-applied manganese. Applications at the higher rates may be required on organic soils. Band application of manganese in combination with N-P-K fertilizers is commonly practiced.
Broadcast application of manganese chelates and natural organic complexes is not normally advised because soil calcium or iron can replace manganese in these chelates, and the freed manganese is usually converted to unavailable forms. Meanwhile, the more available chelated calcium or iron probably accentuates the manganese deficiency. Limestone or high-pH-induced manganese deficiency can be rectified by acidification resulting from the use of sulfur or other assets-forming materials.
Manganese - Functions in plant or soil
It has a role in production of chlorophyll but is not a component
It is involved in electron transfer reactions
Involved in enzyme systems, arginase and phosphotransferase
Involved in enzyme systems of sugar metabolism
Participates in oxygen-evolving system of photosynthesis
Involved in electron transport in chloroplasts
Involved in transfer of electrons from water to the photosynthetic II protein fraction
It accelerates germination and maturity
Manganese - Special considerations
Its solubility increases 100 fold per unit drop in pH - can be toxic in low pH soils
Manganese concentrated in leaves and stems - seeds contain only small amounts
High concentration of Mn in soil can lead to poor iron absorption
Manganese - The conditions associated with deficiencies
High soil pH
High organic soils
Cool wet soil conditions
Overlimed soils - High calcium levels
Manganese - Deficiency symptoms
Corn & Grain Sorghum
Interveinal chlorosis with general stunting similar to iron deficiency except iron is seldom short on high organic matter soils
Small Grains
Marginal gray and brown necrotic spots and streaks appearing on basal portion of leaves
Ends of affected leaves may stay green for an extended time
On older affected leaves the spots are oval and gray brown
Soybeans
Interveinal chlorosis
As deficiency becomes more severe, leaves become pale green, then yellow
Brown necrotic spots develop as deficiency becomes more pronounced
Veins remain darker as compared to iron deficiency
Zinc (Zn)
Zinc is involved in many enzymatic activities, but it is not known whether it acts as a functional, structural, or regulatory cofactor.
Zinc - Functions in plant or soil
Involved in large number of enzymes - including dehydrogenases, aldolases, isomerases, transphosphorylases, RNA and DNA polymerases
Involved in carbohydrate metabolism
Involved in the rate of protein synthesis
Zinc - Special considerations
Availability enhanced significantly by presence of mycorrhizal fungi in the soil
It is not subject to oxidation-reduction reactions in soil-plant system
It is quite immobile in the soil
It will bond strongly with sulfide formed from decomposing humus under anaerobic conditions
Solubility increases 100 fold for each pH unit lowered
Zinc - The conditions associated with deficiencies
High pH soils
Calcareous soils
Overlimed soils
Sandy soils
Soils where anaerobic decomposition is present
High soil phosphorus levels - Varies by crop
Cold wet soils
Zinc - Deficiency symptoms
Corn
Appear within first 2 weeks after emergence
Broad band of chloritic tissue on one or both sides of leaf midrib - most pronounced towards base of leaf
Young leaves most severely affected
Delayed maturity and reduced yields
Grain Sorghum
Similar to corn
Small Grain
Similar to corn
Soybeans
Chlorosis of younger leaves
Chlorosis may extend to all leaves on plant
Total chlorosis without green veins
Silica (Si)
Silica is one of the most abundant elements on the surface of the earth. Silica contributes to the structure of cell walls. Concentrations of up to 10% occur in silica rich plants. Silica primarily impregnates the walls of epidermis and vascular tissues, where it appears to strengthen the cell wall, reduce water loss, and retard fungal infection.
The involvement of silica in root functions is believed to be its contribution to the drought tolerance of crops. Although no biochemical role for silica in plant development has been positively identified, it has been proposed that in enzyme-silicon complexes they act as protectors or regulators of photosynthesis and enzyme activity.
The beneficial effects of silicon have been attributed to corrections of soil toxicity arising from high levels of available manganese, iron, and aluminum; plant disease resistance; increased availability of phosphorus; and reduced transpiration.
Silica - Functions in plant or cell
In epidermal cell walls silica reduces water loss by cuticular transpiration
Silica acts as a barrier against invasion of parasites and pathogens in endodermis cells of roots
Silica increases epidermal layer of leaves resistance to fungal attacks.
Silica is associated with incorporation of inorganic phosphate into ATP, ADP, and sugar phosphates
Silica - Special considerations
Because of the abundance of silica in the soil, it is difficult to prove it is an essential micronutrient for higher plants
Silica reduced manganese and iron toxicity where soil levels are excessive
Silica - The conditions associated with deficiencies
Undefined
Silica - Deficiency symptoms
Wetland Rice
Reduced vegetative growth and grain production
Sugarcane
Drastic reduction in growth
Leaf freckling on leaf blades directly exposed to full sunlight
Sulfur (S)
Although more than 95% of soil sulfur is bonded in organic forms and present in the upper layers of most soils, these reserves are not readily available to the plant.
Forms of Sulfur in Plants:
Sulfur is absorption by plant roots almost exclusively as sulfate, SO4-². Small quantities of SO2 can be absorbed through plant leaves and utilized within plants, but high concentrations are toxic. Typically concentrations of sulfur in plants range between 0.1 and 0.5%. Among the families of crop plants sulfur content increases in order Gramineae < Leguminosae < Cruciferae and is reflected in the differences in sulfur content of their seeds: 0.18-0.19%, 0.25-0.3%, and 1.1-1.7%, respectively.
Functions of Sulfur in Plants
Sulfur is required for synthesis of the S-containing amino acids, which are essential components of protein. Approximately 90% of the sulfur in plants is found in these amino acids. Increasing sulfur availability increase sulfur content in leaves, which increases sulfur containing amino acids.
Plants suffering sulfur deficiency accumulate non-protein nitrogen in the form of NH2 and NH3. It is apparent that sulfur fertilization improves the quality of this forage by narrowing the nitrogen to sulfur ratio. A Nitrogen to sulfur ratio of between 9:1 and 12: 1 is needed for effective use of nitrogen by rumen and microorganisms. This beneficial effect of sulfur fertilization on improving crop quality through reductions in the nitrogen to sulfur ratio is important in animal nutrition.
Ag-Gel is a naturally occurring micronutrient plant fertilizer concentrated into a soluble silicate gel. Produced from naturally occurring micronutrient mineral sources, Ag-Gel is a semi-permeable gel membrane that absorbs and holds over 700% its dry weight in water. When applied to the soil it creates a nutrient rich moisture barrier which helps reduce evaporation from the soil while providing plants essential nutrients they need to thrive.
SUMMARY: Current NASA regulations at 14 CFR part 1260 describe the use of cooperative agreements with educational institutions and non-profit organizations. The proposed regulation will establish the requirements for cooperative agreements with commercial firms. DATES: Comments are due on or before August 28, 1995. ADDRESSES: Headquarters, NASA, Washington, DC 20546, ATTN: CODE HK/MR. T. Deback. Comments on the paperwork burden should also be addressed to the Office of Information and Regulatory Affairs, Attention: Desk Officer for NASA, Washington, DC 20503. FOR FURTHER INFORMATION CONTACT: Mr. T. Deback, (202) 358-0431. SUPPLEMENTARY INFORMATION: Background As a result of the National Performance Review, participation in ARPA's Technology Reinvestment Program, the High Performance Computing Initiative, and a strong sense within NASA that cooperative agreements with industry are an appropriate way to carry out certain assistance type activities, use of cooperative agreements is being increased. As part of this increase, cooperative agreements with industry are being utilized for the first time. Regulatory Flexibility Act NASA certifies that this regulation will not have a significant economic effect on a substantial number of small entities under the Regulatory Flexibility Act ( 5 U.S.C. 601 et seq.). Paperwork Reduction Act The information collection requirements in this proposed rule have been submitted to the Office of Management and Budget for review under 44 U.S.C. 3504 (h). NASA requires certain reporting and recordkeeping of commercial firms in order to determine eligibility for selection and compliance with the provisions of the cooperative agreements. The estimated total annual reporting and recordkeeping burden is 6680 hours. The estimated average burden hours per response is 6 hours. The rule proposes annual reporting for patents, property, and technical results. Other reports are required at the conclusion of the agreement or the occurrence of other events. The estimated number of likely respondents is 175 firms submitting proposals per year resulting in the award of 50 cooperative agreements per year. List of Subjects in 14 CFR Part 1274 Grant programs, Business and industry. Tom Luedtke, Deputy Associate Administrator for Procurement. Accordingly, 14 CFR part 1274 is proposed to be added as follows. PART 1274--COOPERATIVE AGREEMENTS WITH COMMERCIAL FIRMS Subpart A--General 1274.101 Purpose. 1274.102 Definitions. 1274.103 Effect on other issuances. 1274.104 Deviations. 1274.105 Approval of Cooperative Agreement Notices (CANs) and cooperative agreements. Subpart B--Pre-Award Requirements 1274.201 Purpose. 1274.202 Solicitations and proposals. 1274.203 Invention and patent rights. 1274.204 Evaluation and selection. 1274.205 Award procedures. 1274.206 Document format and numbering. 1274.207 Distribution of cooperative agreements. Subpart C--Administration 1274.301 Delegation of administration. 1274.302 Transfers, novations, and change of name agreements. Subpart D--Government Property 1274.401 Government property. Subpart E--Procurement Standards 1274.501 Subcontracts. Subpart F--Reports and Records 1274.601 Retention and access requirements for records. Subpart G--Suspension or Revocation 1274.701 Suspension or revocation. Subpart H--After-the-Award Requirements 1274.801 Purpose. 1274.802 Closeout procedures. 1274.803 Subsequent adjustments and continuing responsibilities. Subpart I--Other Provisions and Special Conditions 1274.901 Other provisions and special conditions. 1274.902 Purpose (XXX 1995) 1274.903 Responsibilities (XXX 1995) 1274.904 Resource Sharing Requirements (XXX 1995) 1274.905 Rights in Data (XXX 1995) 1274.906 Designation of New Technology Representative and Patent Representative (XXX 1995) 1274.907 Disputes (XXX 1995) 1274.908 Milestone Payments (XXX 1995) 1274.909 Term of this Agreement (XXX 1995) 1274.910 Authority (XXX 1995) 1274.911 Patent Rights (XXX 1995) 1274.912 Patent Rights--Retention by the Contractor (Large Business) (XXX 1995) 1274.913 Patent Rights--Retention by the Contractor (Small Business) (XXX 1995) 1274.914 Requests for Waiver of Rights--Large Business (XXX 1995) 1274.915 Restrictions on Sale or Transfer of Technology to Foreign Firms or Institutions (XXX 1995) 1274.916 Liability and Risk of Loss (XXX 1995) 1274.917 Additional Funds (XXX 1995) 1274.918 Incremental Funding (XXX 1995) 1274.919 Cost Principles and Accounting Standards (XXX 1995) 1274.920 Responsibilities of the NASA Technical Officer (XXX 1995) 1274.921 Publications and Reports: Non-Proprietary Research Results (XXX 1995) 1274.922 Suspension or Revocation (XXX 1995) 1274.923 Equipment and Other Property (XXX 1995) 1274.924 Civil Rights (XXX 1995) 1274.925 Subcontracts (XXX 1995) 1274.926 Clean Air-Water Pollution Control Acts (XXX 1995) 1274.927 Debarment and Suspension and Drug-Free Workplace (XXX 1995) 1274.928 Foreign National Employee Investigative Requirements (XXX 1995) 1274.929 Restrictions on Lobbying (XXX 1995) 1274.930 Travel and Transportation (XXX 1995) 1274.931 Officials Not to Benefit (XXX 1995) 1274.932 Electronic Funds Transfer Payment Methods (XXX 1995) 1274.933 Retention and Examination of Records (XXX 1995) Appendix A--Contract Provisions Appendix B--Reports Appendix C--Listing of Exhibits Authority: 31 U.S.C. 6301 to 6308; 42 U.S.C. 2451 , et seq. Subpart A--General Sec. 1274.101 Purpose. This regulation establishes uniform administrative requirements for NASA cooperative agreements awarded to commercial firms. Cooperative agreements are ordinarily entered into with commercial firms to-- (1) Support research and development, (2) Provide technology transfer from the Government to the recipient, or (3) Develop a capability among U.S. firms to potentially enhance U.S. competitiveness. (b) Award to foreign firms is not precluded; however, an award may not be made to a foreign government. Sec. 1274.102 Definitions. Administrator. The Administrator or Deputy Administrator of NASA. Associate Administrator for Procurement. The head of the Office of Procurement, NASA Headquarters (Code H). Cash contributions. The recipient's cash outlay, including the outlay of money contributed to the recipient by third parties. Closeout. The process by which a NASA determines that all applicable administrative actions and all required work of the award have been completed by the recipient and NASA. Cooperative agreement. As defined by 31 U.S.C. 6305 , cooperative agreements are financial assistance instruments used to stimulate or support activities for authorized purposes and in which the Government participates substantially in the performance of the effort. This regulation covers only cooperative agreements with commercial firms. Cooperative agreements with universities and non-profit organizations are covered by 14 CFR part 1260. Cost sharing or matching. That portion of project or program costs not borne by the Federal Government except that the recipient's contribution may be reimbursable under other Government awards as allowable IR&D costs pursuant to 48 CFR (NFS) 1831.205-18 ( 59 FR 22521 , May 2, 1994). Date of completion. The date on which all work under an award is completed or the date on the award document, or any supplement or amendment thereto, on which NASA sponsorship ends. Days. Calendar days, unless otherwise indicated. Government furnished equipment. Equipment in the possession of, or acquired directly by, the Government and subsequently delivered, or otherwise made available, to a Recipient. Grant Officer. A Government employee who has been delegated the authority to negotiate, award, or administer grants or cooperative agreements. Incremental funding. A method of funding a cooperative agreement where the funds initially allotted to the cooperative agreement are less than the award amount. Additional funding is added as described in Sec. 1274.918. Recipient. An organization receiving financial assistance under a cooperative agreement to carry out a project or program. A recipient may be an individual firm, a consortium, a partnership, etc. Resource contribution. The total value of resources provided by either party to the cooperative agreement including both cash and in- kind contributions. Revocation. The cancellation of NASA sponsorship, in whole or in part, under an agreement at any time prior to the date of completion. Support contractor means a NASA contractor performing part or all of the NASA responsibilities under a cooperative agreement. Suspension. An action by NASA that temporarily withdraws sponsorship under an award, pending corrective action by the recipient or pending a decision to revoke the award by NASA. Suspension of an award is a separate action from suspension under Federal agency regulations implementing E.O.'s 12549 and 12689, ``Debarment and Suspension.'' Technical officer. The official of the cognizant NASA office who is responsible for monitoring the technical aspects of the work under a cooperative agreement. Sec. 1274.103 Effect on other issuances. For awards subject to this regulation, all administrative requirements of codified program regulations, program manuals, handbooks and other nonregulatory materials which are inconsistent with the requirements of this Regulation shall be superseded, except to the extent they are required by statute, or authorized in accordance with the deviations provision in Sec. 1274.104. Sec. 1274.104 Deviations. (a) The Associate Administrator for Procurement may grant exceptions for classes of or individual cooperative agreements from the requirements of this Regulation when exceptions are not prohibited by statute. (b) Applicability. A deviation is required for any of the following: (1) When a prescribed provision set forth in this regulation for use verbatim is modified or omitted. (2) When a provision is set forth in this regulation, but not prescribed for use verbatim, and the installation substitutes a provision which is inconsistent with the intent, principle, and substance of the prescribed provision. (3) When a NASA form or other form is prescribed by this regulation, and that form is altered or another form is used in its place. (4) When limitations, imposed by this regulation upon the use of a provision, form, procedure, or any other action, are not adhered to. (c) Request for deviations. Requests for authority to deviate from this regulation will be forwarded to Headquarters, Program Operations Division (Code HS). Such requests, signed by the Procurement Officer, shall contain as a minimum: (1) A full description of the deviation and identification of the regulatory requirement from which a deviation is sought. (2) Detailed rationale for the request, including any pertinent background information. (3) The name of the recipient and identification of the cooperative agreement affected, including the dollar value. (4) A statement as to whether the deviation has been requested previously, and, if so, circumstances of the previous request(s). (5) A description of the intended effect of the deviation. (6) A copy of legal counsel's concurrence or comments. Sec. 1274.105 Approval of Cooperative Agreement Notices (CANs) and cooperative agreements. (a) As soon as possible after the initial decision is made by program or procurement personnel to use the CAN process, the cognizant program office or procurement office, shall notify the Associate Administrator for Procurement (Code HS), of the intent to use a CAN in all cases where the total Government funds to be awarded in response to CAN proposals is expected to equal or exceed $10 million. All such notifications, as described below, shall be concurred in by the Procurement Officer. This requirement also applies in those cases where an unsolicited proposal is received and a decision is made to award a cooperative agreement in which the recipient (or one or more of a ``team'' of recipients) is a commercial firm and the total Government funds are expected to equal or exceed $10 million. (b) The required notification is to be accomplished by sending an electronic mail (e-mail) message to the following address at NASA Headquarters: can@mercury.hq.nasa.gov . The notification must include the following information, as a minimum: (1) Identification of the cognizant center and program office, (2) Description of the proposed program for which proposals are to be solicited, (3) Rationale for decision to use a CAN rather than other types of solicitations, (4) The amount of Government funding to be available for awards, (5) Estimate of the number of cooperative agreements to be awarded as a result of the CAN, (6) The percentage of cost-sharing to be required, and (7) Tentative schedule for release of CAN and award of cooperative agreements (c) Code HS will respond by e-mail message to the sender, with a copy of the message to the Procurement Officer, within 5 working days of receipt of this initial notification. The response will address the following: (1) Whether Code HS agrees or disagrees with the appropriateness for using a CAN for the effort described, (2) Whether Code HS will require review and approval of the CAN before its issuance, (3) Whether Code HS will require review and approval of the selected offeror's cost sharing arrangement (e.g., cost sharing percentage; type of contribution (cash, labor, intellectual property, etc.)), and (4) Whether Code HS will require review and approval of the resulting cooperative agreement(s). (d) If a response from Code HS is not received within 5 working days of notification, the program office or center may proceed with release of the CAN and award of the cooperative agreements as described. Subpart B--Pre-Award Requirements Sec. 1274.201 Purpose. Sections 1274.202 through 1274.207 prescribe forms and instructions and addresses other pre-award matters. Sec. 1274.202 Solicitations and proposals. (a) Consistent with 31 U.S.C. 6301 (3), NASA uses competitive procedures to award cooperative agreements whenever possible. An award will normally be made as a result of a Cooperative Agreement Notice (CAN) which envisions a cooperative agreement as the award instrument. A Commerce Business Daily synopsis will be used to publicize the CAN. (b) Unsolicited proposals. (1) An award may be made as a result of an unsolicited proposal. The unsolicited proposal must evidence a unique and innovative idea or approach which is not the subject of a current or anticipated solicitation. When a cooperative agreement is awarded as a result of an unsolicited proposal, a Commerce Business Daily synopsis must be published to provide an opportunity for other firms/consortia to express an interest in the agreement unless the exception in 48 CFR (FAR) 5.202(a)(8) applies. Respondents should be given a minimum of thirty days to respond. If interest is expressed, a decision must be made to proceed with the award or to issue a solicitation for competitive proposals. (2) Prior to an award made as the result of an unsolicited proposal, the award must be approved by the Procurement Officer if NASA's total resource contribution is below $5 million. Center Director approval is required if NASA's total resource contribution is $5 million or more. For Headquarters cooperative agreements, approval by the Associate Administrator for Procurement is required if NASA's total resource contribution is $5 million or more. (c) Cost and payment matters (1) The allowability of costs incurred by the recipient is determined in accordance with 48 CFR (FAR) Part 31, ``Contract Cost Principles and Procedures.'' (2) Cost sharing. A substantial resource contribution on the part of the Recipient is required. The Recipient is expected to contribute at least 50% of the total resources required to accomplish the cooperative agreement. Recipient contributions may be in either cash or in-kind or both. In those cases in which a contribution of less than 50% is anticipated from the Recipient, approval of the Associate Administrator for Procurement (Code HS) is required prior to award. The request for approval should address the evaluation factor in the solicitation and how the proposal accomplishes those objectives to such a degree that a share ratio of less than 50% is warranted. (3) Fixed Funding. Cooperative agreements are funded by NASA in a fixed amount. Payments in fixed amounts will be made by NASA in accordance with ``Milestone Billings'' which are discussed in paragraph (c)(4) of this section. If the Recipient completes the final milestone, final payment is made, and NASA will have completed its financial responsibilities under the agreement. However, if the cooperative agreement is revoked prior to achievement of all milestones, NASA's funding will be limited to milestone payments already made plus NASA's share of costs incurred by the Recipient since the last milestone payment as reflected in the cost share agreement. In no event shall these additional costs or payment exceed the amount of the next payable milestone billing amount. (4) Milestone billings is the method of payment to the Recipient under cooperative agreements. Performance based milestones are used as the basis of establishing a set of verifiable milestones for payment purposes. Each milestone payment shall be established so that the Government payment is at the same share ratio as the cooperative agreement share ratio. If the Recipient is a consortium, the Articles of Collaboration is required to contain an extensive list of performance based milestones that the consortium has agreed to. Generally, payments should not be made more than once monthly; ideally, payments will be made about every 60 to 90 days but in all cases should be made on the basis of verifiable, significant events as opposed to the passage of time. The last payment milestone should be large enough to ensure that the Recipient completes its responsibilities under the cooperative agreement (or funds should be reserved for payment until after completion of the cooperative agreement). The Government technical officer must verify completion of each milestone to the Grants Officer as part of the payment process. If the Government's projected cash contribution to a cooperative agreement exceeds $5 million, approval of the Milestone Payment clause, including the milestones and anticipated payments, by the Associate Administrator for Procurement (Code HS)is required prior to award. The request for approval should contain substantially the same information required by 48 CFR (NFS) 1832.7006. (5) Incremental funding. Cooperative agreements with anticipated annual funding exceeding $5 million may be incrementally funded subject to the following: (i) Two increments per fiscal year are authorized. The second increment will be the balance of funding for the year. (ii) The incremental funding provision contained in Sec. 1274.918 is included in the cooperative agreement. (6) Cost sharing. Cost sharing requirements on cooperative agreements with commercial firms are based on section 23 of the Attachment to OMB Circular A-110, November 23, 1993 (58 FR 62992, November 29, 1993). Only cash or cash equivalent resources are acceptable sources for the Recipient contribution to a cooperative agreement. This includes such items as purchased equipment, equipment, labor, office space, etc. The actual or imputed value of intellectual property such as patent rights, data rights, trade secrets, etc., are not acceptable as sources for the Recipient contribution. (7) Recipients shall not be paid a profit under cooperative agreements. Profit may be paid by the Recipient to subcontractors, if the subcontractor is not part of the offering team and the subcontract is an arms-length relationship. (8) The Recipient's resource share of the cooperative agreement may be allocated as part of its IR&D program in accordance with a class deviation pursuant to 48 CFR (NFS) 1831.205-18 ( 59 FR 22521 , May 2, 1994). (9) The CAN must provide a description of the non-cash Government contribution (personnel, equipment, facilities, etc.) as part of the Government's contribution to the cooperative agreement in addition to funding. The offeror may propose that additional non-monetary Government resources be provided under two conditions. First, the offeror is responsible for verifying the availability of the resources and their suitability for their intended purpose and, second, those resources are considered part of the Government contribution and paid for directly by the awarding organization. (d) Consortia as recipients. (1) The use of consortia as Recipients for cooperative agreements is encouraged. Consortia will tend to bring to a cooperative agreement a broader range of capabilities and resources. A consortium is a group of organizations that enter into an agreement to collaborate for the purposes of the cooperative agreement with NASA. The agreement to collaborate can take the form of a legal entity such as a partnership or joint venture but it is not necessary that such an entity be created. A consortium may be made up of firms which normally compete for commercial or Government business or may be made up of firms which perform complementary functions in a given industry. The inclusion of a non-profit or educational institutions, small businesses, or small disadvantaged businesses in the consortium could be particularly valuable in ensuring that the results of the consortium's activities are disseminated. (2) Key to the success of the cooperative agreement with a consortium is the consortium's Articles of Collaboration, which is a definitive description of the roles and responsibilities of the consortium's members. It should also address to the extent appropriate: commitments of financial, personnel, facilities and other resources, a detailed milestone chart of consortium activities, accounting requirements, subcontracting procedures, disputes, term of the agreement, insurance and liability issues, internal and external reporting requirements, management structure of the consortium, obligations of organizations withdrawing from the consortia, allocation of data and patent rights among the consortia members, agreements, if any, to share existing technology and data, the firm which is responsible for the completion of the consortium's responsibilities under the cooperative agreement and has the authority to commit the consortium and receive payments from NASA, employee policy issues, etc. (3) An outline of the Articles of Collaboration should be required as part of the proposal and evaluated during the source selection process. (e) Metric system of measurement. The Metric Conversion Act, as amended by the Omnibus Trade and Competitiveness Act ( 15 U.S.C. 205 ) declares that the metric system is the preferred measurement system for U.S. trade and commerce. NASA's policy with respect to the metric measurement system is stated in NMI 8010.2A, Use of the Metric System of Measurement in NASA Programs, dated June 11, 1991. Sec. 1274.203 Invention and patent rights. (a) A cooperative agreement covers the disposition of rights relating to inventions and patents between NASA and the Recipient. If the Recipient is a consortium or partnership, rights flowing between multiple organizations in a consortium must be negotiated separately and formally documented, preferably in the Articles of Collaboration. (b) Patent rights clauses exist for Recipients of the Agreement whether they are: (1) other than small business or nonprofit organizations (generally referred to as large businesses) or (2) small businesses or nonprofit organizations. The clauses are required by statute and regulation. (c) There are five situations in which inventions may arise under a cooperative agreement: Recipient Inventions, Subcontractor Inventions, NASA Inventions, NASA Support Contractor Inventions, and Joint Inventions with Recipient. (d)(1) Recipient inventions. (i) A Recipient, if a large business, is subject to section 305 of the National Aeronautics and Space Act of 1958 ( 42 U.S.C. 2457 ) relating to property rights in inventions. The term ``invention'' includes any invention, discovery, improvement, or innovation. Title to an invention made under a cooperative agreement by a large business Recipient initially vests with NASA. The Recipient may request a waiver under the NASA Patent Waiver Regulations to obtain title to inventions made under the Agreement. Such a request may be made in advance of the Agreement (or 30 days thereafter) for all inventions made under the Agreement. Alternatively, requests may be made on a case-by-case basis any time an individual invention is made. Such waivers are liberally and expeditiously granted after review by NASA's Invention and Contribution Board and approval by NASA's General Counsel. When a waiver is granted, any inventions made in the performance of work under the Agreement are subject to certain reporting, election and filing requirements, a royalty-free license to the Government, march-in rights, and certain other reservations. (ii) A Recipient, if a small business or nonprofit organization, may elect to retain title to its inventions. The term ``nonprofit organization'' is defined in 35 U.S.C. 201 (i) and includes universities and other institutions of higher education or an organization of the type described in section 501(c)(3) of the Internal Revenue Code. The Government obtains an irrevocable, nonexclusive, royalty-free license. (2) Subcontractor Inventions. (i) Large Business. If a Recipient enters a subcontract (or similar arrangement) with a large business organization for experimental, developmental, research, design or engineering work in support of the Agreement to be done in the United States, its possessions, or Puerto Rico, Subpart 305 of the Space Act applies. The clause applicable to large business organizations is to be used (suitably modified to identify the parties) in any subcontract. The subcontractor may request a waiver under the NASA Patent Waiver Regulations to obtain rights to inventions made under the subcontract just as a large business Recipient can (see paragraph (d)(1)(i) of this section). It is strongly recommended that a prospective large business subcontractor contact the NASA installation Patent Counsel or Intellectual Property Counsel to assure that the right procedures are followed. Just like the Recipient, any inventions made in the performance of work under the Agreement are subject to certain reporting, election and filing requirements, a royalty-free license to the Government, march-in rights, and certain other reservations. (ii) Non-profit organization or Small Business. In the event the Recipient enters into a subcontract (or similar arrangement) with a domestic nonprofit organization or a small business firm for experimental, developmental, or research work to be performed under the Agreement, the requirements of 35 U.S.C. 200 et seq. regarding ``Patent Rights in Inventions Made With Federal Assistance,'' apply. The subcontractor has the first option to elect title to any inventions made in the performance of work under the Agreement, subject to specific reporting, election and filing requirements, a royalty-free license to the Government, march-in rights, and certain other reservations that are specifically set forth. (iii) Work outside the United States. If the Recipient subcontracts for work to be done outside the United States, its possessions or Puerto Rico, the NASA installation Patent Counsel or Intellectual Property Counsel should be contacted for the proper patent rights clause to use and the procedures to follow. (iv) Notwithstanding the above, and in recognition of the Recipient's substantial contribution, the Recipient is authorized, subject to rights of NASA set forth elsewhere in the Agreement, to: (A) Acquire by negotiation and mutual agreement rights to a subcontractor's subject inventions as the Recipient may deem necessary, or (B) If unable to reach agreement pursuant to paragraph (d)(2)(iv)(A) of this section, request that NASA invoke exceptional circumstances as necessary pursuant to 37 CFR 401.3 (a)(2) if the prospective subcontractor is a small business firm or nonprofit organization, or for all other organizations, request that such rights for the Recipient be included as an additional reservation in a waiver granted pursuant to 14 CFR 1245.1 . The exercise of this exception does not change the flow down of the applicable patent rights clause to subcontractors. Applicable laws and regulations require that title to inventions made under a subcontract must initially reside in either the subcontractor or NASA, not the Recipient. This exception does not change that. The exception does authorize the Recipient to negotiate and reach mutual agreement with the subcontractor for the grant-back of rights. Such grant-back could be an option for an exclusive license or an assignment, depending on the circumstances. (3) NASA Inventions. NASA will use reasonable efforts to report inventions made by its employees as a consequence of, or which bear a direct relation to, the performance of specified NASA activities under an Agreement. Upon timely request, NASA will use its best efforts to grant Recipient first option to acquire either an exclusive or partially-exclusive, revocable, royalty-bearing license, on terms to be negotiated, for any patent applications and patents covering such inventions. This exclusive or partially-exclusive license to the Recipient will be subject to the retention of rights by or on behalf of the Government for Government purposes. (4) NASA Support Contractor Inventions. It is preferred that NASA support contractors be excluded from performing any of NASA's responsibilities under the Agreement since the rights obtained by a NASA support contractor could work against the rights needed by the Recipient. In the event NASA support contractors are tasked to work under the Agreement and inventions are made by support contractor employees, the support contractor will normally obtain rights in such inventions. However, if NASA has the right to acquire or has acquired title to such inventions, upon timely request, NASA will use its best efforts to grant Recipient first option to acquire either an exclusive or partially exclusive, revocable, royalty-bearing license, upon terms to be negotiated, for any patent applications and patents covering such inventions. This exclusive or partially-exclusive license to the Recipient will be subject to the retention of rights by or on behalf of the Government for Government purposes. (5) Joint Inventions. (i) NASA and the Recipient agree to use reasonable efforts to identify and report to each other any inventions made jointly between NASA employees (or employees of NASA support contractors) and employees of Recipient. For large businesses, the Headquarters General Counsel may agree that the United States will refrain, for a specified period, from exercising its undivided interest in a manner inconsistent with Recipient's commercial interest. For small business firms and nonprofit organizations, the Associate General Counsel (Intellectual Property) may agree to assign or transfer whatever rights NASA may acquire in a subject invention from its employee to the Recipient as authorized by 35 U.S.C. 202 (e). The grant officer negotiating the Agreement with small business firms and nonprofit organizations can agree, up front, that NASA will assign whatever rights it may acquire in a subject invention from its employee to the small business firm or nonprofit organization. Requests under this paragraph shall be made through the Center Patent Counsel. (ii) NASA support contractors may be joint inventors. If a NASA support contractor employee is a joint inventor with a NASA employee, the same provisions apply as those for NASA Support Contractor Inventions. The NASA support contractor will retain or obtain nonexclusive licenses to those inventions in which NASA obtains title. If a NASA support contractor employee is a joint inventor with a Recipient employee, the NASA support contractor and Recipient will become joint owners of those inventions in which they have elected to retain title or requested and have been granted waiver of title. Where the NASA support contractor has not elected to retain title or has not been granted waiver of title, NASA will jointly own the invention with the Recipient. (e) Licenses to Recipient(s). (1) Any exclusive or partially exclusive commercial licenses are to be royalty-bearing consistent with Government-wide policy in licensing its inventions. It also provides an opportunity for royalty-sharing with the employee-inventor, consistent with Government-wide policy under the Federal Technology Transfer Act. (2) Upon application in compliance with 37 CFR part 404--Licensing of Government Owned Inventions, all Recipients shall be granted a revocable, nonexclusive, royalty-free license in each patent application filed in any country on a subject invention and any resulting patent in which the Government obtains title. Because cooperative agreements are cost sharing cooperative arrangements with a purpose of benefiting the public by improving the competitiveness of the Recipient and the Government receives an irrevocable, nonexclusive, royalty-free license in each Recipient subject invention, it is only equitable that the Recipient receive, at a minimum, a revocable, nonexclusive, royalty-free license in NASA inventions and NASA contractor inventions where NASA has acquired title. (3) Notice Requirements. Once a Recipient has exercised its option to apply for an exclusive or partially exclusive license, a notice, identifying the invention and the Recipient, is published in the Federal Register, providing the public opportunity for filing written objections for 60 days. (f) Preference for United States Manufacture. Despite any other provision, the Recipient agrees that any products embodying subject inventions or produced through the use of subject inventions shall be manufactured substantially in the United States. The intent of this provision is to support manufacturing jobs in the United States regardless of the status of the Recipient as a domestic or foreign controlled company. However, in individual cases, the requirement to manufacture substantially in the United States, may be waived by the Associate Administrator for Procurement (Code HS) upon a showing by the Recipient that under the circumstances domestic manufacture is not commercially feasible. (g) Space Act Agreements. Invention and patent rights in cooperative agreements must comply with statutory and regulatory provisions. Where circumstances permit, a Space Act Agreement is available as an alternative instrument which can be more flexible in the area of invention and patent rights. (h) Data Rights. Data rights provisions can and should be tailored to best achieve the needs and objectives of the respective parties concerned. (1) The data rights clause at Sec. 1274.905 assumes a substantially equal cost sharing relationship where collaborative research, experimental, developmental, engineering, demonstration, or design activities are to be carried out, such that it is likely that ``proprietary'' information will be developed and/or exchanged under the agreement. If cost sharing is unequal or no extensive research, experimental, developmental, engineering, demonstration, or design activities are likely, a different set of clauses may be appropriate. (2) The primary question that must be answered when developing data clauses is what does each party need or intend to do with the data developed under the agreement. Accordingly, the data rights clauses may be tailored to fit the circumstances. Where conflicting goals of the parties result in incompatible data provisions, grant officers for the Government must recognize that private companies entering into cooperative agreements bring resources to that relationship and must be allowed to reap an appropriate benefit for the expenditure of those resources. However, since serving a public purpose is a major objective of a cooperative agreement, care must be exercised to ensure the Recipient is not established as a long term sole source supplier of an item or service and is not in a position to take unfair advantage of the results of the cooperative agreement. Therefore, a reasonable time period (two to seven years depending on the technology) should be established after which the data rights will be made public. (3) Data can be generated from different sources and can have various restrictions placed on its dissemination. Recipient data furnished to NASA can exist prior to, or be produced outside of, the agreement or be produced under the agreement. NASA can also produce data in carrying out its responsibilities under the agreement. Each of these areas need to be covered. (4) For data, including software, first produced by the Recipient under the agreement, the Recipient may assert copyright. Data exchanged with a notice showing that the data is protected by copyright must include appropriate licenses in order for NASA to use the data as needed. (5) Recognizing that the dissemination of the results of NASA's activities is a primary objective of a cooperative agreement, the parties should specifically delineate what results will be published and under what conditions. This should be set forth in the clause of the cooperative agreement entitled ``Publication and Reports.'' Any such agreement on the publication of results should be stated to take precedence over any other clause in the cooperative agreement. (6) In accordance with section 303(b) of the Space Act, any data first produced by NASA under the agreement which embodies trade secrets or financial information that would be privileged or confidential if it had been obtained from a private participant, will be marked with an appropriate legend and maintained in confidence for an agreed to period of up to five years (the maximum allowed by law). This does not apply to data other than that for which there has been agreement regarding publication or distribution. Also, NASA itself may use the marked data (under suitable protective conditions) for agreed-to purposes. Sec. 1274.204 Evaluation and selection. (a) A single technical evaluation factor is typically used for CANs. That evaluation factor may be one of the following: providing research and development or technology transfer, enhancing U.S. competitiveness, or developing a capability among U.S. firms. Award to foreign firms is not precluded if the evaluation factor is satisfied. Subfactors could include such things as fostering U.S. leadership, potential to advance technologies anticipated to enhance U.S. competitiveness, timeliness of proposed accomplishments, private sector commitment to commercialization, identification of specific potential commercial markets, appropriateness of business risk, potential for broad impact on the U.S. technology and knowledge base, level of commitment (contribution of private resources to the project), appropriateness of team member participation and relationships, appropriateness of management planning, relevant experience, qualifications and depth of management and technical staff, quality and appropriateness of resources committed to the project, performance bench marks, technical approach, business approach/resource sharing, past performance, the articles of collaboration, etc. (b) Technical evaluation. (1) The technical officer will evaluate proposals in accordance with the criteria in the CAN. Proposals selected for award will be supported by documentation as described in paragraph (c)(1) of this section. When evaluation results in a proposal not being selected, the proposer will be notified in accordance with the CAN. (2) The technical evaluation of proposals may include peer reviews. Since the business sense of a cooperative agreement proposal is critical to its success, NASA should reserve the right to utilize appropriate outside evaluators to assist in the evaluation of such proposal elements as the business base projections, the market for proposed products, and/or the impact of anticipated product price reductions. The use of outside evaluators shall be approved in accordance with 48 CFR (NFS) 1815.413-2(c)(2). It is strongly recommended that a numerical scoring system be established to rank proposals. (3) Unsolicited proposals. Evaluation of unsolicited proposals must consider whether: the subject of the proposal is available to NASA from another source without restriction; the proposal closely resembles a pending competitive acquisition; and the research proposed demonstrates an innovative and unique method, approach, or concept. Organizations submitting unaccepted proposals will be notified in writing. (c) Documentation requirements. For proposals selected for award, the technical officer will prepare and furnish to the grant officer the following documentation: (1) For a competitively selected proposal, a signed selection statement and technical evaluation based on the evaluation criteria stated in the solicitation. (2) For an unsolicited proposal, a justification for acceptance of an unsolicited proposal (JAUP) prepared by the cognizant technical office. The JAUP shall be submitted for the approval of the grant officer after review and concurrence at a level above the technical officer. The evaluator shall consider the following factors, in addition to any others appropriate for the particular proposal: (i) Unique and innovative methods, approaches or concepts demonstrated by the proposal. (ii) Overall scientific or technical merits of the proposal. (iii) The offeror's capabilities, related experience, facilities, techniques, or unique combinations of these which are integral factors for achieving the proposal objectives. (iv) The qualifications, capabilities, and experience of the proposed key personnel who are critical in achieving the proposal objectives. (v) Current, open solicitations under which the unsolicited proposal could be evaluated. (d) Cost evaluation. (1) The grant officer and technical team will determine whether the overall proposed cost of the project is reasonable and that the Recipient's contribution is valid, verifiable, and available. Commitments should be obtained and verified to the extent practical from the offeror or members of the consortia that the proposed contributions can and will be made as specified in the proposal or statement of work. (i) If the Recipient's verified share on a cooperative agreement equals or exceeds 50% of the total cost of the agreement and the total value of the agreement is less than $5 million, the cost evaluation of the offeror's proposal should focus on the overall reasonableness and timing of the proposer's contribution. Cost and pricing data should not normally be required. (ii) If the Recipient's share is projected to be less than 50% or the total value of the agreement is more than $5 million, a more in- depth analysis of the proposed costs should be undertaken. Cost and pricing data should be required although certification is not required. An analysis consistent with 48 CFR (FAR) 15.805-3 through 15.805-5 should be performed. (e) If the cooperative agreement is to be awarded to a consortium, a completed, formally executed Articles of Collaboration is required prior to award. (f) Printing, binding, and duplicating. Proposals for effort which involve printing, binding, and duplicating in excess of 25,000 pages are subject to the regulations of the Congressional Joint Committee on Printing. The technical office will refer such proposals to the Installation Central Printing Management Officer (ICPMO) to ensure compliance with NMI 1490.1. The grant officer will be advised in writing of the results of the ICPMO review. Sec. 1274.205 Award procedures. (a) General. Multiple year cooperative agreements are encouraged, but normally they should not extend beyond two years. (b) Award above proposed amount. Awards of cooperative agreements in response to competitive solicitations will not result in providing more NASA funds or resources than was anticipated in the Recipient's proposal. If additional funds or resources are deemed necessary, they will be provided by the Recipient and the Government cost share will be adjusted downward. (c) Changes to cooperative agreements. Cost growth or in-scope changes shall not increase the amount of NASA's contribution. Additional costs which arise during the performance of the cooperative agreement are the responsibility of the Recipient. Funding for work required beyond the scope of the cooperative agreement must be sought through the submission of a proposal which will be treated as an unsolicited proposal. (d) Bilateral award. All cooperative agreements awarded under this regulation will be awarded on a bilateral basis. (e) Certifications and representations. (1) Unless prohibited by statute or codified regulation, Recipients will be encouraged to submit certifications and representations required by statute, executive order, or regulation on an annual basis, if the Recipients have ongoing and continuing relationships with the agency. Annual certifications and representations shall be signed by responsible officials with the authority to ensure Recipients' compliance with the pertinent requirements. (2) Civil rights requirements--nondiscrimination in certain Federally-funded programs. Recipients must furnish assurances of compliance with civil rights statutes specified in 14 CFR parts 1250 through 1252. Such assurances are not required for each cooperative agreement, if they have previously been furnished and remain current and accurate. Certifications to NASA are normally made on NASA Form 1206, which may be obtained from the grant officer. Upon acceptance, the grant officer will forward assurances to the NASA Office of Equal Opportunity Programs for recording and retention purposes. (3) NASA cooperative agreements are subject to the provisions of 14 CFR part 1265, Governmentwide Debarment and Suspension (Nonprocurement) and Governmentwide requirements for Drug-Free Workplace (Grants), unless excepted by Secs. 1265.110 1265.610. (4) Lobbying Certification. A Lobbying Certification in accordance with 14 CFR part 1271 will be obtained prior to award. (f) Indemnification under Pub. L. 85-804 is not authorized for cooperative agreements. Sec. 1274.206 Document format and numbering. (a) Formats. Grant officers are authorized to use the format in Exhibit A of Appendix C to this part 1274 for the award of all cooperative agreements. Computer-generated versions and omission of inapplicable items are allowed. (b) Cooperative agreement numbering. The identification numbering system for all cooperative agreements shall conform to 48 CFR (NFS) 1804.7102-3, except that a NCC prefix will be used in lieu of the NAS prefix. Sec. 1274.207 Distribution of cooperative agreements. Copies of cooperative agreements and modifications will be provided to: Payment office, technical officer, administrative grant officer when delegation has been made, NASA Center for Aerospace Information (CASI), Attn: Document Processing Subpart, 800 Elkridge Landing Road, Linthicum Heights, Maryland 21090-2934, and any other appropriate recipient. Copies of the statement of work, contained in the Recipient's proposal and accepted by NASA, will be provided to the administrative grant officer and CASI. The cooperative agreement file will contain a record of the addresses for distributing agreements and supplements. Subpart C--Administration Sec. 1274.301 Delegation of administration. Normally, cooperative agreements will be administered by the awarding activity. Sec. 1274.302 Transfers, novations, and change of name agreements. (a) Transfer of cooperative agreements. Novation is the only means by which a cooperative agreement may be transferred from one Recipient to another. (b) Novation and change of name. All novation agreements and change of name agreements of the Recipient, prior to execution, shall be reviewed by NASA legal counsel for legal sufficiency prior to approval. Subpart D--Government Property Sec. 1274.401 Government property. The accomplishment of a cooperative agreement may require the purchase of equipment for a wide range of purposes. If this equipment is purchased with Government funds, i.e., as part of the Government contribution to the cooperative agreement, it becomes Government property and must be disposed of in accordance with 48 CFR (FAR) Part 45 at the conclusion of the cooperative agreement. In some cases, this may meet the needs of the parties. If, however, the Recipient may need the equipment to continue commercial efforts following the cooperative agreement, it should be purchased by the Recipient and included as an in-kind contribution of the Recipient. In this way, it is not procured, not even in part, with Government funds and the Government acquires no ownership interest. Procurement by the Recipient may be before or during the performance of the cooperative agreement. Subpart E--Procurement Standards Sec. 1274.501 Subcontracts. All contracts, including small purchases, awarded by Recipients and their contractors shall contain the procurement provisions of Appendix A to this part, as applicable. Subpart F--Reports and Records Sec. 1274.601 Retention and access requirements for records. (a) This Subpart sets forth requirements for record retention and access to records for awards to Recipients. (b) Financial records, supporting documents, statistical records, and all other records pertinent to an award shall be retained for a period of three years from the date of submission of the final invoice. The only exceptions are the following: (1) If any litigation, claim, or audit is started before the expiration of the 3-year period, the records shall be retained until all litigation, claims or audit findings involving the records have been resolved and final action taken. (2) Records for real property and equipment acquired with Federal funds shall be retained for 3 years after final disposition. (3) When records are transferred to or maintained by NASA, the 3- year retention requirement is not applicable to the Recipient. (4) Indirect cost rate proposals, cost allocations plans, etc. as specified in paragraph (g) of this section. (c) Copies of original records may be substituted for the original records if authorized by NASA. (d) NASA shall request transfer of certain records to its custody from Recipients when it determines that the records possess long term retention value. However, in order to avoid duplicate record keeping, NASA may make arrangements for Recipients to retain any records that are continuously needed for joint use. (e) NASA, the Inspector General, Comptroller General of the United States, or any of their duly authorized representatives, have the right of timely and unrestricted access to any books, documents, papers, or other records of Recipients that are pertinent to the awards, in order to make audits, examinations, excerpts, transcripts and copies of such documents. This right also includes timely and reasonable access to a Recipient's personnel for the purpose of interview and discussion related to such documents. The rights of access in this paragraph are not limited to the required retention period, but shall last as long as records are retained. (f) Unless required by statute, NASA shall not place restrictions on Recipients that limit public access to the records of Recipients that are pertinent to an award, except when NASA can demonstrate that such records shall be kept confidential and would have been exempted from disclosure pursuant to the Freedom of Information Act ( 5 U.S.C. 552 ) if the records had belonged to NASA. (g) Indirect cost rate proposals, cost allocations plans, etc. This paragraph applies to the following types of documents, and their supporting records: indirect cost rate computations or proposals, cost allocation plans, and any similar accounting computations of the rate at which a particular group of costs is chargeable (such as computer usage chargeback rates or composite fringe benefit rates). (1) If submitted for negotiation. If the Recipient submits to NASA or the subrecipient submits to the Recipient the proposal, plan, or other computation to form the basis for negotiation of the rate, then the 3-year retention period for its supporting records starts on the date of such submission. (2) If not submitted for negotiation. If the Recipient is not required to submit to NASA or the subrecipient is not required to submit to the Recipient the proposal, plan, or other computation for negotiation purposes, then the 3-year retention period for the proposal, plan, or other computation and its supporting records starts at the end of the fiscal year (or other accounting period) covered by the proposal, plan, or other computation. Subpart G--Suspension or Revocation Sec. 1274.701 Suspension or revocation. A cooperative agreement provides both NASA and the Recipient the ability to revoke the agreement if it is in their best interests to do so. For example, NASA may revoke the agreement if the Recipient is not making anticipated technical progress or if the Recipient materially fails to comply with the terms of the agreement. Similarly, the Recipient may revoke the agreement if technical progress is not being made, if the firms are shifting their technical emphasis, or if other technological advances have made the effort obsolete. NASA may also suspend the cooperative agreement for a short period of time if an assessment needs to be made as to whether the agreement should be revoked or not. Subpart H--After-the-Award Requirements Sec. 1274.801 Purpose. Sections 1274.802 and 1274.803 contain closeout procedures and other procedures for subsequent disallowances and adjustments. Sec. 1274.802 Closeout procedures. (a) Recipients shall submit, within 90 calendar days after the date of completion of the cooperative agreement, all financial, performance, and other reports as required by the terms and conditions of the award. Extensions may be approved when requested by the Recipient. (b) The Recipient shall account for any real and personal property acquired with Federal funds or received from the Federal Government in accordance with Subpart D of this part. Sec. 1274.803 Subsequent adjustments and continuing responsibilities. The closeout of an award does not affect any of the following: (a) Audit requirements in Sec. 1274.933. (b) Property management requirements in subpart D of this part. (c) Records retention as required in Sec. 1274.601. Subpart I--Other Provisions and Special Conditions Sec. 1274.901 Other provisions and special conditions. The provisions set forth in this subpart are to be incorporated in and made a part of all cooperative agreements. The provisions at Secs. 1274.902 through 1274.909 are to be incorporated in full text substantially as stated in this regulation. The provisions at Secs. 1274.910 through 1274.933 will be incorporated by reference in an enclosure to each cooperative agreement (see Exhibit A as listed in Appendix C to this part). For inclusion of provisions in subcontracts, see Subpart E--Procurement Standards of this part. Sec. 1274.902 Purpose (XXX 1995) The purpose of this cooperative agreement is to conduct a shared resource project that will lead to ____________. This cooperative agreement will advance the technology developments and research which have been performed on ____________. The specific objective is to ____________. This work will culminate in ____________. Sec. 1274.903 Responsibilities (XXX 1995). (a) This cooperative agreement will include substantial NASA participation during performance of the effort. NASA and the Recipient agree to the following Responsibilities, a statement of cooperative interactions to occur during the performance of this effort. NASA and the Recipient shall exert all reasonable efforts to fulfill the responsibilities stated below. (b) NASA Responsibilities. Since NASA contractors may obtain certain intellectual property rights arising from work for NASA in support of this agreement, NASA will inform Recipient whenever NASA intends to use NASA contractors to perform technical engineering services in support of this agreement. The following responsibilities are hereby set forth with anticipated start and ending dates, as appropriate: ------------------------------------------------------------------------ Responsibility Start End ------------------------------------------------------------------------ ------------------------------------------------------------------------ (c) Recipient Responsibilities. The Recipient shall be responsible for particular aspects of project performance as set forth in the technical proposal dated ____________, attached hereto (or Statement of Work dated ____________, attached hereto.) The following responsibilities are hereby set forth with anticipated start and ending dates, as appropriate: ------------------------------------------------------------------------ Responsibility Start End ------------------------------------------------------------------------ ------------------------------------------------------------------------ Sec. 1274.904 Resource Sharing Requirements (XXX 1995). (a) NASA and the Recipient will share in providing the resources necessary to perform the agreement. NASA funding and non-cash contributions (personnel, equipment, facilities, etc.) and the dollar value of the Recipient's cash and/or in-kind contribution will be on a ________ (NASA)-________ (Recipient) basis. Criteria and procedures for the allowability and allocability of cash and in-kind contributions shall be governed by Section 23, ``Cost Sharing or Matching,'' of the Attachment to OMB Circular A-110 (58 FR 62992, November 29, 1993). The ``applicable federal cost principles'' cited in OMB Circular A-110 are 48 CFR (FAR) Part 31, entitled ``Contract Cost Principles and Procedures.'' (b) The Recipient's share shall not be charged to the Government under this agreement or under any other contract, grant, or cooperative agreement, except that the Recipient's contribution may be considered as allowable IR&D costs pursuant to 48 CFR (NFS) 1831.205-18. Sec. 1274.905 Rights in Data (XXX 1995) (a) Definitions. Data means recorded information, regardless of form, the media on which it may be recorded, or the method of recording. The term includes, but is not limited to, data of a scientific or technical nature, computer software and documentation thereof, and data comprising commercial and financial information. (b) Data Categories. (1) General: Data exchanged between NASA and Recipient under this cooperative agreement will be exchanged without restriction as to its disclosure, use or duplication except as otherwise provided below in this provision. (2) Background Data: In the event it is necessary for Recipient to furnish NASA with Data which existed prior to, or produced outside of, this cooperative agreement, and such Data embodies trade secrets or comprises commercial or financial information which is privileged or confidential, and such Data is so identified with a suitable notice or legend, the Data will be maintained in confidence and disclosed and used by NASA and its contractors (under suitable protective conditions) only for the purpose of carrying out NASA's responsibilities under this cooperative agreement. Upon completion of activities under this agreement, such Data will be disposed of as requested by Recipient. (3) Data first produced by Recipient: In the event Data first produced by Recipient in carrying out Recipient's responsibilities under this cooperative agreement is furnished to NASA, and Recipient considers such Data to embody trade secrets or to comprise commercial or financial information which is privileged or confidential, and such Data is so identified with a suitable notice or legend, the Data will be maintained in confidence and disclosed and used by [``NASA'' or ``the Government,'' as appropriate] and its contractors (under suitable protective conditions) only for [insert appropriate purpose; for example: experimental; evaluation; research; development, etc.] by or on behalf of [``NASA'' or ``the Government'' as appropriate]. In order that [``NASA'' or the ``Government'', as appropriate] and its contractors may exercise the right to use such Data for the purposes designated above, NASA, upon request to the Recipient, shall have the right to review and request delivery of Data first produced by Recipient. Delivery shall be made within a time period specified by NASA. (4) Data first produced by NASA: As to Data first produced by NASA in carrying out NASA's responsibilities under this cooperative agreement and which Data would embody trade secrets or would comprise commercial or financial information that is privileged or confidential if obtained from the Recipient, such Data will, to the extent permitted by law, be appropriately marked with a notice or legend and maintained in confidence for a period of ( ) years [INSERT A PERIOD UP TO 5 YEARS] after development of the information, with the express understanding that during the aforesaid period such Data may be disclosed and used (under suitable protective conditions) by or on behalf of the Government for Government purposes only, and thereafter for any purpose whatsoever without restriction on disclosure and use. Recipient agrees not to disclose such Data to any third party without NASA's written approval until the aforementioned restricted period expires. (5) Copyright. In the event Data is exchanged with a notice indicating the Data is protected under copyright as a published copyrighted work, or are deposited for registration as a published work in the U.S. Copyright Office, the following paid-up licenses shall apply: (i) If it is indicated on the Data that the Data existed prior to, or was produced outside of, this agreement, the receiving party and others acting on its behalf, may reproduce, distribute, and prepare derivative works for the purpose of carrying out the receiving party's responsibilities under this cooperative agreement; and (ii) If the furnished Data does not contain the indication of parag
1. Operative Clause.
a. “Right of the People.” The first salient feature of
the operative clause is that it codifies a “right of the people.”
The unamended Constitution and the Bill of Rights
use the phrase “right of the people” two other times, in the
First Amendment’s Assembly-and-Petition Clause and in
the Fourth Amendment’s Search-and-Seizure Clause. The
Ninth Amendment uses very similar terminology (“The
enumeration in the Constitution, of certain rights, shall
not be construed to deny or disparage others retained by
the people”). All three of these instances unambiguously
refer to individual rights, not “collective” rights, or rights
that may be exercised only through participation in some
corporate body.5
in a context other than “rights”—the famous preamble
(“We the people”), §2 of Article I (providing that “the people”
will choose members of the House), and the Tenth
Amendment (providing that those powers not given the
Federal Government remain with “the States” or “the
people”). Those provisions arguably refer to “the people”
acting collectively—but they deal with the exercise or
reservation of powers, not rights. Nowhere else in the
Constitution does a “right” attributed to “the people” refer
to anything other than an individual right.6
What is more, in all six other provisions of the Constitution
that mention “the people,” the term unambiguously
refers to all members of the political community, not an
unspecified subset. As we said in United States v. Verdugo-
Urquidez, 494 U. S. 259, 265 (1990):
"the people" seems to have been a term of art employed in select parts of the Constitution. The Preamble declares that the Constitution is ordained and established by "the People of the United States." The Second Amendment protects "the right of the people to keep and bear Arms," and the Ninth and Tenth Amendments provide that certain rights and powers are retained by and reserved to "the people." See also U.S. Const., Amdt. 1, ("Congress shall make no law . . . abridging . . . the right of the people peaceably to assemble"); Art. I, § 2, cl. 1 ("The House of Representatives shall be composed of Members chosen every second Year by the People of the several States ") (emphasis added). While this textual exegesis is by no means conclusive, it suggests that "the people" protected by the Fourth Amendment, and by the First and Second Amendments, and to whom rights and powers are reserved in the Ninth and Tenth Amendments, refers to a class of persons who are part of a national community or who have otherwise developed sufficient connection with this country to be considered part of that community. See United States ex rel. Turner v. Williams, 194 U. S. 279 , 194 U. S. 292 (1904) (Excludable alien is not entitled to First Amendment rights, because "[h]e does not become one of the people to whom these things are secured by our Constitution by an attempt to enter forbidden by law"). The language of these Amendments contrasts with the words
"person" and "accused" used in the Fifth and Sixth Amendments regulating procedure in criminal cases.
What we know of the history of the drafting of the Fourth Amendment also suggests that its purpose was to restrict searches and seizures which might be conducted by the United States in domestic matters. The Framers originally decided not to include a provision like the Fourth Amendment, because they believed the National Government lacked power to conduct searches and seizures. See C. Warren, The Making of the Constitution 508-509 (1928); The Federalist No. 84, p. 513 (C. Rossiter ed. 1961) (A. Hamilton); 1 Annals of Cong. 437 (1789) (statement of J. Madison). Many disputed the original view that the Federal Government possessed only narrow delegated powers over domestic affairs, however, and ultimately felt an Amendment prohibiting unreasonable searches and seizures was necessary. Madison, for example, argued that
"there is a clause granting to Congress the power to make all laws which shall be necessary and proper for carrying into execution all of the powers vested in the Government of the United States,"
and that general warrants might be considered "necessary" for the purpose of collecting revenue. Id. at 438. The driving force behind the adoption of the Amendment, as suggested by Madison's advocacy, was widespread hostility among the former Colonists to the issuance of writs of assistance empowering revenue officers to search suspected places for smuggled goods, and general search warrants permitting the search of private houses, often to uncover papers that might be used to convict persons of libel. See Boyd v. United States, 116 U. S. 616 , 116 U. S. 625 -626 (1886). The available historical data show, therefore, that the purpose of the Fourth Amendment was to protect the people of the United States against arbitrary action by their own Government; it was never suggested that the provision was intended to restrain the actions of the Federal Government against aliens outside of the United States territory.
There is likewise no indication that the Fourth Amendment was understood by contemporaries of the Framers to apply to activities of the United States directed against aliens in foreign territory or in international waters. Only seven years after the ratification of the Amendment, French interference with American commercial vessels engaged in neutral trade triggered what came to be known as the "undeclared war" with France. In an Act to "protect the Commerce of the United States" in 1798, Congress authorized President Adams to
"instruct the commanders of the public armed vessels which are, or which shall be employed in the service of the United States, to subdue, seize and take any armed French vessel, which shall be found within the jurisdictional limits of the United States, or elsewhere, on the high seas."
§ 1 of An Act Further to Protect the Commerce of the United States, Ch. 68, 1 Stat. 578. This public naval force consisted of only 45 vessels, so Congress also gave the President power to grant to the owners of private armed ships and vessels of the United States "special commissions," which would allow them
"the same license and authority for the subduing, seizing and capturing any armed French vessel, and for the recapture of the vessels, goods and effects of the people of the United States, as the public armed vessels of the United States may by law have."
§ 2, 1 Stat. 579; see U.S. Const., Art. I, § 8, cl. 11 (Congress has power to grant letters of marque and reprisal). Under the latter provision, 365 private armed vessels were commissioned before March 1, 1799, see G. Allen, Our Naval War with France 59 (1967); together, these enactments resulted in scores of seizures of foreign vessels under congressional authority. See M. Palmer, Stoddert's War: Naval Operations during the Quasi-War with France 1798-1801, p. 235 (1987). See also An Act further to suspend the Commercial Intercourse between the United States and France, Ch. 2, 1 Stat. 613. Some commanders were held liable by this Court for unlawful seizures because their actions were beyond the scope of the congressional
grant of authority, see, e.g., 6 U. S. 177 -178 (1804); cf. 5 U. S. 31 , (1801) (seizure of neutral ship lawful where American captain had probable cause to believe vessel was French), but it was never suggested that the Fourth Amendment restrained the authority of Congress or of United States agents to conduct operations such as this.
The global view taken by the Court of Appeals of the application of the Constitution is also contrary to this Court's decisions in the Insular Cases, which held that not every constitutional provision applies to governmental activity even where the United States has sovereign power. See, e.g., Balzac v. Porto Rico, 258 U. S. 298 (1922) (Fifth Amendment right to jury trial inapplicable in Puerto Rico); Ocampo v. United States, 234 U. S. 91 (1914) (Sixth Amendment grand jury provision inapplicable in Philippines); Dorr v. United States, 195 U. S. 138 (1904) (jury trial provision inapplicable in Philippines); Hawaii v. Mankichi, 190 U. S. 197 (1903) (provisions on indictment by grand jury and jury trial inapplicable in Hawaii); Downes v. Bidwell, 182 U. S. 244 (1901) (revenue clauses of Constitution inapplicable to Puerto Rico). In Dorr, we declared the general rule that in an unincorporated territory -- one not clearly destined for statehood -- Congress was not required to adopt
"a system of laws which shall include the right of trial by jury, and that the Constitution does not without legislation and of its own force, carry such right to territory so situated. "
195 U.S. at 195 U. S. 149 (emphasis added). Only "fundamental" constitutional rights are guaranteed to inhabitants of those territories. Id. at 148; Balzac, supra, 258 U.S. at 258 U. S. 312 -313; see Examining Board of Engineers, Architects and Surveyors v. Flores de Otero, 426 U. S. 572 , 426 U. S. 599 , n. 30 (1976). If that is true with respect to territories ultimately governed by Congress, respondent's claim that the protections of the Fourth Amendment extend to aliens in foreign nations is even weaker. And certainly, it is not open to us in light of the Insular Cases to endorse the
view that every constitutional provision applies wherever the United States Government exercises its power.
Indeed, we have rejected the claim that aliens are entitled to Fifth Amendment rights outside the sovereign territory of the United States. In Johnson v. Eisentrager, 339 U. S. 763 (1950), the Court held that enemy aliens arrested in China and imprisoned in Germany after World War II could not obtain writs of habeas corpus in our federal courts on the ground that their convictions for war crimes had violated the Fifth Amendment and other constitutional provisions. The Eisentrager opinion acknowledged that in some cases constitutional provisions extend beyond the citizenry; "[t]he alien . . . has been accorded a generous and ascending scale of rights as he increases his identity with our society." Id. at 339 U. S. 770 . But our rejection of extraterritorial application of the Fifth Amendment was emphatic:
"Such extraterritorial application of organic law would have been so significant an innovation in the practice of governments that, if intended or apprehended, it could scarcely have failed to excite contemporary comment. Not one word can be cited. No decision of this Court supports such a view. Cf. Downes v. Bidwell, 182 U. S. 244 (1901). None of the learned commentators on our Constitution has even hinted at it. The practice of every modern government is opposed to it."
Id. at 339 U. S. 784 . If such is true of the Fifth Amendment, which speaks in the relatively universal term of "person," it would seem even more true with respect to the Fourth Amendment, which applies only to "the people."
To support his all-encompassing view of the Fourth Amendment, respondent points to language from a plurality opinion in Reid v. Covert, 354 U. S. 1 (1957). Reid involved an attempt by Congress to subject the wives of American servicemen to trial by military tribunals without the protection of the Fifth and Sixth Amendments. The Court held that it was unconstitutional to apply the Uniform Code of Military
Justice to the trials of the American women for capital crimes. Four Justices "reject[ed] the idea that when the United States acts against citizens abroad it can do so free of the Bill of Rights." Id. at 354 U. S. 5 (emphasis added). The plurality went on to say:
"The United States is entirely a creature of the Constitution. Its power and authority have no other source. It can only act in accordance with all the limitations imposed by the Constitution. When the Government reaches out to punish a citizen who is abroad, the shield which the Bill of Rights and other parts of the Constitution provide to protect his life and liberty should not be stripped away just because he happens to be in another land."
Id. at 354 U. S. 5 -6 (emphasis added; footnote omitted). Respondent urges that we interpret this discussion to mean that federal officials are constrained by the Fourth Amendment wherever and against whomever they act. But the holding of Reid stands for no such sweeping proposition: it decided that United States citizens stationed abroad could invoke the protection of the Fifth and Sixth Amendments. The concurring opinions by Justices Frankfurter and Harlan in Reid resolved the case on much narrower grounds than the plurality and declined even to hold that United States citizens were entitled to the full range of constitutional protections in all overseas criminal prosecutions. See id. at 354 U. S. 75 (Harlan, J., concurring in result) ("I agree with my brother FRANKFURTER that . . . we have before us a question analogous, ultimately, to issues of due process; one can say, in fact, that the question of which specific safeguards of the Constitution are appropriately to be applied in a particular context overseas can be reduced to the issue of what process is due' a defendant in the particular circumstances of a particular case"). Since respondent is not a United States citizen, he can derive no comfort from the Reid holding.
Verdugo-Urquidez also relies on a series of cases in which we have held that aliens enjoy certain constitutional rights.
See, e.g., Plyler v. Doe, 457 U. S. 202 , 457 U. S. 211 -212 (1982) (illegal aliens protected by Equal Protection Clause); Kwong Hai Chew v. Colding, 344 U. S. 590 , 344 U. S. 596 (1953) (resident alien is a "person" within the meaning of the Fifth Amendment); Bridges v. Wixon, 326 U. S. 135 , 326 U. S. 148 (1945) (resident aliens have First Amendment rights); Russian Volunteer Fleet v. United States, 282 U. S. 481 (1931) (Just Compensation Clause of Fifth Amendment); Wong Wing v. United States, 163 U. S. 228 , 163 U. S. 238 (1896) (resident aliens entitled to Fifth and Sixth Amendment rights); Yick Wo v. Hopkins, 118 U. S. 356 , 118 U. S. 369 (1886) (Fourteenth Amendment protects resident aliens). These cases, however, establish only that aliens receive constitutional protections when they have come within the territory of the United States and developed substantial connections with this country. See, e.g., Plyler, supra, 457 U.S. at 457 U. S. 212 (The provisions of the Fourteenth Amendment " are universal in their application, to all persons within the territorial jurisdiction. . . . '") (quoting Yick Wo, supra, 118 U.S. at 118 U. S. 369 ); Kwong Hai Chew, supra, 344 U.S. at 344 U. S. 596 , n. 5 ("The Bill of Rights is a futile authority for the alien seeking admission for the first time to these shores. But once an alien lawfully enters and resides in this country he becomes invested with the rights guaranteed by the Constitution to all people within our borders.") (quoting Bridges, supra, 326 U.S. at 326 U. S. 161 (concurring opinion) (emphasis added)). Respondent is an alien who has had no previous significant voluntary connection with the United States, so these cases avail him not.
Justice STEVENS' concurrence in the judgment takes the view that, even though the search took place in Mexico, it is nonetheless governed by the requirements of the Fourth Amendment because respondent was "lawfully present in the United States . . . even though he was brought and held here against his will." Post at 494 U. S. 279 . But this sort of presence -- lawful but involuntary -- is not of the sort to indicate any substantial connection with our country. The extent to which respondent might claim the protection of the Fourth Amendment
if the duration of his stay in the United States were to be prolonged -- by a prison sentence, for example -- we need not decide. When the search of his house in Mexico took place, he had been present in the United States for only a matter of days. We do not think the applicability of the Fourth Amendment to the search of premises in Mexico should turn on the fortuitous circumstance of whether the custodian of its nonresident alien owner had or had not transported him to the United States at the time the search was made.
The Court of Appeals found some support for its holding in our decision in INS v. Lopez-Mendoza, 468 U. S. 1032 (1984), where a majority of Justices assumed that the Fourth Amendment applied to illegal aliens in the United States. We cannot fault the Court of Appeals for placing some reliance on the case, but our decision did not expressly address the proposition gleaned by the court below. The question presented for decision in Lopez-Mendoza was limited to whether the Fourth Amendment's exclusionary rule should be extended to civil deportation proceedings; it did not encompass whether the protections of the Fourth Amendment extend to illegal aliens in this country. The Court often grants certiorari to decide particular legal issues while assuming without deciding the validity of antecedent propositions, compare, e.g., Maine v. Thiboutot, 448 U. S. 1 (1980) (assuming State is a "person" within the meaning of 42 U.S.C. § 1983) with Will v. Michigan Dept. of State Police, 491 U. S. 58 (1989) (State is not a "person"), and such assumptions -- even on jurisdictional issues -- are not binding in future cases that directly raise the questions. Id. at 491 U. S. 63 , n. 4; Hagans v. Levine, 415 U. S. 528 , 415 U. S. 535 , n. 5 (1974). Our statements in Lopez-Mendoza are therefore not dispositive of how the Court would rule on a Fourth Amendment claim by illegal aliens in the United States if such a claim were squarely before us. Even assuming such aliens would be entitled to Fourth Amendment protections, their situation is
different from respondent's. The illegal aliens in Lopez-Mendoza were in the United States voluntarily and presumably had accepted some societal obligations; but respondent had no voluntary connection with this country that might place him among "the people" of the United States.
Respondent also contends that to treat aliens differently from citizens with respect to the Fourth Amendment somehow violates the equal protection component of the Fifth Amendment to the United States Constitution. He relies on Graham v. Richardson, 403 U. S. 365 (1971), and Foley v. Connelie, 435 U. S. 291 (1978), for this proposition. But the very cases previously cited with respect to the protection extended by the Constitution to aliens undermine this claim. They are constitutional decisions of this Court expressly according differing protection to aliens than to citizens, based on our conclusion that the particular provisions in question were not intended to extend to aliens in the same degree as to citizens. Cf. Mathews v. Diaz, 426 U. S. 67 , 426 U. S. 79 -80 (1976) ("In the exercise of its broad power over naturalization and immigration, Congress regularly makes rules that would be unacceptable if applied to citizens").
Not only are history and case law against respondent, but as pointed out in Johnson v. Eisentrager, supra, the result of accepting his claim would have significant and deleterious consequences for the United States in conducting activities beyond its boundaries. The rule adopted by the Court of Appeals would apply not only to law enforcement operations abroad, but also to other foreign policy operations which might result in "searches or seizures." The United States frequently employs armed forces outside this country -- over 200 times in our history -- for the protection of American citizens or national security. Congressional Research Service, Instances of Use of United States Armed Forces Abroad, 1798-1983 (E. Collier ed. 1983). Application of the Fourth Amendment to those circumstances could significantly disrupt the ability of the political
branches to respond to foreign situations involving our national interest. Were respondent to prevail, aliens with no attachment to this country might well bring actions for damages to remedy claimed violations of the Fourth Amendment in foreign countries or in international waters. See Bivens v. Six Unknown Federal Narcotics Agents, 403 U. S. 388 (1971); cf. Tennessee v. Garner, 471 U. S. 1 (1985); Graham v. Connor, 490 U. S. 386 (1989). Perhaps a Bivens action might be unavailable in some or all of these situations due to " special factors counselling hesitation,'" see Chappell v. Wallace, 462 U. S. 296 , 462 U. S. 298 (1983) (quoting Bivens, supra, 403 U.S. at 403 U. S. 396 ), but the Government would still be faced with case-by-case adjudications concerning the availability of such an action. And even were Bivens deemed wholly inapplicable in cases of foreign activity, that would not obviate the problems attending the application of the Fourth Amendment abroad to aliens. The Members of the Executive and Legislative Branches are sworn to uphold the Constitution, and they presumably desire to follow its commands. But the Court of Appeals' global view of its applicability would plunge them into a sea of uncertainty as to what might be reasonable in the way of searches and seizures conducted abroad. Indeed, the Court of Appeals held that absent exigent circumstances, United States agents could not effect a "search or seizure" for law enforcement purposes in a foreign country without first obtaining a warrant -- which would be a dead letter outside the United States -- from a magistrate in this country. Even if no warrant were required, American agents would have to articulate specific facts giving them probable cause to undertake a search or seizure if they wished to comply with the Fourth Amendment as conceived by the Court of Appeals.
We think that the text of the Fourth Amendment, its history, and our cases discussing the application of the Constitution to aliens and extraterritorially require rejection of respondent's claim. At the time of the search, he was a citizen and resident of Mexico with no voluntary attachment to the
United States, and the place searched was located in Mexico. Under these circumstances, the Fourth Amendment has no application.
For better or for worse, we live in a world of nation-states in which our Government must be able to "functio[n] effectively in the company of sovereign nations." Perez v. Brownell, 356 U. S. 44 , 356 U. S. 57 (1958). Some who violate our laws may live outside our borders under a regime quite different from that which obtains in this country. Situations threatening to important American interests may arise half-way around the globe, situations which in the view of the political branches of our Government require an American response with armed force. If there are to be restrictions on searches and seizures which occur incident to such American action, they must be imposed by the political branches through diplomatic understanding, treaty, or legislation.
The judgment of the Court of Appeals is accordingly
Reversed.
Justice KENNEDY, concurring.
I agree that no violation of the Fourth Amendment has occurred and that we must reverse the judgment of the Court of Appeals. Although some explanation of my views is appropriate given the difficulties of this case, I do not believe they depart in fundamental respects from the opinion of the Court, which I join.
In cases involving the extraterritorial application of the Constitution, we have taken care to state whether the person claiming its protection is a citizen, see, e.g., Reid v. Covert, 354 U. S. 1 (1957), or an alien, see, e.g., Johnson v. Eisentrager, 339 U. S. 763 (1950). The distinction between citizens and aliens follows from the undoubted proposition that the Constitution does not create, nor do general principles of law create, any juridical relation between our country and some undefined, limitless class of noncitizens who are beyond our territory. We should note, however, that the absence of
this relation does not depend on the idea that only a limited class of persons ratified the instrument that formed our Government. Though it must be beyond dispute that persons outside the United States did not and could not assent to the Constitution, that is quite irrelevant to any construction of the powers conferred or the limitations imposed by it. As Justice Story explained in his Commentaries:
"A government may originate in the voluntary compact or assent of the people of several states, or of a people never before united, and yet when adopted and ratified by them, be no longer a matter resting in compact; but become an executed government or constitution, a fundamental law, and not a mere league. But the difficulty in asserting it to be a compact between the people of each state, and all the people of the other states is, that the constitution itself contains no such expression, and no such designation of parties."
1 J. Story, Commentaries on the Constitution § 365, p. 335 (1833) (footnote omitted). The force of the Constitution is not confined because it was brought into being by certain persons who gave their immediate assent to its terms.
For somewhat similar reasons, I cannot place any weight on the reference to "the people" in the Fourth Amendment as a source of restricting its protections. With respect, I submit these words do not detract from its force or its reach. Given the history of our Nation's concern over warrantless and unreasonable searches, explicit recognition of "the right of the people" to Fourth Amendment protection may be interpreted to underscore the importance of the right, rather than to restrict the category of persons who may assert it. The restrictions that the United States must observe with reference to aliens beyond its territory or jurisdiction depend, as a consequence, on general principles of interpretation, not on an inquiry as to who formed the Constitution or a construction that some rights are mentioned as being those of "the people."
I take it to be correct, as the plurality opinion in Reid v. Covert sets forth, that the Government may act only as the Constitution authorizes, whether the actions in question are foreign or domestic. See 354 U.S. at 354 U. S. 6 . But this principle is only a first step in resolving this case. The question before us then becomes what constitutional standards apply when the Government acts, in reference to an alien, within its sphere of foreign operations. We have not overruled either In re Ross, 140 U. S. 453 (1891), or the so-called Insular Cases ( i.e., Downes v. Bidwell, 182 U. S. 244 (1901); Hawaii v. Mankichi, 190 U. S. 197 (1903); Dorr v. United States, 195 U. S. 138 (1904); Balzac v. Porto Rico, 258 U. S. 298 (1922)). These authorities, as well as United States v. Curtiss-Wright Export Corp., 299 U. S. 304 , 299 U. S. 318 (1936), stand for the proposition that we must interpret constitutional protections in light of the undoubted power of the United States to take actions to assert its legitimate power and authority abroad. Justice Harlan made this observation in his opinion concurring in the judgment in Reid v. Covert:
"I cannot agree with the suggestion that every provision of the Constitution must always be deemed automatically applicable to American citizens in every part of the world. For Ross and the Insular Cases do stand for an important proposition, one which seems to me a wise and necessary gloss on our Constitution. The proposition is, of course, not that the Constitution 'does not apply' overseas, but that there are provisions in the Constitution which do not necessarily apply in all circumstances in every foreign place. In other words, it seems to me that the basic teaching of Ross and the Insular Cases is that there is no rigid and abstract rule that Congress, as a condition precedent to exercising power over Americans overseas, must exercise it subject to all the guarantees of the Constitution, no matter what the conditions and considerations are that would make adherence to a
specific guarantee altogether impracticable and anomalous."
354 U.S. at 354 U. S. 74 .
The conditions and considerations of this case would.make adherence to the Fourth Amendment's warrant requirement impracticable and anomalous. Just as the Constitution in the Insular Cases did not require Congress to implement all constitutional guarantees in its territories because of their "wholly dissimilar traditions and institutions," the Constitution does not require United States agents to obtain a warrant when searching the foreign home of a nonresident alien. If the search had occurred in a residence within the United States, I have little doubt that the full protections of the Fourth Amendment would apply. But that is not this case. The absence of local judges or magistrates available to issue warrants, the differing and perhaps unascertainable conceptions of reasonableness and privacy that prevail abroad, and the need to cooperate with foreign officials all indicate that the Fourth Amendment's warrant requirement should not apply in Mexico as it does in this country. For this reason, in addition to the other persuasive justifications stated by the Court, I agree that no violation of the Fourth Amendment has occurred in the case before us. The rights of a citizen, as to whom the United States has continuing obligations, are not presented by this case.
I do not mean to imply, and the Court has not decided, that persons in the position of the respondent have no constitutional protection. The United States is prosecuting a foreign national in a court established under Article III, and all of the trial proceedings are governed by the Constitution. All would agree, for instance, that the dictates of the Due Process Clause of the Fifth Amendment protect the defendant. Indeed, as Justice Harlan put it,
"the question of which specific safeguards . . . are appropriately to be applied in a particular context . . . can be reduced to the issue of what process is 'due' a defendant in the particular circumstances of a particular case."
Reid, 354 U.S. at 354 U. S. 75 . Nothing approaching a violation of due process has occurred in this case.
Justice STEVENS, concurring in judgment.
In my opinion aliens who are lawfully present in the United States are among those "people" who are entitled to the protection of the Bill of Rights, including the Fourth Amendment. Respondent is surely such a person even though he was brought and held here against his will. I therefore cannot join the Court's sweeping opinion.{*} I do agree, however, with the Government's submission that the search conducted by the United States agents with the approval and cooperation of the Mexican authorities was not "unreasonable" as that term is used in the first clause of the Amendment. I do not believe the Warrant Clause has any application to searches of noncitizens' homes in foreign jurisdictions because American magistrates have no power to authorize such searches. I therefore concur in the Court's judgment.
* The Court's interesting historical discussion is simply irrelevant to the question whether an alien lawfully within the sovereign territory of the United States is entitled to the protection of our laws. Nor is comment on illegal aliens' entitlement to the protections of the Fourth Amendment necessary to resolve this case.
Justice BRENNAN, with whom Justice MARSHALL joins, dissenting.
Today the Court holds that although foreign nationals must abide by our laws even when in their own countries, our Government need not abide by the Fourth Amendment when it investigates them for violations of our laws. I respectfully dissent.
Particularly in the past decade, our Government has sought, successfully, to hold foreign nationals criminally liable under federal laws for conduct committed entirely beyond the territorial limits of the United States that nevertheless has effects
in this country. Foreign nationals must now take care not to violate our drug laws, [ Footnote 2/1 ] our antitrust laws, [ Footnote 2/2 ] our securities laws, [ Footnote 2/3 ] and a host of other federal criminal statutes. [ Footnote 2/4 ] The
enormous expansion of federal criminal jurisdiction outside our Nation's boundaries has led one commentator to suggest that our country's three largest exports are now "rock music, blue jeans, and United States law." Grundman, The New Imperialism: The Extraterritorial Application of United States Law, 14 Int'l Law. 257, 257 (1980).
The Constitution is the source of Congress' authority to criminalize conduct, whether here or abroad, and of the Executive's authority to investigate and prosecute such conduct. But the same Constitution also prescribes limits on our Government's authority to investigate, prosecute, and punish criminal conduct, whether foreign or domestic. As a plurality of the Court noted in Reid v. Covert, 354 U. S. 1 , 354 U. S. 5 -6 (1957):
"The United States is entirely a creature of the Constitution. Its power and authority have no other source. It can only act in accordance with all the limitations imposed by the Constitution."
(Footnotes omitted.) See also ante at 494 U. S. 277 (KENNEDY, J., concurring) ("[T]he Government may act only as the Constitution authorizes, whether the actions in question are foreign or domestic"). In particular, the Fourth Amendment provides:
"The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated; and no Warrants shall issue but upon probable cause, supported by
Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."
The Court today creates an antilogy: the Constitution authorizes our Government to enforce our criminal laws abroad, but when Government agents exercise this authority, the Fourth Amendment does not travel with them. This cannot be. At the very least, the Fourth Amendment is an unavoidable correlative of the Government's power to enforce the criminal law.
the 2010 Horizontal Merger Guidelines outline the principal analytical techniques, practices, and the enforcement policy of the FTC and DOJ with respect to mergers and acquisitions involving actual or potential competitors (“horizontal mergers”) under the federal antitrust laws. The relevant statutory provisions include Section 7 of the Clayton Act, 15 U.S.C. § 18 ; Sections 1 and 2 of the Sherman Act, 15 U.S.C. § 1 and 15 U.S.C. § 2 ; and Section 5 of the Federal Trade Commission Act, 15 U.S.C. § 45 . Notwithstanding, it is Section 7 of the Clayton Act that is most often implicated. Section 7 of the Clayton Act prohibits mergers if “in any line of commerce or in any activity affecting commerce in any section of the country, the effect of such acquisition may be substantially to lessen competition, or to tend to create a monopoly.”
The revised Guidelines are derived from the collective experience and expertise of the FTC and DOJ acquired through assessing thousands of transactions. As a result of this experience these two agencies have identified certain types of evidence that help them characterize the influence and impact a particular merger is likely to have on the marketplace. Hence, a primary goal of the 2010 guidelines is to help the agencies to uniformly identify and challenge competitively harmful mergers while avoiding unnecessary interference with mergers that either are competitively beneficial or likely will have no competitive impact on the marketplace. A byproduct is to give the business community information about what types of mergers are likely to result in the most scrutiny.
The Horizontal Merger Guidelines, which were first adopted in 1968, and revised in 1992, serve as an outline of the main analytical techniques, practices and enforcement policies the FTC and the Department of Justice use to evaluate mergers and acquisitions involving actual or potential competitors under federal antitrust laws. The guidelines issued today take into account the legal and economic developments since the 1992 guidelines were issued. They are not intended to represent a change in the direction of merger review policy, but to offer more clarity on the merger review process to better assist the business community and, in particular, parties to mergers and acquisitions.
The 2010 Guidelines are different from the 1992 Guidelines in several important ways. The guidelines:
With respect to innovation, the Guidelines explain that the FTC and DOJ “may consider whether a merger is likely to diminish innovation competition by encouraging the merged firm to curtail its innovative efforts below the level that would prevail in the absence of the merger.” The Guidelines explain that that curtailment of innovation that would be troubling could take several forms. Specifically, curtailment of innovation could be of concern if it is believed that the merger would reduce incentive to continue with an existing product-development effort or if there would be a reduced incentive to initiate development of new products.
Conversely, the Guidelines also address when a merger might seem appropriate. For example, the FTC and DOJ will also consider whether the merger is likely to foster innovation that would not otherwise have take place, by bringing together complementary capabilities that could not otherwise be combined absent a merged company. Following this thinking, the Guidelines also explain that one primary benefit of mergers is their potential to generate significant efficiencies and thus enhance the merged firm's ability and incentive to compete, which may result in lower prices, improved quality, enhanced service, or new products. For example, efficiencies achieved through merger may lead to more innovation and new or improved products.
“Because of the hard work of all involved at both agencies, private parties and judges will be better equipped to understand how the agencies evaluate deals. That improvement in clarity and predictability will benefit everyone,” said FTC Chairman Jon Leibowitz. “We thank Christine Varney and her team at DOJ for their terrific work on this initiative, demonstrating once again how effectively and collegially the two agencies work together.”
“The revised guidelines better reflect the agencies' actual practices,” said Christine Varney, Assistant Attorney General in charge of the Department of Justice's Antitrust Division. “The guidelines provide more clarity and transparency, and will provide businesses with an even greater understanding of how we review transactions. This has been a successful process due to the commitment of the talented staff from both agencies and the excellent working relationship with the FTC led by Jon Leibowitz.”
The Fourth Amendment guarantees the right of "the people" to be free from unreasonable searches and seizures and provides that a warrant shall issue only upon presentation of an oath or affirmation demonstrating probable cause and particularly describing the place to be searched and the persons or things to be seized. According to the majority, the term "the people" refers to "a class of persons who are part of a national community or who have otherwise developed sufficient connection with this country to be considered part of that community." Ante at 494 U. S. 265 . The Court admits that "the people" extends beyond the citizenry, but leaves the precise contours of its "sufficient connection" test unclear. At one point the majority hints that aliens are protected by the Fourth Amendment only when they come within the United States and develop "substantial connections" with our country. Ante at 494 U. S. 271 . At other junctures, the Court suggests that an alien's presence in the United States must be voluntary [ Footnote 2/5 ] and that the alien must have "accepted some societal
obligations." [ Footnote 2/6 ] Ante at 494 U. S. 273 . At yet other points, the majority implies that respondent would be protected by the Fourth Amendment if the place searched were in the United States. [ Footnote 2/7 ] Ante at 494 U. S. 266 , 494 U. S. 274 -275.
What the majority ignores, however, is the most obvious connection between Verdugo-Urquidez and the United States: he was investigated and is being prosecuted for violations of United States law and may well spend the rest of his life in a United States prison. The "sufficient connection" is supplied not by Verdugo-Urquidez, but by the Government.
Respondent is entitled to the protections of the Fourth Amendment because our Government, by investigating him and attempting to hold him accountable under United States criminal laws, has treated him as a member of our community for purposes of enforcing our laws. He has become, quite literally, one of the governed. Fundamental fairness and the ideals underlying our Bill of Rights compel the conclusion that when we impose "societal obligations," ante at 494 U. S. 273 , such as the obligation to comply with our criminal laws, on foreign nationals, we in turn are obliged to respect certain correlative rights, among them the Fourth Amendment.
By concluding that respondent is not one of "the people" protected by the Fourth Amendment, the majority disregards basic notions of mutuality. If we expect aliens to obey our laws, aliens should be able to expect that we will obey our Constitution when we investigate, prosecute, and punish them. We have recognized this fundamental principle of mutuality since the time of the Framers. James Madison, universally recognized as the primary architect of the Bill of Rights, emphasized the importance of mutuality when he spoke out against the Alien and Sedition Acts less than a decade after the adoption of the Fourth Amendment:
"[I]t does not follow, because aliens are not parties to the Constitution, as citizens are parties to it, that, whilst they actually conform to it, they have no right to its protection. Aliens are no more parties to the laws than they are parties to the Constitution; yet it will not be disputed that, as they owe, on one hand, a temporary obedience, they are entitled, in return, to their protection and advantage."
Madison's Report on the Virginia Resolutions (1800), reprinted in 4 Elliot's Debates 556 (2d ed. 1836).
Mutuality is essential to ensure the fundamental fairness that underlies our Bill of Rights. Foreign nationals investigated and prosecuted for alleged violations of United States criminal laws are just as vulnerable to oppressive government
behavior as are United States citizens investigated and prosecuted for the same alleged violations. Indeed, in a case such as this where the Government claims the existence of an international criminal conspiracy, citizens and foreign nationals may be codefendants, charged under the same statutes for the same conduct and facing the same penalties if convicted. They may have been investigated by the same agents pursuant to the same enforcement authority. When our Government holds these co-defendants to the same standards of conduct, the Fourth Amendment, which protects the citizen from unreasonable searches and seizures, should protect the foreign national as well.
Mutuality also serves to inculcate the values of law and order. By respecting the rights of foreign nationals, we encourage other nations to respect the rights of our citizens. Moreover, as our Nation becomes increasingly concerned about the domestic effects of international crime, we cannot forget that the behavior of our law enforcement agents abroad sends a powerful message about the rule of law to individuals everywhere. As Justice Brandeis warned in Olmstead v. United States, 277 U. S. 438 (1928):
"If the Government becomes a lawbreaker, it breeds contempt for law; it invites every man to become a law unto himself; it invites anarchy. To declare that in the administration of the criminal law the end justifies the means . . . would bring terrible retribution. Against that pernicious doctrine, this Court should resolutely set its face."
Id. at 277 U. S. 485 (dissenting opinion). This principle is no different when the United States applies its rules of conduct to foreign nationals. If we seek respect for law and order, we must observe these principles ourselves. Lawlessness breeds lawlessness.
Finally, when United States agents conduct unreasonable searches, whether at home or abroad, they disregard our Nation's values. For over 200 years, our country has considered itself the world's foremost protector of liberties. The
privacy and sanctity of the home have been primary tenets of our moral, philosophical, and judicial beliefs. [ Footnote 2/8 ] Our national interest is defined by those values and by the need to preserve our own just institutions. We take pride in our commitment to a government that cannot, on mere whim, break down doors and invade the most personal of places. We exhort other nations to follow our example. How can we explain to others -- and to ourselves -- that these long cherished ideals are suddenly of no consequence when the door being broken belongs to a foreigner?
The majority today brushes aside the principles of mutuality and fundamental fairness that are central to our Nation's constitutional conscience. The Court articulates a "sufficient connection" test but then refuses to discuss the underlying principles upon which any interpretation of that test must rest. I believe that by placing respondent among those governed by federal criminal laws and investigating him for violations of those laws, the Government has made him a part of our community for purposes of the Fourth Amendment.
B
In its effort to establish that respondent does not have sufficient connection to the United States to be considered one of "the people" protected by the Fourth Amendment, the Court relies on the text of the Amendment, historical evidence, and cases refusing to apply certain constitutional provisions outside the United States. None of these, however, justifies the majority's cramped interpretation of the Fourth Amendment's applicability.
The majority looks to various constitutional provisions and suggests that " the people' seems to have been a term of art." Ante at 494 U. S. 265 . But the majority admits that its "textual exegesis is by no means conclusive." Ante at 494 U. S. 265 . [ Footnote 2/9 ] One Member of the majority even states that he "cannot place any weight on the reference to `the people' in the Fourth Amendment as a source of restricting its protections." Ante at 494 U. S. 276 (KENNEDY, J., concurring). The majority suggests a restrictive interpretation of those with "sufficient connection" to this country to be considered among "the people," but the term "the people" is better understood as a rhetorical counterpoint to "the government," such that rights that were reserved to "the people" were to protect all those subject to "the government." Cf. New Jersey v. T.L.0., 469 U. S. 325 , 469 U. S. 335 (1985) ("[T]he Court has long spoken of the Fourth Amendment's strictures as restraints imposed upon `governmental action'"). "The people" are "the governed."
In drafting both the Constitution and the Bill of Rights, the Framers strove to create a form of government decidedly different from their British heritage. Whereas the British Parliament was unconstrained, the Framers intended to create a government of limited powers. See B. Bailyn, The Ideological Origins of the American Revolution 182 (1967); 1 The Complete Anti-Federalist 65 (H. Storing ed. 1981). The colonists considered the British government dangerously omnipotent. After all, the British declaration of rights in
1688 had been enacted not by the people, but by Parliament. The Federalist No. 84, p. 439 (M. Beloff ed. 1987). Americans vehemently attacked the notion that rights were matters of " favor and grace,'" given to the people from the government. B. Bailyn, supra, at 187 (quoting John Dickinson).
Thus, the Framers of the Bill of Rights did not purport to "create" rights. Rather, they designed the Bill of Rights to prohibit our Government from infringing rights and liberties presumed to be preexisting. See, e.g., U.S. Const., Amdt. 9 ("The enumeration in the Constitution of certain rights, shall not be construed to deny or disparage others retained by the people"). The Fourth Amendment, for example, does not create a new right of security against unreasonable searches and seizures. It states that
"[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated. . . ."
The focus of the Fourth Amendment is on what the Government can and cannot do, and how it may act, not on against whom these actions may be taken. Bestowing rights and delineating protected groups would have been inconsistent with the drafters' fundamental conception of a Bill of Rights as a limitation on the Government's conduct with respect to all whom it seeks to govern. It is thus extremely unlikely that the Framers intended the narrow construction of the term "the people" presented today. by the majority.
The drafting history of the Fourth Amendment also does not support the majority's interpretation of "the people." First, the drafters chose not to limit the right against unreasonable searches and seizures in more specific ways. They could have limited the right to "citizens," "freemen," "residents," or "the American people." The conventions called to ratify the Constitution in New York and Virginia, for example, each recommended an amendment stating, "That every freeman has a right to be secure from all unreasonable searches and seizures. . . . " W. Cuddihy, Search and Seizure
in Great Britain and the American Colonies, pt. 2, p. 571, n. 129, 574, n. 134 (1974). But the drafters of the Fourth Amendment rejected this limitation, and instead provided broadly for "[t]he right of the people to be secure in their persons, houses, papers, and effects." Second, historical materials contain no evidence that the drafters intended to limit the availability of the right expressed in the Fourth Amendment. [ Footnote 2/10 ] The Amendment was introduced on the floor of Congress, considered by Committee, debated by the House of Representatives and the Senate, and submitted to the 13 States for approval. Throughout that entire process, no speaker or commentator, pro or con, referred to the term "the people" as a limitation.
The Court also relies on a series of cases dealing with the application of criminal procedural protections outside of the United States to conclude that "not every constitutional provision applies to governmental activity even where the United States has sovereign power." Ante at 494 U. S. 268 . None of these cases, however, purports to read the phrase "the people" as limiting the protections of the Fourth Amendment to those with "sufficient connection" to the United States, and thus none gives content to the majority's analysis. The cases shed no light on the question of whether respondent -- a citizen of a nonenemy nation being tried in a United States federal court -- is one of "the people" protected by the Fourth Amendment.
The majority mischaracterizes Johnson v. Eisentrager, 339 U. S. 763 (1950), as having "rejected the claim that aliens are entitled to Fifth Amendment rights outside the sovereign territory of the United States." Ante at 494 U. S. 269 . In Johnson, 21 German nationals were convicted of engaging in continued military activity against the United States after the surrender of Germany and before the surrender of Japan in World War II. The Court held that
"the Constitution does not confer a right of personal security or an immunity from military trial and punishment upon an alien enemy engaged in the hostile service of a government at war with the United States."
Johnson, 339 U.S. at 339 U. S. 785 (emphasis added). As the Court wrote:
"It is war that exposes the relative vulnerability of the alien's status. The security and protection enjoyed while the nation of his allegiance remains in amity with the United States are greatly impaired when his nation takes up arms against us. . . . But disabilities this country lays upon the alien who becomes also an enemy are imposed temporarily as an incident of war and not as an incident of alienage."
Id. at 339 U. S. 771 -772.
The Court rejected the German nationals' efforts to obtain writs of habeas corpus not because they were foreign nationals, but because they were enemy soldiers.
The Insular Cases, Balzac v. Porto Rico, 258 U. S. 298 (1922), Ocampo v. United States, 234 U. S. 91 (1914), Dorr v. United States, 195 U. S. 138 (1904), and Hawaii v. Mankichi, 190 U. S. 197 (1903), are likewise inapposite. The Insular Cases all concerned whether accused persons enjoyed the protections of certain rights in criminal prosecutions brought by territorial authorities in territorial courts. These cases were limited to their facts long ago, see Reid v. Covert, 354 U. S. 1 , 354 U. S. 14 (1957) (plurality opinion) ("[I]t is our judgment that neither the cases nor their reasoning should be given any further expansion"), and they are of no analytical value when a criminal defendant seeks to invoke the Fourth Amendment in a prosecution by the Federal Government in a federal court. [ Footnote 2/11 ]
C
The majority's rejection of respondent's claim to Fourth Amendment protection is apparently motivated by its fear that application of the Amendment to law enforcement searches against foreign nationals overseas "could significantly disrupt the ability of the political branches to respond to foreign situations involving our national interest." Ante at 494 U. S. 273 -274. The majority's doomsday scenario -- that American Armed Forces conducting a mission to protect our national security with no law enforcement objective "would have to articulate specific facts giving them probable cause to undertake a search or seizure," ante at 494 U. S. 274 -- is fanciful. Verdugo-Urquidez is protected by the Fourth Amendment
because our Government, by investigating and prosecuting him, has made him one of "the governed." See supra, at 494 U. S. 284 , 494 U. S. 287 . Accepting respondent as one of "the governed," however, hardly requires the Court to accept enemy aliens in wartime as among "the governed" entitled to invoke the protection of the Fourth Amendment. See Johnson v. Eisentrager, supra.
Moreover, with respect to non-law enforcement activities not directed against enemy aliens in wartime but nevertheless implicating national security, doctrinal exceptions to the general requirements of a warrant and probable cause likely would be applicable more frequently abroad, thus lessening the purported tension between the Fourth Amendment's strictures and the Executive's foreign affairs power. Many situations involving sensitive operations abroad likely would involve exigent circumstances such that the warrant requirement would be excused. Cf. Warden v. Hayden, 387 U. S. 294 , 387 U. S. 298 (1967). Therefore, the Government's conduct would be assessed only under the reasonableness standard, the application of which depends on context. See United States v. Montoya de Hernandez, 473 U. S. 531 , 473 U. S. 537 (1985) ("What is reasonable depends upon all of the circumstances surrounding the search or seizure and the nature of the search or seizure itself").
In addition, where the precise contours of a "reasonable" search and seizure are unclear, the Executive Branch will not be "plunge[d] . . . into a sea of uncertainty," ante at 494 U. S. 274 , that will impair materially its ability to conduct foreign affairs. Doctrines such as official immunity have long protected Government agents from any undue chill on the exercise of lawful discretion. See, e.g., Butz v. Economou, 438 U. S. 478 (1978). Similarly, the Court has recognized that there may be certain situations in which the offensive use of constitutional rights should be limited. Cf. Bivens v. Six Unknown Fed. Narcotics Agents, 403 U. S. 388 , 403 U. S. 396 (1971) (precluding suits for damages for violations of the Fourth Amendment where there are "special factors
counseling hesitation"). In most cases implicating foreign policy concerns in which the reasonableness of an overseas search or seizure is unclear, application of the Fourth Amendment will not interfere with the Executive's traditional prerogative in foreign affairs because a court will have occasion to decide the constitutionality of such a search only if the Executive decides to bring a criminal prosecution and introduce evidence seized abroad. When the Executive decides to conduct a search as part of an ongoing criminal investigation, fails to get a warrant, and then seeks to introduce the fruits of that search at trial, however, the courts must enforce the Constitution.
Because the Fourth Amendment governs the search of respondent's Mexican residences, the District Court properly suppressed the evidence found in that search because the officers conducting the search did not obtain a warrant. [ Footnote 2/12 ] I cannot agree with Justice BLACKMUN and Justice STEVENS that the Warrant Clause has no application to searches
of noncitizens' homes in foreign jurisdictions because American magistrates lack the power to authorize such searches. [ Footnote 2/13 ] See post at 494 U. S. 297 (BLACKMUN, J., dissenting); ante at 494 U. S. 279 (STEVENS, J., concurring in judgment). The Warrant Clause would serve the same primary functions abroad as it does domestically, and I see no reason to distinguish between foreign and domestic searches.
The primary purpose of the warrant requirement is its assurance of neutrality. As Justice Jackson stated for
the Court in Johnson v. United States, 333 U. S. 10 , 333 U. S. 13 -14 (1948) (footnotes omitted):
"The point of the Fourth Amendment, which often is not grasped by zealous officers, is not that it denies law enforcement the support of the usual inferences which reasonable men draw from evidence. Its protection consists in requiring that those inferences be drawn by a neutral and detached magistrate instead of being judged by the officer engaged in the often competitive enterprise of ferreting out crime. Any assumption that evidence sufficient to support a magistrate's disinterested determination to issue a search warrant will justify the officers in making a search without a warrant would reduce the Amendment to a nullity and leave the people's homes secure only in the discretion of police officers. . . . When the right of privacy must reasonably yield to the right of search is, as a rule, to be decided by a judicial officer, not by a policeman or government enforcement agent."
See also Welsh v. Wisconsin, 466 U. S. 740 , 466 U. S. 748 -749, and n. 10 (1984); Coolidge v. New Hampshire, 403 U. S. 443 , 403 U. S. 449 (1971). A warrant also defines the scope of a search and limits the discretion of the inspecting officers. See New York v. Burger, 482 U. S. 691 , 482 U. S. 703 (1987); Marron v. United States, 275 U. S. 192 , 275 U. S. 196 (1927). These purposes would be served no less in the foreign than in the domestic context.
The Warrant Clause cannot be ignored simply because Congress has not given any United States magistrate authority to issue search warrants for foreign searches. See Fed. Rule Crim.Proc. 41(a). Congress cannot define the contours of the Constitution. If the Warrant Clause applies, Congress cannot excise the Clause from the Constitution by failing to provide a means for United States agents to obtain a warrant. See Best v. United States, 184 F.2d 131 , 138 (CA1 1950) ("Obviously, Congress may not nullify the guarantees of the Fourth Amendment by the simple expedient of
not empowering any judicial officer to act on an application for a warrant"), cert. denied, 340 U.S. 939 (1951).
Nor is the Warrant Clause inapplicable merely because a warrant from a United States magistrate could not "authorize" a search in a foreign country. Although this may be true as a matter of international law, it is irrelevant to our interpretation of the Fourth Amendment. As a matter of United States constitutional law, a warrant serves the same primary function overseas as it does domestically: it assures that a neutral magistrate has authorized the search and limited its scope. The need to protect those suspected of criminal activity from the unbridled discretion of investigating officers is no less important abroad than at home. [ Footnote 2/14 ]
When our Government conducts a law enforcement search against a foreign national outside of the United States and its territories, it must comply with the Fourth Amendment. Absent exigent circumstances or consent, it must obtain a
search warrant from a United States court. When we tell the world that we expect all people, wherever they may be, to abide by our laws, we cannot in the same breath tell the world that our law enforcement officers need not do the same. Because we cannot expect others to respect our laws until we respect our Constitution, I respectfully dissent.
[ Footnote 2/1 ]
Federal drug enforcement statutes written broadly enough to permit extraterritorial application include laws proscribing the manufacture, distribution, or possession with intent to manufacture or distribute controlled substances on board vessels, see 46 U.S.C.App. § 1903(h) (1982 ed., Supp. V) ("This section is intended to reach acts . . . committed outside the territorial jurisdiction of the United States"), the possession, manufacture, or distribution of a controlled substance for purposes of unlawful importation, see 21 U.S.C. § 959(c) (same), and conspiracy to violate federal narcotics laws, see Chua Han Mow v. United States, 730 F.2d 1308 ,
1311-1312 (CA9 1984) (applying 21 U.S.C. §§ 846 and 963 to conduct by a Malaysian citizen in Malaysia), cert. denied, 470 U. S. 1031 (1985).
[ Footnote 2/2 ]
The Sherman Act defines "person" to include foreign corporations, 15 U.S.C. § 7, and has been applied to certain conduct beyond the territorial limits of the United States by foreign corporations and nationals for at least 45 years. See United States v. Aluminum Co. of America, 148 F.2d 416, 443-444 (CA2 1945).
[ Footnote 2/3 ]
Foreign corporations may be liable under section 10(b) of the Securities Exchange Act of 1934, 15 U.S.C. § 78j(b), for transactions that occur outside the United States if the transactions involve stock registered and listed on a national securities exchange and the alleged conduct is "detrimental to the interests of American investors." Schoenbaum v. Firstbrook, 405 F.2d 200 , 208 (CA2 1968), rev'd on rehearing on other grounds, 405 F.2d 215 (CA2 1968) (en banc), cert. denied, sub nom. Manley v. Schoenbaum, 395 U.S. 906 (1969).
[ Footnote 2/4 ]
See e.g, 18 U.S.C. § 32(b) (violence against an individual aboard or destruction of any "civil aircraft registered in a country other than the United States while such aircraft is in flight"); § 111 (assaulting, resisting, or impeding certain officers or employees); § 115 (influencing, impeding, or retaliating against a federal official by threatening or injuring a family member); §§ 1114, 1117 (murder, attempted murder, and conspiracy to murder certain federal officers and employees); § 1201(a)(5) (kidnaping of federal officers and employees listed in § 1114); § 1201(e) (kidnaping of "an internationally protected person," if the alleged offender is found in the United States, "irrespective of the place where the offense was committed or the nationality of the victim or the alleged offender"); § 1203 (hostage taking outside the United States, if the offender or the person seized is a United States national, if the offender is found in the United States, or if "the governmental organization sought to be compelled is the Government of the United States"); § 1546 (fraud and misuse of visas, permits, and other immigration documents); § 2331 (terrorist acts abroad against United States nationals); 49 U.S. C.App. § 1472(n) (1982 ed. and Supp. V) (aircraft piracy outside the special aircraft jurisdiction of the United States, if the offender is found in the United States). Foreign nationals may also be criminally liable for numerous federal crimes falling within the "special maritime and territorial jurisdiction of the United States," which includes "[a]ny place outside the jurisdiction of any nation with respect to an offense by or against a national of the United States." 18 U.S.C. § 7(7). Finally, broad construction of federal conspiracy statutes may permit prosecution of foreign nationals who have had no direct contact with anyone or anything in the United States. See Ford v. United States, 273 U. S. 593 , 273 U. S. 619 -620 (1927).
[ Footnote 2/5 ]
None of the cases cited by the majority, ante at 494 U. S. 271 , require an alien's connections to the United States to be "voluntary" before the alien can claim the benefits of the Constitution. Indeed, Mathews v. Diaz, 426 U. S. 67 , 426 U. S. 77 (1976), explicitly rejects the notion that an individual's connections to the United States must be voluntary or sustained to qualify for constitutional protection. Furthermore, even if a voluntariness requirement were sensible in cases guaranteeing certain governmental benefits to illegal aliens, e.g., Plyler v. Doe, 457 U. S. 202 (1982) (holding that States cannot deny to illegal aliens the free public education they provide to citizens and legally documented aliens), it is not a sensible requirement when our Government chooses to impose our criminal laws on others.
[ Footnote 2/6 ]
In this discussion, the Court implicitly suggests that the Fourth Amendment may not protect illegal aliens in the United States. Ante at 494 U. S. 273 . Numerous lower courts, however, have held that illegal aliens in the United States are protected by the Fourth Amendment, and not a single lower court has held to the contrary. See, e.g., Benitez-Mendez v. INS, 760 F.2d 907 (CA9 1985); United States v. Rodriguez, 532 F.2d 834 , 838 (CA2 1976); Au YiLau v. INS, 144 U.S.App.D.C. 147, 156, 445 F.2d 217 , 225, cert. denied, 404 U.S. 864 (1971); Yam Sang Kwai v. INS, 133 U.S.App. D.C. 369, 372, 411 F.2d 683 , 686, cert. denied, 396 U.S. 877 (1969).
[ Footnote 2/7 ]
The Fourth Amendment contains no express or implied territorial limitations, and the majority does not hold that the Fourth Amendment is inapplicable to searches outside the United States and its territories. It holds that respondent is not protected by the Fourth Amendment because he is not one of "the people." Indeed, the majority's analysis implies that a foreign national who had "developed sufficient connection with this country to be considered part of [our] community" would be protected by the Fourth Amendment regardless of the location of the search. Certainly nothing in the Court's opinion questions the validity of the rule, accepted by every Court of Appeals to have considered the question, that the Fourth Amendment applies to searches conducted by the United States Government against United States citizens abroad. See, e.g., United States v. Conroy, 589 F.2d 1258 , 1264 (CA5), cert. denied, 444 U.S. 831 (1979); United States v. Rose, 570 F.2d 1358 , 1362 (CA9 1978). A warrantless, unreasonable search and seizure is no less a violation of the Fourth Amendment because it occurs in Mexicali, Mexico, rather than Calexico, California.
[ Footnote 2/8 ]
President John Adams traced the origins of our independence from England to James Otis' impassioned argument in 1761 against the British writs of assistance, which allowed revenue officers to search American homes wherever and whenever they wanted. Otis argued that "[a] man's house is his castle," 2 Works of John Adams 524 (C. Adams ed. 1850), and Adams declared that "[t]hen and there the child Independence was born." 10 Works of John Adams 248 (C. Adams ed. 1856).
[ Footnote 2/9 ]
The majority places an unsupportable reliance on the fact that the drafters used "the people" in the Fourth Amendment while using "person" and "accused" in the Fifth and Sixth Amendments respectively, see ante at 494 U. S. 265 -266. The drafters purposely did not use the term "accused." As the majority recognizes, ante at 494 U. S. 264 , the Fourth Amendment is violated at the time of an unreasonable governmental intrusion, even if the victim of unreasonable governmental action is never formally "accused" of any wrongdoing. The majority's suggestion that the drafters could have used "person" ignores the fact that the Fourth Amendment then would have begun quite awkwardly: "The right of persons to be secure in their persons. . . . "
[ Footnote 2/10 ]
The only historical evidence the majority sets forth in support of its restrictive interpretation of the Fourth Amendment involves the seizure of French vessels during an "undeclared war" with France in 1798 and 1799. Because opinions in two Supreme Court cases, 6 U. S. 268 , the majority deduces that those alive when the Fourth Amendment was adopted did not believe it protected foreign nationals. Relying on the absence of any discussion of the Fourth Amendment in these decisions, however, runs directly contrary to the majority's admonition that the Court only truly decides that which it "expressly address[es]." Ante at 494 U. S. 272 (discussing INS v. Lopez-Mendoza, 468 U. S. 1032 (1984)). Moreover, the Court in Little found that the American commander had violated the statute authorizing seizures, thus rendering any discussion of the constitutional question superfluous. See, e.g., Ashwander v. TVA, 297 U. S. 288 , 297 U. S. 347 (1936) (Brandeis, J., concurring). And in Talbot, the vessel's owners opposed the seizure on purely factual grounds, claiming the vessel was not French. Furthermore, although neither Little nor Talbot expressly mentions the Fourth Amendment, both opinions adopt a "probable cause" standard, suggesting that the Court may have either applied or been informed by the Fourth Amendment's standards of conduct. Little, supra, at 2 Cranch 6 U. S. 179 ; Talbot, supra,@ 1 Cranch at 5 U. S. 31 -32 (declaring that "where there is probable cause to believe the Vessel met with at sea is in the condition of one liable to capture, it is lawful to take her, and subject her to the examination and adjudication of the courts").
[ Footnote 2/11 ]
The last of the Insular Cases cited by the majority, Downes v. Bidwell, 182 U. S. 244 (1901), is equally irrelevant. In Downes, the Court held that Puerto Rico was not part of "the United States" with respect to the constitutional provision that "all Duties, Imposts and Excises shall be uniform throughout the United States," U.S. Const., Art. 1, § 8, cl. 1. 182 U.S. at 182 U. S. 249 . Unlike the uniform duties clause, the Fourth Amendment contains no express territorial limitations. See n. 7, supra.
[ Footnote 2/12 ]
The District Court found no exigent circumstances that would justify a warrantless search. After respondent's arrest in Mexico, he was transported to the United States and held in custody in southern California. Only after respondent was in custody in the United States did the Drug Enforcement Administration (DEA) begin preparations for a search of his Mexican residences. On the night respondent was arrested, DEA Agent Terry Bowen contacted DEA Special Agent Walter White in Mexico to seek his assistance in conducting the search. Special Agent White contacted Mexican officials the next morning and at 1 p.m. authorized Agent Bowen to conduct the search. A team of DEA agents then drove to Mexico, met with Mexican officials, and arrived at the first of respondent's two residences after dark. 856 F.2d 1214 , 1226 (CA9 1988). The search did not begin until approximately 10 p.m. the day after respondent was taken into custody.App. to Pet. for Cert. 101a. In all that time, particularly when respondent and Agent Bowen were both in the United States and Agent Bowen was awaiting further communications from Special Agent White, DEA agents could easily have sought a warrant from a United States Magistrate.
[ Footnote 2/13 ]
Justice STEVENS concurs in the judgment because he believes that the search in this case "was not unreasonable' as that term is used in the first clause of the Amendment." Ante at 494 U. S. 279 . I do not understand why Justice STEVENS reaches the reasonableness question in the first instance rather than remanding that issue to the Court of Appeals. The District Court found that, even if a warrant were not required for this search, the search was nevertheless unreasonable. The court found that the search was unconstitutionally general in its scope, as the agents were not limited by any precise written or oral descriptions of the type of documentary evidence sought.App. to Pet. for Cert. 102a. Furthermore, the Government demonstrated no specific exigent circumstances that would justify the increased intrusiveness of searching respondent's residences between 10 p.m. and 4 a.m., rather than during the day. Id. at 101a. Finally, the DEA agents who conducted the search did not prepare contemporaneous inventories of the items seized or leave receipts to inform the residents of the search and the items seized. Id. at 102a. Because the Court of Appeals found that the search violated the Warrant Clause, it never reviewed the District Court's alternative holding that the search was unreasonable even if no warrant were required. Thus, even if I agreed with Justice STEVENS that the Warrant Clause did not apply in this case, I would remand to the Court of Appeals for consideration of whether the search was unreasonable. Barring a detailed review of the record, I think it is inappropriate to draw any conclusion about the reasonableness of the Government's conduct, particularly when the conclusion reached contradicts the specific findings of the District Court.
Justice KENNEDY rejects application of the Warrant Clause not because of the identity of the individual seeking protection, but because of the location of the search. See ante at 494 U. S. 278 (KENNEDY, J., concurring) ("[T]he Fourth Amendment's warrant requirement should not apply in Mexico as it does in this country"). Justice KENNEDY, however, never explains why the reasonableness clause, as opposed to the Warrant Clause, would not apply to searches abroad.
[ Footnote 2/14 ]
The United States Government has already recognized the importance of these constitutional requirements by adopting a warrant requirement for certain foreign searches. Department of the Army regulations state that the Army must seek a "judicial warrant" from a United States court whenever the Army seeks to intercept the wire or oral communications of a person not subject to the Uniform Code of Military Justice outside of the United States and its territories. Army Regulation 190-53 ? 2-2(b) (1986). Any request for a judicial warrant must be supported by sufficient facts to meet the probable cause standard applied to interceptions of wire or oral communications in the United States, 18 U.S.C. § 2518(3). Army Regulation 190-53 ? 2-2(b). If the foreign country in which the interception will occur has certain requirements that must be met before other nations can intercept wire or oral communications, an American judicial warrant will not alone authorize the interception under international law. Nevertheless, the Army has recognized that an order from a United States court is necessary under domestic law. By its own regulations, the United States Government has conceded that although an American warrant might be a "dead letter" in a foreign country, a warrant procedure in an American court plays a vital and indispensable role in circumscribing the discretion of agents of the Federal Government.
Justice BLACKMUN, dissenting.
I cannot accept the Court of Appeals' conclusion, echoed in some portions of Justice BRENNAN's dissent, that the Fourth Amendment governs every action by an American official that can be characterized as a search or seizure. American agents acting abroad generally do not purport to exercise sovereign authority over the foreign nationals with whom they come in contact. The relationship between these agents and foreign nationals is therefore fundamentally different from the relationship between United States officials and individuals residing within this country.
I am inclined to agree with Justice BRENNAN, however, that when a foreign national is held accountable for purported violations of United States criminal laws, he has effectively been treated as one of "the governed" and therefore is entitled to Fourth Amendment protections. Although the Government's exercise of power abroad does not ordinarily implicate the Fourth Amendment, the enforcement of domestic criminal law seems to me to be the paradigmatic exercise of sovereignty over those who are compelled to obey. In any event, as Justice STEVENS notes, ante at 494 U. S. 279 , respondent was lawfully (though involuntarily) within this country at the time the search occurred. Under these circumstances I believe that respondent is entitled to invoke protections of the Fourth Amendment. I agree with the Government, however, that an American magistrate's lack of power to authorize a search abroad renders the Warrant Clause inapplicable to the search of a noncitizen's residence outside this country.
The Fourth Amendment nevertheless requires that the search be "reasonable." And when the purpose of a search is
the procurement of evidence for a criminal prosecution, we have consistently held that the search, to be reasonable, must be based upon probable cause. Neither the District Court nor the Court of Appeals addressed the issue of probable cause, and I do not believe that a reliable determination could be made on the basis of the record before us. I therefore would vacate the judgment of the Court of Appeals and remand the case for further proceedings.
Analysts at the Federal Reserve of New York have proposed creating a lender cooperative to replace Fannie Mae and Freddie Mac .
The cooperative model is laid out in a 19-page staff report that includes six principles for the reorganization of the U.S. housing market and how they apply to the proposed facility.
According to the report, membership in the cooperative would include both large and small lenders, as well as banks and non-banks.
"Capital Waterfall for a Private Lender Cooperative Utility
The lender cooperative would focus on the “core” of the housing market, letting the FHA take the
lead on programs for first-time homebuyers as well as mortgage products to make homeownership
more affordable for low-income households. We anticipate that this core market would contain only
a few standard mortgage products such as the 30-year fixed rate mortgage and plain vanilla
adjustable rate mortgages. Innovation in mortgage products would occur in the periphery of the
market outside of the cooperative. Products could be considered to be added to the core product set
only after sufficient history on these products has been accumulated to be able to estimate the
government's tail risk premium. Since the tail risk is explicitly priced by the government, there is a
good argument for the government to avoid “taxing” the lender cooperative to support any specific
housing initiatives or assigning it any housing subsidy mandates. The possibility that the tail-risk
insurance may be underpriced does not in our opinion make a good case for placing affordable
housing mandates on the cooperative. A better response would be to adjust the price for the
insurance and to focus the mandates in a government entity such as the FHA. However, even a tax
is better than quotas or other targets that would distort the cooperative's business decisions."
Restoration Partners Break Ground for Battle Creek Salmon and Steelhead Restoration Project
Published on Sep 16, 2010 - 5:50:31 AM
By: U.S. Bureau of Reclamation
Sept. 15, 2010 - Today's 2 p.m. groundbreaking ceremony for the Battle Creek Salmon and Steelhead Restoration Project culminated in representatives from the Bureau of Reclamation, Pacific Gas and Electric, U.S. Fish and Wildlife Service, National Marine Fisheries Service, and California Department of Fish and Game symbolically turning a wheel at Coleman Dam along the banks of the South Fork of Battle Creek near Manton, Calif. This signifies a decade of commitment and dedication to this important effort.
About 100 people attended the ceremony and all attendees were invited to the Battle Creek Water Conservancy annual meeting and dinner in the evening.
Speaking at the event was Monica Medina, Principal Deputy Undersecretary for Oceans and Atmosphere for the National Oceanic and Atmospheric Administration together with Michael Connor, Commissioner, Bureau of Reclamation; Randy Livingston, Vice President of Power Generation, PG&E; Neil Manji, Regional Manager, Northern Region, California Department of Fish and Game; and Robert Clarke, Acting Assistant Regional Director, U.S. Fish and Wildlife Service.
PG&E's Livingston said “PG&E's early and full participation in the project is a reflection of our commitment to environmental stewardship.”
"Reclamation and its partners and contributors are embarking on a historic restoration of valuable habitat in Battle Creek," said Reclamation Commissioner Michael Connor. "And by improving fish populations, the reliability in state and federal water operations as well as the salmon harvest will also be improved."
Robert Clarke, Acting Assistant Regional Director, U.S. Fish and Wildlife Service, added "It is because of the continuing stewardship and support of natural resources of the Battle Creek watershed by the local community, that this project is now being implemented."
PG&E is foregoing of nearly one-third of hydroelectric production of this facility, or 69 gigawatt hours of generation per year, and will maintain the newly built infrastructure. The utility also bore costs of a federal license amendment to allow the restoration work.
The restoration project is among one of the largest cold-water anadromous fish restoration efforts in North America. The project will restore approximately 42 miles of habitat on Battle Creek and an additional 6 miles of habitat on tributaries to Battle Creek while maintaining the continued production of hydroelectric power. This is a unique opportunity because of the geology, hydrology, and habitat suitability for threatened and endangered Chinook salmon and Central Valley steelhead trout. The project is in Shasta and Tehama counties near Manton, Calif.
In 1999, a Memorandum of Understanding between PG&E, Bureau of Reclamation, U.S. Fish and Wildlife Service, National Marine Fisheries Service and the California Department of Fish and Game was signed committing each to the restoration project. In addition, numerous partners have played an important role in bringing this project forward.
Funding for the restoration project has been provided by federal and state agencies, including $6.8 million by the American Recovery and Reinvestment Act of 2009, and through private donations. Additional financial support was provided by CALFED; the Packard Foundation (via The Nature Conservancy); the California Wildlife Conservation Board; the California Department of Fish and Game; the California Department of Transportation; the Battle Creek Watershed Conservancy; the Greater Battle Creek Watershed Working Group; the Metropolitan Water District of Southern California; the California Department of Water Resources; and the Iron Mountain Mine Trustee Council. PG&E is contributing to the restoration project in the form of foregone energy generation, voluntarily pursuing amendments to the Battle Creek Hydroelectric Project's federal energy generation license, and transferring certain water rights to the California Department of Fish and Game.
Two construction contracts were awarded late 2009, and on-site construction began at the Wildcat, Eagle Canyon and North Battle Creek Feeder sites on North Fork Battle Creek in April 2010. Wildcat Dam has recently been removed, and construction crews are installing fish ladders and screens at the Eagle Canyon and North Battle Creek Feeder Diversion Dam sites. A third construction contract was awarded in June 2010, and includes building a bypass and tailrace connector at the Inskip Powerhouse/Coleman Diversion Dam site on the South Fork of Battle Creek. The construction phase of the project is anticipated to be completed in 2014. The adaptive management phase for the project will begin after construction is complete. More information about the project is posted on the Battle Creek Watershed Conservancy's Web site.
FRANKFORT, Ky. -- Kentucky has received about $3.3 million in federal grants to help 10 communities and organizations protect water sources from being polluted by runoff. Gov. Steve Beshear said Monday that the grants will help develop watershed management plans and implement pollution controls. The projects are funded under the federal Clean Water Act and administered by the state Division of Water. Pollution from runoff is a big cause of fouling streams, lakes and rivers in Kentucky. It occurs when rainfall or snowmelt moves over the ground, picking up loose soil and pollutants along the way. The 10 Kentucky projects selected for funding must provide 40 percent in matching funds.
Sub specie mali : The stream of thought flows on; but most of its segments fall into the bottomless abyss of oblivion. Of some, no memory survives the instant of their passage. Of others, it is confined to a few moments, hours or days. Others, again, leave vestiges which are indestructible, and by means of which they may be recalled as long as life endures. -William James
